ex1015.htm


    EXHIBIT
10.15

     

    AMENDED
AND RESTATED CONSULTING AGREEMENT

    


    


    THIS
AGREEMENT, made, entered into this 17th day of
March, 2008, by and between Fernando Cuza, an individual with a principal place
of business located at 426 East MacEwen Drive,
Osprey, Florida 34229 (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") serves to amend and restate that certain Consulting
Agreement dated May 22, 2006  (the “Effective Date”) by and between
Sun Energy Solar, Inc. and Consultant.

    


    W
I T N E S S E T H:

    


    WHEREAS, the Corporation owns
certain intellectual property (“Intellectual Property”), is pursuing patents
specific to said Intellectual Property and is developing products (“Products”)
based on the Intellectual Property (the “Business Venture”);

    


    WHEREAS, the Corporation,
through its wholly-owned subsidiary Sun Energy Solar, Inc., and the Consultant
entered into that certain Consulting Agreement dated May 22, 2006 (the “Initial
Agreement”);

    


    WHEREAS, the Corporation and
the Consultant wish to amend and restate the Initial Agreement pursuant to this
Agreement;

    


    WHEREAS, the Corporation
desires to maximize the value of the Corporation and secure agreements with
nationally recognized entities for distribution of the Products;

    


    WHEREAS, the Consultant
desires to provide advice and recommendations to the Corporation and introduce
the Corporation to nationally recognized entities;

    


    WHEREAS, the Corporation
desires to retain the Consultant, and the Consultant desires to provide to the
Corporation;

    


    WHEREAS, Consultant desires to
provide consulting services for the Corporation as an independent contractor,
including advice with respect to the Business Venture, and introductions to
nationally recognized entities to increase the sales of the Products and
increase the value of the Corporation (“Services”) with the understanding that
Consultant shall not be required to devote his full time to the business of the
Corporation and shall be free to pursue other personal and business
interests.

    


    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 or has previously performed such
duties and responsibilities and to render advice and consulting as may be
requested by the Corporation from time to time during the term of this
consulting arrangement in connection with the Corporation's business throughout
the United States and world wide, which may have previously been performed or is
to be performed during the remaining period of the Term ("Consulting
Arrangement").  Said consulting services shall include, but not be
limited to, those
services as more fully described on Schedule 1 attached
hereto.  Consultant shall use his best efforts to keep the Corporation
informed of all corporate business opportunities which shall come to his
attention and appear beneficial to the Corporation's business so that the
Corporation can obtain the maximum benefits from Consultant's knowledge,
experience, and personal contacts.

     

    
      
        
        

      

      
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    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, 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 part of the consideration for the services to
be rendered under the Consulting Arrangement by Consultant and as compensation
for the income he could have otherwise earned if he had not agreed to keep
himself available to the Corporation hereunder, the Corporation shall issue to
the Consultant (i) an option to purchase an aggregate of 25,000,000 shares of
common stock of the Corporation at an exercise price of $0.005 on a cashless
basis for a term of seven (7) years and (ii) an option to purchase an aggregate
of 5,000,000 shares of common stock of the Corporation at an exercise price of
$0.005 on a cashless basis for a term of seven (7) years, which shall be issued
on January 1, 2009.  The aforementioned options shall be deemed earned
as of the Effective Date as a substantial portion of the services to be provided
pursuant to Section 1 of this Agreement have been provided.  The
options to be issued in accordance with this Agreement shall be issued
substantially in the form attached hereto as Schedule
II.

    


    In
addition to the foregoing, the Corporation shall pay Consultant its reasonable,
out-of-pocket, pre-approved expenses as incurred by Consultant in connection
with its performance under this Agreement. Consultant shall not incur any
expenses without prior written consent of the Corporation. Consultant agrees to
provide the Corporation with access to such receipts, ledgers and other records
as may be reasonably appropriate for the Corporation to verify the amount and
nature of such expenses.

    


    4.           TERM OF
CONSULTING ARRANGEMENT.  The Consulting
Arrangement shall begin effective as of the Effective Date and shall continue
for a period of three (3) years from the Effective Date (the "Consulting
Period").  Either party may terminate this Agreement for Cause
(as defined below) upon thirty (30) days written notice to the other
specifying the effective date of termination. Cause shall be defined as either
party’s willful and wanton disregard for its obligations as defined herein. In
the event of termination, the Corporation shall pay Consultant for the work
performed prior to the effective date of such termination.

    


    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 skill with respect to the
Corporation's business and the services provided pursuant to Section 1, 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.

     

    
      
        
        

      

      
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    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 the laws of the State of Florida 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 any copies, abstracts, sketches, or other physical embodiment of any of
the Proprietary Items.

