Attached files
| file | filename |
|---|---|
| 10-K - SUNOVIA FORM 10-K - Evolucia Inc. | form10k.htm |
| EX-32.1 - EXHIBIT 32.1 - Evolucia Inc. | ex321.htm |
| EX-31.2 - EXHIBIT 31.2 - Evolucia Inc. | ex312.htm |
| EX-31.1 - EXHIBIT 31.1 - Evolucia Inc. | ex311.htm |
| EX-10.44 - EXHIBIT 10.44 - Evolucia Inc. | ex1044.htm |
| EX-10.39 - EXHIBIT 10.39 - Evolucia Inc. | ex1039.htm |
| EX-10.40 - EXHIBIT 10.40 - Evolucia Inc. | ex1040.htm |
| EX-10.36 - EXHIBIT 10.36 - Evolucia Inc. | ex1036.htm |
| EX-10.37 - EXHIBIT 10.37 - Evolucia Inc. | ex1037.htm |
| EX-10.38 - EXHIBIT 10.38 - Evolucia Inc. | ex1038.htm |
| EX-10.41 - EXHIBIT 10.41 - Evolucia Inc. | ex1041.htm |
| EX-10.42 - EXHIBIT 10.42 - Evolucia Inc. | ex1042.htm |
Exhibit
10.43
EMPLOYMENT
AGREEMENT
AGREEMENT effective as of the
11th day of November 2009, by and among Sunovia Energy Technologies, Inc., a
Nevada corporation with its principal office located at 6408 Parkland Drive,
Suite 104, Sarasota, Fl 34243 (the “Sunovia” or the “Company”), and Carl Smith
with a business address located at 847 MacEwen Drive, Osprey, Florida 34229
(“Employee”).
W I T N E S S E T
H:
WHEREAS, Sunovia has engaged
the Employee for services and desires to continue to obtain the benefits of
Employee’s knowledge, skill and ability and to continue to employ Employee on
the terms and conditions hereinafter set forth; and
WHEREAS, Employee desires to
provide his services to the Company and to accept employment by the Company on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in
consideration of the mutual promises set forth in this Agreement, the parties
agree as follows:
1. Employment and
Duties.
(a) Subject
to the terms and conditions hereinafter set forth, the Company hereby employs
Employee as Chief Executive (the “Position”) of Sunovia during the Term, as
hereinafter defined. Employee shall have the duties and
responsibilities associated with the Position. Employee shall report
to the Company’s chief executive officer. Employee shall also perform
such other duties and responsibilities as may be determined by the Company’s
board of directors (the “Board”), as long as such duties and responsibilities
are consistent with the Position.
(b) The
“Term” shall mean the period commencing on the date of this Agreement and ending
three (3) years from the date of this Agreement, unless terminated earlier
pursuant to Section 5 of this Agreement. The Term shall automatically
renew for successive one (1) year periods unless either party provides written
notice to the other party thirty (30) days prior to the termination of such Term
of its intent to terminate this Agreement at the end of the Term or terminated
pursuant to Section 5 of this Agreement.
2. Employee’s
Performance. Employee hereby accepts the employment
contemplated by this Agreement. During the Term, Employee shall perform his
duties diligently, in good faith and in a manner consistent with the best
interests of the Company, and shall devote substantially all of his business
time to the performance of his duties under this Agreement.
3. Compensation and
Benefits. The
Company shall pay compensation to Employee 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, Employee
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 Employee’s status in the Company.
(a) Base
Salary. Employee’s annual base salary as of the Effective Date is
2,000,000 shares of restricted common stock. Employee’s base salary
shall be reviewed annually in conjunction with Employee’s annual performance
review and may be adjusted as appropriate in light of Employee’s
performance. Employee’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 Employee the following as
Incentive Compensation, in addition to Base Salary:
2,000,000
shares payable on January 1, 2010.
(c) Benefits. Employee
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
employees of Executive’s level or its employees generally (the
“Benefits”).
4. Reimbursement of
Expenses. The Company shall reimburse Employee, upon
presentation of proper expense statements, for all authorized, ordinary and
necessary out-of-pocket expenses reasonably incurred by Employee during the Term
in connection with the performance of his services pursuant to this Agreement in
accordance with the Company’s expense reimbursement policy.
5. Termination of
Employment. The Company may terminate this Agreement and
Employee’s employment pursuant to this Agreement immediately for any reason
whatsoever, in which event no further compensation shall be payable to Employee
subsequent to the date of such termination except for accrued compensation
earned prior to the date of termination. Further, any
options that have been granted to the Employee but have not vested shall be
terminated immediately upon termination.
6. Trade Secrets and
Proprietary Information.
