EXHIBIT 10.1
SELLING AGREEMENT
January 7, 2013
Xx. Xxxxxxx Xxxxxxxx
Chief Executive Officer
Envision Solar International, Inc.
RE: OFFERING OF 4,000,000 UNITS - 8,000,000 SHARES AND 4,000,000 WARRANTS
EXERCISABLE FOR ONE YEAR AT $.20 PER SHARE
Gentlemen:
Envision Solar International, Inc. ("ENVISION" or "the Company") is a
Nevada corporation engaged in the business of developing and commercializing
carport and other structures with integrative photovoltaic arrays in the United
States and internationally. ENVISION desires to raise up to $1,200,000 through a
Unit offering consisting of 4,000,000 units with each unit consisting of two (2)
shares of common stock and one warrants to purchase an additional share of
common stock at $0.20 per share. The offering is for Accredited Investors (the
"Investors"), pursuant to Regulation D of the Securities Act of 1933, as amended
(the "Offering"). ENVISION hereby confirms as follows its agreement with Allied
Beacon Partners, Inc. ("BEACON"), a registered member in good standing of the
Financial Industry National Regulatory Association ("FINRA"), formerly the
National Association of Securities Dealers, Inc., under which BEACON will act as
a nonexclusive agent for ENVISION in connection with the Offering.
1. MEMORANDUM. ENVISION has caused the preparation of Subscription
Agreements and disclosure materials (collectively, "Memorandum") relating to the
sale of the Units.
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, BEACON is hereby appointed as a non-exclusive agent (except as
provided in Section 3) of ENVISION to offer and sell the Units to Accredited
Investors. BEACON covenants to offer and sell the Units 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. BEACON covenants to closely
supervise all of its representatives in the Offering of the Units and to comply
with all applicable federal and state securities laws and FINRA rules and
regulations. BEACON is not responsible for the contents of the Memorandum.
BEACON covenants not to use any written material or oral statements in offering
or selling the Units which are not specifically authorized by ENVISION,
provided, that BEACON 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,
BEACON hereby accepts such agency and agrees to perform its obligations
hereunder.
3. REPRESENTATIONS AND WARRANTIES OF ENVISION. ENVISION represents,
warrants and agrees with BEACON for BEACON's benefit that:
(a) All action required to be taken by ENVISION as a condition to sale
of the Units has been taken.
(b) ENVISION is duly and validly organized, existing and in good
standing as a corporation under the laws of the State of Nevada, with full power
and authority to conduct its business and proposed business as described in the
Memorandum. ENVISION has 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.
(c) From the commencement of the Offering through the termination or
expiration of the Offering, 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 Units. ENVISION will promptly notify BEACON upon the issuance
of any such order and furnish BEACON 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. BEACON REPRESENTATIONS AND WARRANTIES. BEACON represents and warrants
that it is duly and fully licensed under the rules and regulations of the FINRA
and is capable of performing and satisfying its obligations under this
Agreement. BEACON further represents and warrants that BEACON's execution and
performance of this Agreement will not cause BEACON to be in default under or to
violate any agreement, law, rule, regulation, order or judgment applicable to
it.
5. COMPENSATION TO BEACON. In consideration for BEACON's services
hereunder, ENVISION covenants to pay BEACON (a) an initial selling commission
equal to eight percent (8%) of the total capital contributed to the Offering by
or through BEACON or by or through other FINRA licensed entities referred by
BEACON. The initial selling commission payable to BEACON will be paid within
five (5) business days after the purchase of Units. BEACON shall not be entitled
to a selling commission for any Units not sold by or through BEACON or by or
through other FINRA entities referred by BEACON, but which are instead sold by
ENVISION itself or by a third party not referred by BEACON. In addition, as
non-cash incentive compensation for BEACON, ENVISION shall also compensate
BEACON by issuing to it the number of warrants to purchase shares of the
Company's common stock equal to five percent (5%) of the total number of Shares
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sold within the Units sold. The incentive Shares will be issued to BEACON within
five (5) business days after the issuance of the Shares to the holder of the
Units. Each warrant allows for the purchase of one common share over five (5)
years from date of issuance at an exercise price of $0.25 per share. BEACON
shall be provided with piggy-back registration rights for such incentive Shares
issued to it.
6. OFFERING COSTS. ENVISION will pay all legal, accounting, printing and
other Offering expenses incurred by the Company from its existing general
working capital.
7. COVENANTS OF THE COMPANY. ENVISION covenants with BEACON that:
(a) The term of this Agreement will commence on the date first above
written and will terminate on the date ("Termination Date") which is 90 days
after the date the Memorandum is first provided by BEACON to a third party,
unless sooner terminated or extended by the written agreement of both parties to
this Agreement in or unless the Sales Termination Date, as defined in the
Memorandum, occurs first and is not extended by the Company.