    


    (b)           Consultant
Inventions.  Each Consultant Invention will belong exclusively
to the Corporation.  The Consultant acknowledges that all of the
Consultant's writing, works of authorship, and other Consultant Inventions are
works made for hire and the property of the Corporation, including any
copyrights, patents, or other intellectual property rights pertaining
thereto.  If it is determined that any such works are not works made
for hire, the Consultant hereby assigns to the Corporation all of the
Consultant's right, title, and interest, including all rights of copyright,
patent, and other intellectual property rights, to or in such Consultant
Inventions.  The Consultant covenants that he will
promptly:

    


    (i)           disclose
to the Corporation in writing any Consultant Invention;

    


    (ii)           assign
to the Corporation or to a party designated by the Corporation, at the
Corporation's request and without additional compensation, all of the
Consultant's right to the Consultant Invention for the United States and all
foreign jurisdictions;

    


    (iii)           execute
and deliver to the Corporation such applications, assignments, and other
documents as the Corporation may request in order to apply for and obtain
patents or other registrations with respect to any Consultant Invention in the
United States and any foreign jurisdictions;

    


    (iv)           sign
all other papers necessary to carry out the above obligations; and

    


    (v)           give
testimony and render any other assistance in support of the Corporation's rights
to any Consultant Invention.

     

    
      
        
        

      

      
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    5.3           Disputes or
Controversies.  The Consultant recognizes that should a dispute
or controversy arising from or relating to this Agreement be submitted for
adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. All
pleadings, documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by the
Corporation, the Consultant, and their respective attorneys and experts, who
will agree, in advance and in writing, to receive and maintain all such
information in secrecy, except as may be limited by them in
writing.

    


    5.4           Definitions.

    


    (a)           For
the purposes of this Section 5, "Confidential Information" shall mean any and
all:

    


    (i)           trade
secrets concerning the business and affairs of the Corporation, product
specifications, data, know-how, formulae, compositions, processes, designs,
sketches, photographs, graphs, drawings, samples, inventions and ideas, past,
current, and planned research and development, current and planned manufacturing
or distribution methods and processes, customer lists, current and anticipated
customer requirements, price lists, market studies, business plans, computer
software and programs (including object code and source code), computer software
and database technologies, systems, structures, and architectures (and related
formulae, compositions, processes, improvements, devices, know-how, inventions,
discoveries, concepts, ideas, designs, methods and information, and any other
information, however documented, that is a trade secret within the meaning of
the laws of the State of Florida;

    


    (ii)           information
concerning the business and affairs of the Corporation (which includes
historical financial statements, financial projections and budgets, historical
and projected sales, capital spending budgets and plans, the names and
backgrounds of key personnel, personnel training and techniques and materials,
however documented; and

    


    (iii)           notes,
analysis, compilations, studies, summaries, and other material prepared by or
for the Corporation containing or based, in whole or in part, on any information
included in the foregoing.

    


    (b)           For
the purposes of this Section 5, "Consultant Invention" shall mean any idea,
invention, technique, modification, process, or improvement (whether patentable
or not), any industrial design (whether registerable or not), any mask work,
however fixed or encoded, that is suitable to be fixed, embedded or programmed
in a semiconductor product (whether recordable or not), and any work of
authorship (whether or not copyright protection may be obtained for it) created,
conceived, or developed by the Consultant, either solely or in conjunction with
others, during the Consulting Period, or a period that includes a portion of the
Consulting Period, that relates in any way to, or is useful in any manner in,
the business then being conducted or proposed to be conducted by the
Corporation, and any such item created by the Consultant, either solely or in
conjunction with others, following termination of the Consultant's Consulting
Arrangement with the Corporation, that is based upon or uses Confidential
Information.

    


    6.           NON-COMPETITION
AND NON-INTERFERENCE

    


    6.1           Acknowledgments
by the Consultant.  The Consultant acknowledges
that:  (a) the services to be performed by him under this
Agreement are of a special, unique, unusual, extraordinary, and intellectual
character; (b) the Corporation's business is national in scope and its
products are marketed throughout the United States and world wide; (c) the
Corporation competes with other businesses that are or could be located in any
part of the United States and world wide; (d) the provisions of this
Section 6 are reasonable and necessary to protect the Corporation's
business.