(a) Employee
recognizes and acknowledges that the Company, through the expenditure of
considerable time and money, has developed and will continue to develop in the
future confidential information. “Confidential information” shall
mean all information of a proprietary or confidential nature relating to Covered
Persons, including, but not limited to, such Covered Person’s trade secrets or
proprietary information, confidential know-how, and marketing, services,
products, business, research and development activities, inventions and
discoveries, whether or not patentable, and information concerning such Covered
Person’s services, business, customer or client lists, proposed services,
marketing strategy, pricing policies and the requirements of its clients and
relationships with its lenders, suppliers, licensors, licensees and others with
which a Covered Person has a business relationship, financial or other data,
technical data or any other confidential or proprietary information possessed,
owned or used by the Company, the disclosure of which could or does have a
material adverse effect on the Company, its businesses, any business in which it
proposes to engage. Employee agrees that he will not at any time use
or disclose to any Person any confidential information relating to the Company
or any affiliate of the Company or any client of the Company which provided
confidential information to Employee; provided, however, that nothing in this
Section 6(a) shall be construed to prohibit Employee from using or disclosing
such information if he can demonstrate that such information (i) became public
knowledge other than by or as a result of disclosure by a Person not having a
right to make such disclosure or (ii) was disclosure that was authorized by the
Company. The term “Covered Person” shall include the Company and
subsidiaries and any other Person who provides information to the Company
pursuant to a secrecy or non-disclosure agreement.
(b) In the
event that any confidential information is required to be produced by Employee
pursuant to legal process (including judicial process or governmental
administrative subpoena), Employee shall give the Company notice of such legal
process within a reasonable time, but not later than ten business days prior to
the date such disclosure is to be made, unless Employee has received less
notice, in which event Employee shall immediately notify the
Company. The Company shall have the right to object to any such
disclosure, and if the Company objects (at the Company’s cost and expense) in a
timely manner so that Employee is not subject to penalties for failure to make
such disclosure, Employee shall not make any disclosure until there has been a
court determination on the Company’s objections. If disclosure is
required by a court order, final beyond right of review, or if the Company does
not object to the disclosure, Employee shall make disclosure only to the extent
that disclosure is required by the court order, and Employee will exercise
reasonable efforts at the Company’s expense, to obtain reliable assurance that
confidential treatment will be accorded the Confidential
Information.
(c) Employee
shall, upon expiration or termination of the Term, or earlier at the request of
the Company, turn over to the Company or destroy all documents, papers, computer
disks or other material in Employee’s possession or under Employee’s control
which may contain or be derived from confidential information. To the
extent that any confidential information is on Employee’s hard drive or other
storage media, he shall, upon the request of the Company, cause either such
information to be erased from his computer disks and all other storage media or
otherwise take reasonable steps to maintain the confidential nature of the
material.
(d) Employee
further realizes that any trading in the Company’s common stock or other
securities or aiding or assisting others in trading in the Company’s common
stock or other securities, including disclosing any non-public information
concerning the Company or its affiliates to a Person who uses such information
in trading in the Company’s common stock or other securities, may constitute a
violation of federal and state securities laws. Employee will not
engage in any transactions involving the Company’s common stock or other
securities while in the possession of material non-public information in a
manner that would constitute a violation of federal and state securities
laws.
(e) For the
purposes of Sections 6, 7, 8 and 9 of this Agreement, the term “Company”
shall include the Company, its subsidiaries and affiliates.
7. Covenant Not To Solicit or
Compete.
(a) During
the period from the date of this Agreement until two years following the date on
which Employee’s employment is terminated, Employee will not, directly or
indirectly:
(i) persuade
or attempt to persuade any Person which is or was a customer, client or supplier
of the Company to cease doing business with the Company, or to reduce the amount of
business it does with the Company (the terms “customer” and “client” as used in
this Section 7 to include any potential customer or client to whom the
Company submitted bids or proposals, or with whom the Company conducted
negotiations, during the term of Employee’s employment or consulting
relationship hereunder or during the twelve (12) months preceding the
termination of his employment or consulting relationship, as the case may
be);
(ii) solicit
for himself or any other Person other than the Company the business of any
Person which is a customer or client of the Company, or was a customer or client
of the Company within one (1) year prior to the termination of his employment or
consulting relationship;
(iii) persuade
or attempt to persuade any employee of the Company, or any individual who was an
employee of the Company during the one (1) year period prior to the lawful and
proper termination of this Agreement, to leave the Company’s employ, or to
become employed by any Person in any business in the United States whether as an
officer, director, consultant, partner, guarantor, principal, agent, employee,
advisor or in any manner, which directly competes with the business of the
Company as it is engaged in at the time of the termination of this Agreement,
provided, however, that nothing in this Section 7 shall be construed to
prohibit the Employee from owning an interest of not more than five (5%) percent
of any public company engaged in such activities.
