Selling Agreement
Exhibit 10.1
January
17, 2007
Mr.
Xxxxxx Xxxxx
Chairman
& Chief Executive Officer
Envision
Solar, LLC
000
Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxx, XX 00000
Re: Common Stock Offering at
$10.00 per Share
Gentlemen:
Envision
Solar, LLC ("ENVISION" or "the Company") is a California Limited Liability
Company formed to provide durable and attractive integrative photovoltaic
systems designed to facilitate the worldwide transition to the use of renewable
energy. ENVISION desires to raise $2,000,000 through the sale of 200,000 Shares
("The Shares") to Accredited Investors ("Investor") at a price of $10.00 per
Share pursuant to Rule 506 of the Securities Act of 1933. Each Investor
participating in this Offering is required to purchase a minimum of 5,000
shares; however, ENVISION may choose to accept purchases below the minimum at
its discretion. ENVISION hereby confirms as follows its agreement with Nexcore
Capital, Inc. ("Nexcore"), a registered member in good standing of the National
Association of Securities Dealers ("NASD"), under which Nexcore will act as a
non-exclusive agent for ENVISION in connection with the Offering of the
Shares.
1. Memorandum. ENVISION is
authorizing the preparation of a private placement memorandum ("Memorandum")
relating to the sale of the Shares.
2. Appointment
of Agent. On the
basis of the representations, warranties and covenants herein contained, and
subject to the terms and conditions herein set forth, Nexcore is hereby
appointed as a non-exclusive agent of ENVISION to offer and sell the Shares to
Accredited Investors. Nexcore covenants to offer and sell Shares on a "best
efforts" basis on behalf of ENVISION in accordance with the terms of this
Agreement and the Memorandum, and not to misrepresent orally or in writing any
of the facts regarding ENVISION, its business, or the Offering. Nexcore
covenants to closely supervise all of its representatives in the Offering of the
Shares and to comply with all applicable federal and state securities laws and
NASD rules and regulations. Nexcore is not responsible for the contents of the
Memorandum. Nexcore covenants not to use any written material or oral statements
in offering or selling the Shares which are not specifically authorized by
ENVISION, provided, that Nexcore is specifically authorized to use the
Memorandum. Subject to the performance by ENVISION of its obligations to be
performed hereunder, and to the accuracy of all the representations and
warranties contained herein, Nexcore hereby accepts such agency and agrees to
perform its obligations hereunder.
3. Representations
and Warranties of Envision. ENVISION represents,
warrants and agrees with Nexcore for Nexcore's benefit that:
(a) All
action required to be taken by ENVISION as a condition to sale of the Shares
has been
taken.
(b) ENVISION
is duly and validly organized, existing and in good standing as a limited
liability company under the laws of the State of California, with full power and
authority to conduct
its business and proposed business as described in the Memorandum. ENVISION has
unencumbered
title to all government licenses and permits necessary to conduct its business,
and is duly qualified to conduct its business in all jurisdictions in which such
qualification is necessary or appropriate.
SeUing\agmt\Envisioa.doc
(c) From the
commencement of the Offering period through the Offering Termination Date, as
that term is defined in the Memorandum, the Memorandum will not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(d) This
Agreement has been duly and validly authorized, executed and delivered by or on
behalf of ENVISION, and constitutes the valid, binding and enforceable agreement
of ENVISION.
(e) No
federal or state securities agency has issued an order preventing or suspending
the Offering or the use of the Memorandum with respect to the sale of the
Shares. ENVISION will promptly notify Nexcore upon the issuance of any such
order and furnish Nexcore with a copy thereof. The Memorandum and any amendment
or supplement thereto will comply and will continue to comply with all
applicable requirements of the Securities Act of 1933, as amended (the "Act"),
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any
other applicable federal and state laws and regulations at all times during the
term of this Agreement.
(f) No
consent, approval, authorization or other order of any governmental authority is
required in connection with the execution, delivery or performance by ENVISION
of this Agreement.
(g) The
execution and delivery of this Agreement will not constitute a breach of, or
default under, any instrument by which ENVISION is bound or, to the best of
their knowledge, any order, rule or regulation of any court or any governmental
body or administrative agency having jurisdiction over ENVISION.