     

    
      
        
        

      

      
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    6.2           Covenants of the
Consultant.  In consideration of the acknowledgments by the
Consultant, and in consideration of the compensation and benefits to be paid or
provided to the Consultant by the Corporation, the Consultant covenants that he
may not,
directly or indirectly:

    


    (a)           during
the Consulting Period, except in the course of his Consulting Arrangement
hereunder, and during the Post-Consulting Period (as defined below), engage or
invest in, own, manage, operate, finance, control, or participate in the
ownership, management, operation, financing, or control of, be employed by,
associated with, or in any manner connected with, lend the Consultant's name or
any similar name to, lend Consultant's credit to or render services or advice
to, any business whose products or activities compete in whole or in part with
the products or activities of the Corporation anywhere throughout the world;
provided, however, that the Consultant may purchase or otherwise acquire up to
(but not more than) one percent of any class of securities of any
enterprise  (but without otherwise participating in the activities of
such enterprise) if such securities are listed on any national or regional
securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934;

    


    (b)           whether
for the Consultant's own account or for the account of any other person, at any
time during the Consulting Period and the Post-Consulting Period, solicit
business of the same or similar type being carried on by the Corporation, from
any person known by the Consultant to be a customer of the Corporation, whether
or not the Consultant had personal contact with such person during and by reason
of the Consultant's Consulting Arrangement with the Corporation;

    


    (c)           whether
for the Consultant's own account or the account of any other person (i) at
any time during the Consulting Period and the Post-Consulting Period, solicit,
employ, or otherwise engage as an employee, independent contractor, or
otherwise, any person who is or was an employee of the Corporation at any time
during the Consulting Period or in any manner induce or attempt to induce any
employee of the Corporation to terminate his Consulting Arrangement with the
Corporation; or (ii) at any time during the Consulting Period and for three
years thereafter, interfere with the Corporation's relationship with any person,
including any person who at any time during the Consulting Period was an
employee, contractor, supplier, or customer of the Corporation; or

    


    (d)           at
any time during or after the Consulting Period, disparage the Corporation or any
of its shareholders, directors, officers, employees, or agents.

    


    For
purposes of this Section 6.2, the term "Post-Consulting Period" means the one
year period beginning on the date of termination of the Consultant's Consulting
Arrangement with the Corporation.

    


    If any
covenant in this Section 6.2 is held to be 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 the Consultant.

    


    The
period of time applicable to any covenant in this Section 6.2 will be extended
by the duration of any violation by the Consultant of such
covenant.

    


    7.           NOTICES.  All
notices, consents, waivers, and other communications under this Agreement must
be in writing and will be deemed to have been duly given when (a) delivered
by hand (with written confirmation of receipt), (b) sent by facsimile (with
written confirmation of receipt), provided that a copy is mailed by registered
mail, return receipt requested, or (c) when received by the addressee, if
sent by a nationally recognized overnight delivery service (receipt requested),
in each case to the appropriate addresses and facsimile numbers first set forth
above (or to such other addresses and facsimile numbers as a party may designate
by notice to the other parties or that the Corporation has on record for the
Consultant).

     

    
      
        
        

      

      
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    8.           CONSULTANT
REPRESENTATIONS.

    


    8.1           The
Consultant is aware that the receipt of shares of common stock in lieu of cash
compensation is a speculative investment involving a high degree of risk, that
there is no guarantee that the Consultant will realize any gain from this
investment, and that the undersigned could lose the total amount of this
investment.

    


    8.2           The
Consultant is acquiring his shares for the undersigned's own account, with the
intention of holding the shares and with no present intention of dividing or
allowing others to participate in this investment or of reselling or otherwise
participating, directly or indirectly, in a distribution of the shares, and
shall not make any sale, transfer, or pledge thereof without registration under
the Securities Act of 1933,a s amended, and any applicable securities laws of
any state or unless an exemption from registration is available under those
laws.  The Consultant further represents that he understands that the
shares he receives will be restricted securities and that such certificates
representing the shares shall bear a standard restrictive legend per the
Securities Act of 1933, as amended.

    


    8.3           The
Consultant represents that he is an “accredited investor”, as such term is
defined in Rule 501 of Regulation D promulgated under the Securities Act of
1933, as amended.

    


    9.           BINDING
EFFECT.  This Agreement shall extend to, shall inure to the
benefit of and shall be binding upon all the parties hereto and upon all of
their respective heirs, successors and representatives.

    


    10.           ENTIRE
AGREEMENT.  This Agreement, including the agreements
incorporated by reference, contains the entire Agreement among the parties
hereto with respect to the matters contemplated hereby and supersedes all prior
agreements and undertakings between the parties with respect to such
matters.  This Agreement may not be amended, modified or terminated in
whole or in part, except in writing, executed by each of the parties
hereto.