(b) During
the period from the date of this Agreement until two years following the date on
which Employee’s employment is terminated, Employee will not, directly or
indirectly become an officer, director, more than 5% stockholder, partner,
associate, employee, owner, proprietor, agent, creditor, independent contractor,
co-venturer or otherwise, or be interested in or associated with any other
corporation, firm or business engaged in the Territory (as hereinafter defined)
in the same or any similar business competitive with that of the Company
(including the Company's present and future subsidiaries and affiliates) as such
business shall exist on the day of this Agreement and during Employee's
Term. The territory of this Agreement shall be throughout the United
States (the "Territory")
(c) Employee
will not, during or after the Term, make any disparaging statements concerning
the Company, its business, officers, directors and employees that could injure,
impair, damage or otherwise affect the relationship between the Company, on the
one hand, and any of the Company’s employees, suppliers, customers, clients or
any other Person with which the Company has or may conduct business or otherwise
have a business relationship of any kind and description; provided, however,
that this sentence shall not be construed to prohibit either from giving factual
information required to be given pursuant to legal process, subject to the
provisions of Section 6(b) of this Agreement. The Company will not
make any disparaging statements concerning Employee. This Section
7(b) shall not be construed to prohibit the either party from giving factual
information concerning the other party in response to inquiries that such party
believes are bona fide.
(d) The
Employee acknowledges that the restrictive covenants (the “Restrictive
Covenants”) contained in Sections 6 and 7 of this Agreement are a condition
of his employment and are reasonable and valid in geographical and temporal
scope and in all other respects. If any court determines that any of the
Restrictive Covenants, or any part of any of the Restrictive Covenants, is
invalid or unenforceable, the remainder of the Restrictive Covenants and parts
thereof shall not thereby be affected and shall remain in full force and effect,
without regard to the invalid portion. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable because
of the geographic or temporal scope of such provision, such court shall have the
power to reduce the geographic or temporal scope of such provision, as the case
may be, and, in its reduced form, such provision shall then be
enforceable.
(e) Nothing
in this Section 7 shall be construed to prohibit Employee from owning a passive,
non-management interest of less than 5% in any public company that is engaged in
activities prohibited by this Section 7.
8. Inventions and
Discoveries. Employee agrees promptly to disclose in writing to the
Company any invention, design, system, process, development or other discovery
or intellectual property (collectively, “inventions and discoveries”) conceived,
created or made by him during the Term, whether created or developed by himself
or with others, whether during or after working hours, in any business in which
the Company is then engaged or which otherwise relates to any product or service
dealt in by the Company and such inventions and discoveries shall be the
Company’s sole property, regardless of whether such inventions and discoveries
are otherwise treated as work performed for hire and regardless of whether such
inventions and discoveries are or can be patented, registered or copyrighted.
Upon the Company’s request, and at the Company’s cost and expense, Employee
shall execute and assign to the Company all applications for copyrights,
trademarks and letters patent of the United States and such foreign countries as
the Company may designate, and Employee shall execute and deliver to the Company
such other instruments as the Company deems necessary to vest in the Company the
sole ownership of all rights, title and interest in and to such inventions and
discoveries, as well as all copyrights and/or patents. Employee shall also give
the Company all assistance it may reasonably require, including the giving of
testimony in any suit, action, investigation or other proceeding in connection
with the foregoing. If Employee is required to give such testimony
subsequent to the Term, the Company shall pay his reasonable out-of-pocket
expenses incurred in connection with such testimony.
9. Injunctive Relief.
Employee agrees that his violation or threatened violation of any of the
provisions of Sections 6, 7 or 8 of this Agreement shall cause immediate
and irreparable harm to the Company. In the event of any breach or threatened
breach of any of said provisions, Employee consents to the entry of preliminary
and permanent injunctions by a court of competent jurisdiction prohibiting
Employee from any violation or threatened violation of such provisions and
compelling Employee to comply with such provisions. This Section 9 shall
not affect or limit, and the injunctive relief provided in this Section 9
shall be in addition to, any other remedies available to the Company at law or
in equity or in arbitration for any such violation by Employee. Subject to
Section 7(c) of this Agreement, the provisions of Sections 6, 7, 8 and 9 of this
Agreement shall survive any termination of this Agreement and Employee’s
employment and consulting relationship pursuant to this Agreement.
10. Indemnification. The
Company shall provide Employee with payment of legal fees and indemnification to
the maximum extent permitted by the Company’s or the Company’s, as the case may
be, certificate of incorporation, by-laws and applicable law. The
Company shall provide Employee with the same indemnification as are provided by
the Company to officers and directors of its subsidiaries and, if Employee is an
officer or director of the Company, The Company shall provide Employee with the
same indemnification as the Company provides for its officers and
directors.