4. Nexcore
Representations and Warranties. Nexcore represents and
warrants that it is duly and fully licensed under the rules and regulations of
the NASD and is capable of performing and satisfying its obligations under this
Agreement. Nexcore further represents and warrants that Nexcore's execution and
performance of this Agreement will not cause Nexcore to be in default under or
to violate any agreement, law, rule, regulation, order or judgment applicable to
it.
5. Compensation
to Nexcore. In
consideration for Nexcore's services hereunder, ENVISION covenants to pay
Nexcore a selling commission equal to ten (10%) percent of the total purchase
price of Shares sold by representatives who are registered with Nexcore. The
selling commission payable to Nexcore will be paid periodically as ENVISION
accepts sales of Shares. In those cases where the investor is an institution,
and the size of the investment is greater than $500,000 (i.e. exceeds 100,000
shares), ENVISION and Nexcore agree that ENVISION shall pay Nexcore a reduced
selling commission of four percent (4%) on these institutional
sales.
6. Due
Diligence Allowance. In consideration for due
diligence expenses incurred by Nexcore in connection with the Offering, ENVISION
covenants to pay Nexcore a due diligence fee equal to three percent (3%) of the
total purchase price of Shares sold by representatives who are registered with
Nexcore. In those cases where the investor is an institution, and the size of
the investment is greater than $500,000 (i.e. exceeds 100,000 shares), ENVISION
and Nexcore agree that ENVISION shall pay Nexcore a reduced due diligence fee of
two percent (2%) on these institutional sales. The due diligence allowance will
be paid periodically as ENVISION accepts sales of Shares.
7. Incentive
Compensation and Offering Costs. In consideration for
other expenses incurred by Nexcore in connection with the Offering, including
but not limited to administrative and miscellaneous
expenses, Nexcore will also receive from ENVISION a nonaccountable expense
reimbursement in cash equal to two percent (2%) of the total purchase price of
all Shares sold by representatives who are registered with Nexcore. In addition,
as non-cash incentive compensation for Nexcore, ENVISION shall also compensate
Nexcore with fully-paid, non-accessible, and assignable common Shares of the
Company equal to ten percent (10%) of the total number of Shares sold in this
Offering, subject to a maximum of 20,000 Shares, and based upon the 200,000
Shares offered in the Memorandum.
Selling\agrat\Envision.doc
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8. Offering
Costs. ENVISION
will pay all legal, accounting, printing and other Offering expenses incurred by
the Company from its existing general working capital.
9. Covenants
of the Company.
ENVISION covenants with Nexcore that:
(a) The term
of this Agreement will commence on the date first above written and will
terminate on the Offering Termination Date of April 30, 2007, as defined in the
Memorandum, unless sooner terminated by the written agreement of both parties to
this Agreement.
(b) If any
event relating to the Company occurs which requires, in the opinion of
ENVISION's counsel, an amendment or supplement to the Memorandum in order that
the Memorandum will not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a subscriber, ENVISION will forthwith prepare the amendment or
supplement to the Memorandum and deliver a copy thereof to Nexcore. Furthermore,
ENVISION will furnish such information to Nexcore as Nexcore may from time to
time reasonably request.
(c) ENVISION
will endeavor in good faith to qualify the Shares for offering and sale under,
or to establish the exemption of the Offering and sale of the Shares from
qualification or registration under, applicable state securities or "blue sky"
laws. ENVISION will pay all legal fees and related expenses in connection with
qualifying the Shares under said "blue sky" laws.
(d) ENVISION
will not offer to sell Shares in any state in which such offer would be
unlawful. ENVISION will bear all of the costs and liability incurred by it or
Nexcore as a result of the unlawful offer of Shares by the Company in any state,
unless Nexcore directly causes such unlawful offer without the participation of
ENVISION.
(e) ENVISION
covenants to issue financial statements and reports of the Company in accordance
with the Memorandum.
(f) Nexcore
will have reasonable review and approval rights with respect to the Memorandum
and its contents.
(g) ENVISION
covenants that Nexcore shall retain the right to offer this opportunity to an
entity affiliated with Nexcore, such as, by way of illustration but not of
limitation, The Greencore Private Energy Fund, etc.
