ex106b.htm


    Exhibit
      10.6 (b)

     

    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 Bob Fugerer, residing at 4819 Sky Blue Drive, Lutz, Florida,
      33558 (“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 Vice President of
      Engineering;

    


    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 Vice President of
      Engineering 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 Vice President of Engineering 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.

     

     

    
      
         

      

      
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    (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
      $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.  

            	
              A
                one-time signing bonus of sixty thousand dollars ($60,000) plus one
                million fifty thousand (1,050,000) shares of common stock of the
                Company.

            


    

    


    
      	
              ii.  

            	
              A
                quarterly payment of three hundred thousand (300,000) shares of restricted
                common stock of Company.

            


    

    


    


    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.

     

    
      
         

      

      
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    (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.

    


    (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.

    


    
      
         

      

      
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    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.

    


    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:
      Carl
      Smith, Chief Executive Officer

    


    _____________________________

    By:
      Craig
      Hall, President

    


    Executive:

    


    _____________________________

    Bob
      Fugerer

     

     

     

    
 

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