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Exhibit
10.8
EXECUTIVE EMPLOYMENT
AGREEMENT
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 1358
Fruitville Rd., Suite 209, Sarasota, Florida, 34236 (the "Company")
and Carl L-Smith, residing at 847 MacEwen Drive, Osprey, Florida
34229 (“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 Executive
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 Executive 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 Executive as defined from time to time
by
the Cmpany'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.
(a) Base
Salary. Executive's annual base salary
as of the Effective Date is 2,000,000 shares of restricted common
stock. 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:
For each year of service during the Term of this Agreement,
beginning on June 29
th ,
2007, including extensions, Executive shall be entitled to
receive two million (2,000,000) 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.
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 produ
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