10. Payment
of Expenses and Fees.
Except as provided in Sections 5, 6 and 7 of this Agreement, Nexcore and
ENVISION will each pay their own expenses incident to the transactions
contemplated by this Agreement. ENVISION will bear all of the fees and expenses
incurred in printing of the Memorandum.
11. Mutual
Non-circumvention.
ENVISION and Nexcore covenant not to directly or indirectly circumvent
the other parry or its affiliates with respect to any relationships introduced
or made known to each party as a direct or indirect result of this Agreement,
including but not limited to investors, customers,
suppliers, and professionals, without the prior consent of the other party. In
the event of a breach of this section by either party, each party will have all
injunctive and equitable relief available, as well as all other remedies at law
or in equity.
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12. Conditions
of Nexcore's Obligations. Nexcore's obligations
hereunder are subject to the accuracy of and compliance with the representations
and warranties of ENVISION in this Agreement, and to the performance by ENVISION
of its obligations hereunder.
13. Conditions
of the Obligations of Envision. The obligations of ENVISION
hereunder are subject to the accuracy of and the compliance with Nexcore's
representations and warranties in this Agreement, and to the performance by
Nexcore of its obligations hereunder.
14. Term of
Agreement. The
term of this Agreement will commence on the date first above written and will
terminate on the Offering Termination Date, as that term is defined in the
Memorandum.
15.Indemnification.
(a) ENVISION
hereby indemnifies and holds Nexcore, Nexcore's affiliates, officers, directors,
shareholders, agents, employees, accountants and attorneys, and each of them,
harmless from and against all liabilities, claims, damages, losses, costs,
attorneys fees and expenses arising directly or indirectly from (a) the conduct
of ENVISION's business, (b) the manner and conduct of any offer or sale of
securities by persons or entities other than Nexcore which conduct any business
with ENVISION, (c) any financial statements or other financial information
prepared, provided, published, or disseminated by ENVISION, or (d) the source or
manner of solicitation of any prospective Investors referred by ENVISION to
Nexcore. In addition, ENVISION hereby indemnifies and holds Nexcore, Nexcore's
affiliates, officers, directors, shareholders, agents, employees, consultants
and attorneys, and each of them, harmless from and against any loss, expense,
claim, damage or liability to which Nexcore or said other parties may become
subject under any securities act, common law concept, or otherwise, insofar as
such loss, expense, claim, damage or liability or action in respect thereof,
arises out of or is based in whole or in part on any untrue statement or alleged
untrue statement of any material fact made by ENVISION, any employee of the
Company, or in the Memorandum, or the omission thereby of any material fact
required to be stated or necessary to make the statement made to a prospective
investor not misleading. ENVISION shall promptly reimburse the indemnified
parties for any reasonable legal or other expenses incurred by them in
connection with any such indemnified action or claim.
(b) ENVISION
will not be liable under this indemnity agreement with respect to any claim made
against Nexcore or any of said other persons related to Nexcore unless ENVISION
is notified in writing of the nature of the claim. ENVISION shall be entitled to
participate at its own expense in the defense or, if it so elects within a
reasonable time after receipt of such notice, to assume the defense of any such
claims, which defense shall be conducted by counsel chosen by it and reasonably
satisfactory to Nexcore and the other said person or persons related to Nexcore
who are defendants in any suit so brought. In the event that the ENVISION elects
to assume the defense of any such suit and retain such counsel, Nexcore or the
person or persons who are defendants in the suit shall bear the fees and
expenses of any additional counsel thereafter retained by Nexcore or them.
ENVISION agrees to promptly notify Nexcore of the assertion of any claim against
it or against any person who is a control person of ENVISION in connection with
the sale of the Shares.
(c) Nexcore
agrees to indemnify and hold harmless ENVISION and its affiliates, officers,
directors, shareholders, agents, employees, attorneys and accountants against
any and all loss, liability, claim, damage and expense whatsoever directly or
indirectly resulting from material violations by Nexcore or its representatives
of any of Nexcore's representations, warranties or covenants in this Agreement,
or of any applicable law, rule or regulation. In case any action is brought
against ENVISION or any of its affiliates under such laws, regulations or rules
on account of such material violation of such representations, warranties or
covenants, Nexcore shall have the rights and duties given to ENVISION, and
ENVISION shall have the rights and duties given to Nexcore, by the provisions of
Section 13(b).