    


    11.           LIABILITY; INDEMNIFICATION. IN
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL,
INDIRECT, SPECIAL OR INCIDENTAL DAMAGES ARISING OUT OF THE OTHER PARTY’S
PERFORMANCE UNDER THIS AGREEMENT.  Each party (the “Indemnifying
Party”) agrees to defend, indemnify and hold harmless the other party, its
officers, agents, employees, contractors, subcontractors, parent corporations,
subsidiaries, and affiliates (referred to individually and collectively as the
“Indemnified Party”) from and against any and all claims, liabilities, loss,
damages, costs, fines, penalties or expenses (including but not limited to
attorneys fees and all costs of litigation and collection) (“Damages”) which the
Indemnified Party may hereafter incur, suffer or be required to pay by reason of
the Indemnifying Party’s failure to perform faithfully its obligations hereunder
or by reason of any bodily injury or property damage caused by any negligent act
or omission of the Indemnifying Party, its officers, agents, employees,
contractors, Subcontractors, parent corporations, subsidiaries and affiliates in
connection with this Agreement, Indemnifying Party’s activities hereunder or
otherwise, but excluding those Damages attributable solely to the Indemnified
Party’s gross negligence.

     

    
      
        
        

      

      
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    12.           SPECIFIC
PERFORMANCE.  The Consultant acknowledges that his obligations
hereunder are unique, and that it would be extremely impracticable to measure
the resulting damages if he should default in his obligations under this
Agreement.  Accordingly, in the event of the failure by Consultant to
perform his obligations hereunder, which failure constitutes a breach hereof by
him, the Corporation may, in addition to any other available rights or remedies,
sue in equity for specific performance and, in connection with any such suit,
the Consultant expressly waives the defense therein that the Corporation has an
adequate remedy at law.

    


    13.           SEVERABILITY.  Should
any part of any provision of this Agreement be declared invalid by a court of
competent jurisdiction, such decision or determination shall not affect the
validity of any remaining portion of such provision or any other provision and
the remainder of the Agreement shall remain in full force and effect and shall
be construed in all respects as if such invalid or unenforceable provision or
portion thereof were not contained herein.  In the event of a
declaration of invalidity, the provision or portion thereof declared invalid
shall not necessarily be invalidated in its entirety, but shall be observed and
performed by the parties to the Agreement to the extent such provision is valid
and enforceable.

    


    14.            SECTION
HEADINGS.  The section headings contained herein are for
convenience of reference only and shall not be considered any part of the terms
of this Agreement.

    


    15.           CHOICE
OF LAW.  This Agreement
shall be interpreted and performed in accordance with the laws of the State of
Florida, and the parties agree, notwithstanding the principles of conflicts of
law, that the internal laws of the State of Florida shall govern and control the
validity, interpretation, performance, and enforcement of this
Agreement.  Any action brought by either party against the
other concerning the transactions contemplated by this Agreement shall be
brought only in the state courts of Florida or in the federal courts located in
or near Tampa, Florida.  The parties and the individuals executing
this Agreement and other agreements referred to herein or delivered in
connection herewith on behalf of the Corporation agree to submit to the
jurisdiction of such courts and waive trial by jury.  The prevailing
party shall be entitled to recover from the other party its reasonable
attorney's fees and costs.

    


    IN WITNESS WHEREOF, Consultant
has hereunto put his hand, and the Corporation has caused this instrument to be
executed in its corporate name by its duly authorized officer, all as of the day
and year first above written.

     

    
      
        	 	CONSULTANT:	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Fernando
      Cuza	 
	 	 	Fernando
      Cuza	 
	 	 	 	 


      

    

    
      
        	 	CORPORATION:	 
	 	 	Sunovia
      Energy Technologies, Inc.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Carl
      Smith, III	 
	 	 	Name:
      Carl Smith, III	 
	 	 	Title:
      CEO	 
	 	 	 	 


      

    


    
      
         


      

      
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    SCHEDULE
I

    


    


    a.
introducing SESI to nationally recognized entities for product distribution
opportunities;

    


    b.
introducing SESI to various executives and/or key personnel within companies for
the purpose of making sales and/or public relations presentations to such
companies (1);

    


    c. acting
as a liaison between SESI and various nationally recognized entities including,
but not limited to, the following:

    


    i. Various Major League Baseball
(“MLB”) players

    


    ii. Various MLB teams

    


    iii. ClearChannel Outdoor

    


    iv. Various Fortune 500
companies

    


    v. The state government of Florida and
national governments of the Dominican Republic, and othergovernments where the
Consultant has relationships that may be advantageous to SESI;

    


    d.
introducing SESI to professional sports figures for the purpose of contracting
with such sports figures to endorse certain SESI products.

    


    ______________________________

    


    (1) While the Consultant will, from
time to time, give advice to the Corporation with respect to public relations,
the parties agree that the Consultant will not have any discretionary authority
with respect to the Business Venture. The Corporation shall have sole discretion
with respect to the Business Venture.

     

    
      
        
        

      

      
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    SCHEDULE
II

    


    Form of Option
Agreement

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

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