11. Representations by the
Parties.
(a) Employee
represents, warrants, covenants and agrees that he has a right to enter into
this Agreement, that he is not a party to any agreement or understanding, oral
or written, which would prohibit performance of his obligations under this
Agreement, and that he will not use in the performance of his obligations
hereunder any proprietary information of any other party which he is legally
prohibited from using.
(b) The
Company represents, warrants and agrees that it has full power and authority to
execute and deliver this Agreement and perform its obligations
hereunder.
12. Miscellaneous.
(a) Employee
will cooperate with the Company if the Company so elects, in obtaining any
key-person life insurance on his life, on which the Company will be the
beneficiary. Such cooperation shall include the execution of any applications or
other documents requiring his signature and submission of insurance applications
and submission to a physical.
(b) Any
notice, consent or communication required under the provisions of this Agreement
shall be given in writing and sent or delivered by hand, overnight courier or
messenger service, against a signed receipt or acknowledgment of receipt, or by
registered or certified mail, return receipt requested, or telecopier or similar
means of communication if receipt is acknowledged or if transmission is
confirmed by mail as provided in this Section 12(b), to the parties at
their respective addresses set forth at the beginning of this Agreement or by
telecopier to the Company at (941) 751-6800 or to Employee at (941)
751-6800, with notice to the Company being sent to the attention of the
individual who executed this Agreement on its behalf. Any party may, by like
notice, change the Person, address or telecopier number to which notice is to be
sent. If no telecopier number is provided for Employee, notice to him
shall not be sent by telecopier.
(c) This
Agreement shall in all respects be construed and interpreted in accordance with,
and the rights of the parties shall be governed by, the laws of the State of
Florida applicable to contracts executed and to be performed wholly within such
State, without regard to principles of conflicts of laws. Each party
hereby (i) consents to the exclusive jurisdiction of the federal courts in
Florida, (ii) agrees that any process in any action commenced in such court
under this Agreement may be served upon it or him personally, either (x) by
certified or registered mail, return receipt requested, or by courier service
which obtains evidence of delivery, with the same full force and effect as if
personally served upon such party in Florida, or (y) by any other method of
service permitted by law, and (iii) waives any claim that the jurisdiction
of any such court is not a convenient forum for any such action and any defense
of lack of in
personam
jurisdiction with respect thereof.
(d) If
any term, covenant or condition of this Agreement or the application thereof to
any party or circumstance shall, to any extent, be determined to be invalid or
unenforceable, the remainder of this Agreement, or the application of such term,
covenant or condition to parties or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each
term, covenant or condition of this Agreement shall be valid and be enforced to
the fullest extent permitted by law, and any court or arbitrator having
jurisdiction may reduce the scope of any provision of this Agreement, including
the geographic and temporal restrictions set forth in Section 7 of this
Agreement, so that it complies with applicable law.
(e) This
Agreement constitute the entire agreement of the Company and Employee as to the
subject matter hereof, superseding all prior or contemporaneous written or oral
understandings or agreements, including any and all previous employment
agreements or understandings, all of which are hereby terminated, with respect
to the subject matter covered in this Agreement. This Agreement may not be
modified or amended, nor may any right be waived, except by a writing which
expressly refers to this Agreement, states that it is intended to be a
modification, amendment or waiver and is signed by both parties in the case of a
modification or amendment or by the party granting the waiver. No course of
conduct or dealing between the parties and no custom or trade usage shall be
relied upon to vary the terms of this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on any occasion shall
not be considered a waiver or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this
Agreement.
(f) No party
shall have the right to assign or transfer any of its or his rights hereunder
except that the Company’s rights and obligations may be assigned in connection
with a merger of consolidation of the Company or a sale by the Company of all or
substantially all of its business and assets.
(g) This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors, executors, administrators and permitted
assigns.
(h) The
headings in this Agreement are for convenience of reference only and shall not
affect in any way the construction or interpretation of this
Agreement.
(i) This
Agreement may be executed in counterparts, each of which when so executed and
delivered will be an original document, but both of which counterparts will
together constitute one and the same instrument.
13. Final
Agreement. This agreement supersedes all employment agreements between the
Company and the Employee. In settlement of any obligations under prior
agreements, the Employee acknowledges payment of all amounts due in stock and in
cash under the prior arrangement. All other agreements Mr. Smith has with the
company, other than his original employment agreement dated June 29, 2006, which
is now replaced by this agreement, shall remain in force.
[Signatures
on following page]
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above
written.
SUNOVIA
ENERGY TECHNOLOGIES, INC.
By: /s/
Robert
Fugerer
Name:
Robert Fugerer
Title:
President
EMPLOYEE:
Carl
Smith
/s/
Carl
Smith
(signature)
Carl
Smith
(print name)