Exhibit 10.23
Consulting Agreement between the Company and Rick Kauffman dated
June 6, 2008
EXCLUSIVE
CONSULTING AGREEMENT
THIS EXCLUSIVE CONSULTING
AGREEMENT (the “Agreement”), made, entered into this
6th day of
June, 2008 (the
“Effective Date”), by and between Kauffman Consulting,
LLC, a Tennessee limited liability
company with a principal
place of business located at 3280 Emma Marie Place, Buford, Georgia
30519
(hereinafter referred to
as "Consultant"), and Sunovia Energy Technologies, Inc., a Nevada
corporation with
its principal place of
business at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243
(hereinafter
referred to as
"Corporation").
W I T N E S S
E T H:
WHEREAS,
Consultant desires to
provide consulting services for the Corporation as an
independent
contractor, with the
understanding that Consultant shall on a best effort basis unless
providentially hindered
by personal illness,
family illness or other emergencies such as encountered by normal
employees, devote a
minimum of 40 hours and
up to a maximum of 128 hours per week of its and its employees time
to the
business of the
Corporation and shall work solely for the benefit of the
Corporation. The Corporation
guarantees the Consultant
the ability to work up to 128 hours per week on all approved
projects.
NOW,
THEREFORE, in
consideration of the premises, the mutual covenants of the parties
herein
contained and other good
and valuable consideration, the receipt and sufficiency of which
are hereby
acknowledged by each of
the parties hereto, it is agreed as follows:
1. CONSULTING
ARRANGEMENT. The Corporation hereby contracts for
the services of
Consultant and Consultant
agrees to perform such duties and responsibilities on an exclusive
basis on behalf
of the Corporation and to
render advice and consulting as may be requested by the Corporation
during the
term of this consulting
arrangement in connection with the Corporation's business
throughout the United
States and world wide
("Consulting Arrangement"); provided, however, Consultant shall be
permitted to
provide all necessary
services relating to its existing clients or their successors (the
“Non-LED Clients”), a list
of which has been
provided to the President of the Corporation, which such services
will in no way relate to
solar, solid state
lighting or LED products and will not interfere with
Consultant’s time commitment (the
“Excepted
Services”). Said consulting services shall include, but not
be limited to, those services set forth on
Schedule 1 attached
hereto. The details with respect to each project (the
“Project”) assigned to Consultant,
including specific design
responsibility, deliverables and hour estimates (the “Project
Specifics”) will be
agreed to by the
President or designee (the “Corporation Designated
Representative”) and Consultant upon
each Project being
assigned to Consultant. Consultant shall use its best efforts to
keep the Corporation
informed of all corporate
business opportunities which shall come to its attention and appear
beneficial to the
Corporation's business so
that the Corporation can obtain the maximum benefits from
Consultant's and its
employees knowledge,
experience, and personal contacts. In the event that Consultant
should generate
revenue
(“Consultant Revenue”) outside of the scope of the
Consulting Arrangement except for revenue
relating to the Excepted
Services, then the Consultant shall pay such revenue to the
Corporation. All
Consultant Revenue
projects shall be approved in advance in writing by a Corporation
Designated
Representative. The
status of the Consulting Arrangement and the provision of the
services pursuant to the
Consulting Arrangement
including the status of each Project and the Project Specifics
shall be reviewed on a
biannual basis by the
Corporation Designated Representative. The Consultant shall use its
best efforts to
transition Non-LED
Clients to Corporation’s products.
2.
RELATIONSHIP BETWEEN PARTIES. During the term of the Consulting
Arrangement,
Consultant shall be
deemed to be an independent contractor. Consultant shall not be
considered as having an
employee status vis-a-vis
the Corporation, or by virtue of the Consulting Arrangement being
entitled to
participate in any plans,
arrangements or distributions by the Corporation pertaining to or
in connection with
any pension, stock,
bonus, profit sharing, welfare benefits, insurance benefits, 401(k)
or similar benefits for
the regular employees of
the Corporation. The Corporation shall not withhold any taxes in
connection with
the compensation due
Consultant hereunder, and Consultant will be responsible for the
payment of any such
taxes and hereby agrees
to indemnify the Corporation against nonpayment thereof.
3.
COMPENSATION FOR THE CONSULTING ARRANGEMENT.
As consideration for
the
services to be rendered
under the Consulting Arrangement by Consultant and as compensation
for the income
it could have otherwise
earned if it had not agreed to keep himself available to the
Corporation hereunder, the
Corporation shall pay the
Consultant the following compensation:
3.1
Cash
Compensation. Consultant shall be paid on an hourly
basis of $81.31 per hour. A
higher hourly rate is
acceptable when the rate has been mutually agreed to by the
Consultant and Corporation
Designated
Representative. Within seven (7) days of the end of every month,
Consultant shall provide the
Corporation with a
detailed invoice specifying the work performed during the previous
month and the time
spent on a daily basis.