XxXxxxx\agmt\Envi3i0n.doc
4
16.Representations. Warranties and Agreements to Survive Delivery. All
representations,
warranties and agreements shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of Nexcore or any person
who controls Nexcore, or by or on behalf of ENVISION or any person who controls
ENVISION, for a period of four years after the Offering Termination Date, as
that term is defined in the Memorandum.
17. Notices. All communications herein
shall be in writing and, if sent to Nexcore, shall be mailed, delivered or
telegraphed and confirmed to Nexcore at 00000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxx Xxxxx, XX 00000, attention: Xxx X. Xxxxxx, President, or, if sent to
ENVISION, shall be delivered or telegraphed and confirmed to it at Envision
Solar, LLC, 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxx, Xxxxxxxxxx 00000,
attention: Xxxxxx Xxxxx, Chief Executive Officer.
18. Parties. This Agreement shall inure
to the benefit of and be binding upon Nexcore, ENVISION, and their respective
successors and assigns.
19. Entire
Agreement. This
Agreement represents the entire agreement among the parties hereto and may not
be amended except by a writing signed by the party against whom enforcement of
the provision is sought.
20. Injunctive
Relief.
20.1 Damages
Inadequate
Each
parry acknowledges that it would be impossible to measure in money the damages
to the other party if there is a failure to comply with any covenants or
provisions of this Agreement, and agrees that in the event of any breach of any
covenant or provision, the other party to this Agreement will not have an
adequate remedy at law.
20.2 Injunctive
Relief
It is
therefore agreed that the other party to this Agreement who is entitled to the
benefit of the covenants or provisions of this Agreement which have been
breached, in addition to any other rights or remedies which they may have, shall
be entitled to immediate injunctive relief to enforce such covenants and
provisions, and that in the event that any such action or proceeding is brought
in equity to enforce them, the defaulting or breaching party will not urge a
defense that there is an adequate remedy at law.
21. Waivers. If any party shall at any
time waive any rights hereunder resulting from any breach by the other party of
any of the provisions of this Agreement, such waiver is not to be construed as a
continuing waiver of other breaches of the same or other provisions of this
Agreement. Resort to any remedies referred to herein shall not be construed as a
waiver of any other rights and remedies to which such party is entitled under
this Agreement or otherwise.
22. Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of California, and the venue for any action hereunder shall be in the
appropriate forum in the County of San Diego, State of California.
23. Counterparts. This Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
24. Attorneys'
Fees and Costs.
In the event that either parry must resort to legal action in order to
enforce the provisions of this Agreement or to defend such action, the
prevailing party shall be entitled to receive reimbursement from the
nonprevailing party for all reasonable attorneys' fees and all other costs
incurred in commencing or defending such action, or in enforcing this Agreement,
including but not limited to post judgment costs.
XxXxxxx\agmt\Envis!oa.doc
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25. Further
Acts. The parties
to this Agreement hereby agree to execute any other documents and take any
further actions which are reasonably necessary or appropriate in order to
implement the transactions contemplated by this Agreement.
26. Time of
Essence. Time is
of the essence in the performance of the obligations under this
Agreement.
27. Authorized
Signatures. Each
party to this Agreement hereby represents that the persons signing below are
duly authorized to execute this Agreement on behalf of their respective
party.
28. Execution. If the foregoing is in
accordance with your understanding of our Agreement, kindly sign and return to
us a counterpart hereof, whereupon this Agreement along with all counterparts
will become a binding Agreement between Nexcore and ENVISION in accordance with
its terms.
Very truly
yours,
| Nexcore Capital, Inc. | |||
| a Delaware corporation | |||
|
|
By:
|
||
| Xxx X. Xxxxxx President | |||
| Title | |||
Confirmed
and Accepted:
Envision
Solar, LLC
a
California Limited Liability Compnay
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Xxxxxx Xxxxx | ||
| Chairman and Chief Executive Officer |
Sel)ing\agmt\Envision.doc
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