(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 BEACON. Furthermore,
ENVISION will furnish such information to BEACON as BEACON may from time to time
reasonably request.
(c) ENVISION will endeavor in good faith to qualify the Units for
offering and sale under, or to establish the exemption of the Offering and sale
of the Units 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 Units under said "blue sky" laws.
(d) ENVISION will not offer to sell the Units in any state in which
such offer would be unlawful. ENVISION will bear all of the costs and liability
incurred by it or BEACON as a result of the unlawful offer of the Units by the
Company in any state, unless BEACON 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) BEACON will have reasonable review and approval rights with
respect to the Memorandum and its contents.
(g) ENVISION covenants that BEACON shall have the right to obtain the
equity or financing for ENVISION from to an entity affiliated with BEACON.
8. PAYMENT OF EXPENSES AND FEES. Except as provided in Section 5 of this
Agreement, BEACON 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.
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9. NONCIRCUMVENTION. ENVISION shall not directly or indirectly circumvent
BEACON or any of its affiliates with respect to any relationships introduced or
made known to the Company by BEACON as a direct or indirect result of this
Agreement, including but not limited to investors, customers, suppliers, and
professionals, without the prior written consent of BEACON. In the event of a
breach of this section by ENVISION, BEACON will have all injunctive and
equitable relief available, as well as all other remedies at law or in equity.
10. CONDITIONS TO BEACON'S OBLIGATIONS. BEACON'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.
11. CONDITIONS TO THE OBLIGATIONS OF ENVISION. The obligations of ENVISION
hereunder are subject to the accuracy of and the compliance with BEACON's
representations and warranties in this Agreement, and to the performance by
BEACON of its obligations hereunder.
12. TERM OF AGREEMENT. The term of this Agreement will commence on the date
first above written and will terminate on the Termination Date.
13. INDEMNIFICATION.
(a) ENVISION hereby indemnifies and holds BEACON, BEACON'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 BEACON 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 BEACON. In addition, ENVISION hereby indemnifies and holds BEACON,
BEACON'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 BEACON 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 BEACON or any of said other persons related to
BEACON 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 BEACON and the other said person or
persons related to BEACON who are defendants in any suit so brought. In the
event that ENVISION elects to assume the defense of any such suit and retain
such counsel, BEACON or the person or persons who are defendants in the suit
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shall bear the fees and expenses of any additional counsel thereafter retained
by BEACON or them. ENVISION agrees to promptly notify BEACON 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 Units.
(c) BEACON 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 BEACON
or its representatives of any of BEACON'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 by BEACON or its representatives,
BEACON shall have the rights and duties given to ENVISION, and ENVISION shall
have the rights and duties given to BEACON, by the provisions of Section 15(b).
14. 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
BEACON or any person who controls BEACON, or by or on behalf of ENVISION or any
person who controls ENVISION, for a period of four years after the Termination
Date.
15. NOTICES. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given if delivered, faxed, or mailed
by first class mail:
If to ENVISION: Envision Solar International, Inc.
0000 Xxxxxx Xx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile:(000) 000-0000
Attn: Xxxxxxx Xxxxxxxx, Chief Executive Officer
With a copy (which shall not Xxxx Xxxxxxxxxx, Esq.
constitute notice) to: Xxxxxxxxxx and Associates
0000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
If to BEACON: 0000 Xxxxxxxx Xxxx Xxxxx #000
Xxxxxxxx, Xxxxxxxx 00000
Fax (000) 000-0000
Attn: Xxxxx Xxxxx, Chief Executive Officer
16. PARTIES. This Agreement shall inure to the benefit of and be binding
upon BEACON, ENVISION, and their respective successors and assigns.
17. 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.
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18. INJUNCTIVE RELIEF. Each party 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. 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.
19. 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.
20. 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.
21. 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.
22. ATTORNEYS' FEES AND COSTS. In the event that either party 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.
23. 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.
24. TIME OF ESSENCE. Time is of the essence in the performance of the
obligations under this Agreement.
25. 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.
26. 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
BEACON and ENVISION in accordance with its terms.
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Very truly yours,
ALLIED BEACON PARTNERS, INC.
a Wisconsin Corporation
By: /s/ Xxxxx Xxxxx
-----------------------
Xxxxx Xxxxx
Chief Executive Officer
CONFIRMED AND ACCEPTED:
ENVISION SOLAR INTERNATIONAL, INC.,
a Nevada Corporation
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxx
Chief Executive Officer
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