If the Corporation does not have an objection to the invoice, the
Corporation shall then
pay the Consultant within
ten (10) business days of receipt of the Consultant’s
invoice.
3.2
Equity
Compensation. Stock options, substantially in the
form attached hereto as Schedule
3.2, to purchase an
aggregate of 3,000,000 shares of common stock of the Corporation,
which shall vest as
follows: 500,000 on the
date of this Agreement (the “Initial Option”), 500,000
upon the successful
demonstration of the
EvoLucia Roadway Lighting System in Fairview, Texas (the
“Fairview Option”),
1,000,000 during the
second year of the Consulting Period vesting at the rate of 250,000
per quarter at the
completion of each
quarter (“Year Two Options”) and 1,000,000 during the
third year of the third year of the
Consulting Period vesting
at the rate of 250,000 per quarter at the completion of each
quarter (“Year Three
Options”). In
addition, during any Extended Consulting Period (as defined below),
Consultant shall be
granted an option to
purchase 125,000 shares of common stock of the Corporation, which
shall vest at the end
of each Extended
Consulting Period (as defined below)(the “Extension
Options”). All options shall have a
term of five years. The
Initial Option shall have an exercise of $0.10. The Fairview
Option, Year Two
Options, the Year Three
Options and the Extension Options shall have an exercise price
equal to the average
minimum bid price for the
thirty calendar days prior to such grant multiplied by
.50.
The Consultant shall be
separately compensated by the Corporation for services that are
outside the
scope of Section 1 of
this Agreement (“Additional Services”) however it is
not expected that such Additional
Services will be
required. All design tools shall be purchased and maintained by the
Consultant unless such
purchase is agreed to by
the Corporation and in such case such design tool shall be property
of the
Corporation.
4. TERM OF
CONSULTING ARRANGEMENT. Either party may terminate this
Agreement upon
30 days written notice to
the other party. However, if the Consultant terminates this
Agreement it shall
continue to provide
consulting services on an hourly basis in order to finalize all
open or current Projects.
5.
CONFIDENTIALITY COVENANTS.
5.1
Acknowledgments
by the Consultant. The Consultant acknowledges that (a)
during the
Consulting Period and as
a part of his Consulting Arrangement, the Consultant will be
afforded access to
Confidential Information
(as defined below); (b) public disclosure of such Confidential
Information could
have an adverse effect on
the Corporation and its business; (c) because the Consultant
possesses substantial
technical expertise and
skill with respect to the Corporation's business, the Corporation
desires to obtain
exclusive ownership of
each Consultant Invention (as defined below), and the Corporation
will be at a
substantial competitive
disadvantage if it fails to acquire exclusive ownership of each
Consultant Invention;
(d) the provisions of
this Section 5 are reasonable and necessary to prevent the improper
use or disclosure of
Confidential Information
and to provide the Corporation with exclusive ownership of all
Consultant
Inventions.
5.2
Agreements
of the Consultant. In consideration of the compensation
and benefits to be paid
or provided to the
Consultant by the Corporation under this Agreement, the Consultant
covenants as follows:
(a)
Confidentiality.
(i) During and following
the Consulting Period, the Consultant will hold in
confidence the
Confidential Information and will not disclose it to any person
except with the specific prior
written consent of the
Corporation or except as otherwise expressly permitted by the terms
of this Agreement.
(ii) Any trade secrets of
the Corporation will be entitled to all of the
protections
and benefits under
Florida law and any other applicable law. If any information that
the Corporation deems to
be a trade secret is
found by a court of competent jurisdiction not to be a trade secret
for purposes of this
Agreement, such
information will, nevertheless, be considered Confidential
Information for purposes of this
Agreement. The Consultant
hereby waives any requirement that the Corporation submit proof of
the economic
value of any trade secret
or post a bond or other security.
(iii) None of the
foregoing obligations and restrictions applies to any part of
the
Confidential Information
that the Consultant demonstrates was or became generally available
to the public
other than as a result of
a disclosure by the Consultant.
(iv) The Consultant will
not remove from the Corporation's premises (except to
the extent such removal
is for purposes of the performance of the Consultant's duties at
home or while
traveling, or except as
otherwise specifically authorized by the Corporation) any document,
record, notebook,
plan, model, component,
device, or computer software or code, whether embodied in a disk or
in any other
form (collectively, the
"Proprietary Items"). The Consultant recognizes that, as between
the Corporation and
the Consultant, all of
the Proprietary Items, whether or not developed by the Consultant,
are the exclusive
property of the
Corporation. Upon termination of this Agreement by either party, or
upon the request of the
Corporation during the
Consulting Period, the Consultant will return to the Corporation
all of the Proprietary
Items in the Consultant's
possession or subject to the Consultant's control, and the
Consultant shall not retain
an
