EXHIBIT 10.2
ENVISION SOLAR INTERNATIONAL
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made effective as of January 10,
2013, (the "Effective Date") by and between, Envision Solar International with
principal place of business located at ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Client") and GreenCore Capital, LLC a Delaware Limited Liability
Company with its primary office located at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
(the "Consultant"). The Client and the Consultant are also hereinafter referred
to as the "Party" or "Parties".
WHEREAS, Client is a supplier of integrated solar solutions as well as
other renewable energy systems;
WHEREAS, Client is desirous of expanding the market for its products via
consumer purchase and lease opportunities offered through companies and
organizations or other qualified customers;
WHEREAS, Client is desirous of securing debt and/or equity financing from
time to time to facilitate growth and project execution;
WHEREAS, Consultant has relevant expertise, contacts and knowledge within
the Capital Finance and Renewable Energy industries and is desirous of
offering consulting services in furtherance of Client's market expansion
goals upon the terms and conditions prescribed below;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained in this Agreement, the Parties agree as follows:
1. TERM AND SCOPE :
1.1 This Agreement shall commence upon the Effective Date and shall remain
in full force in effect for a first period, starting at signing and
ending 31 Dec 2013 (the "Initial Term"). Upon expiration of the
Initial Term, and provided that this Agreement has not been terminated
pursuant to Section 8 or otherwise, the Initial Term will be
automatically extended by successive periods of one (1) calendar year
each, unless during the Initial Term or a successive term either Party
provides to the other party written notice of non-renewal no less than
fifteen (15) calendar days prior to the expiration of the Initial Term
or successive term, as the case may be. The Initial Term and any
subsequent renewals shall collectively be refereed to as the "Term".
1.2 Subject to the terms and conditions of this Agreement, the Client
hereby retains Consultant as a consultant, advisor and sales channel
with respect to the sale, promotion and marketing of Client's products
within the Field Of Use and to advise and consult on the most
advantageous positioning of the Company and the creation of documents
and materials to secure debt or equity financing at terms which are
most beneficial to the Company, its projects and its shareholders (the
"Services") and Consultant agrees, subject to the terms and conditions
of this Agreement, to render such Services during the Term of this
Agreement. For purposes of this Agreement, "Field Of Use" shall mean
entities and service providers that are engaged in the commercial real
estate industry, the automotive industry and the Renewable Energy
industry in the United States as well as any other entities or
providers to which the Parties mutually agree in writing. The
Consultant shall at all times use its best efforts in providing such
Services. The Consultant shall create and deliver any deliverables or
work product associated with the Services in a format and at a time
reasonably acceptable to the Client and consistent with the provision
of the Services. The Consultant will work for the Client under the
general direction of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or such other individual(s) or
department(s) as may be designated by the Client from time to time.
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1.3 Consultant shall provide Client on a monthly basis with a list of
those persons and/or entities that Consultant has approached and which
have demonstrated a "Bona Fide Interest" in the Client's products or
in providing debt or equity financing during such month and which the
Client has approved in writing (each person or entity being a "Covered
Customer" or "Covered Investor"). For purposes of this Agreement,
"Bona Fide Interest" means interest which has resulted in active and
ongoing negotiations with such potential customer or investor
regarding sales of Client's products or the placement of debt or
equity financing. Consultant shall not approach, market or promote the
Client or its products to persons and/or entities outside of the Field
Of Use or otherwise perform Services under this Agreement with regard
to any person and/or entity outside of the Field Of Use unless they
have permission from Client (see 1.2).
1.4 The Consultant shall regularly report to the Client regarding its
efforts on Client's behalf.
1.5 The Consultant shall provide all of its own equipment, tools, and
office space necessary to perform the Services under this Agreement.
1.6 Throughout the Term of this Agreement, the Consultant agrees to devote
its best efforts to performing the Services with diligence and care on
behalf of the Client. The Parties each individually represent and
acknowledge that the performance of the Services under this Agreement
does not conflict with any duties or obligations that such Party may
have to any third party and does not violate any other agreement to
which such Party is already a party. Each Party shall indemnify and
hold harmless the other Party, its employees, directors, agents and
assigns against any claims, liability, loss, cost, actions or demands
(including without limitation reasonable attorney fees) arising out of
or relating to any conflict or violation of any third-party agreement
by such Party.
1.7 The Parties each individually represent and warrant that any and all
information, code, programs, processes, practices or techniques which
such Party will describe, demonstrate, divulge, use, or in any other
manner make known to the other Party during the performance of
Services (collectively, the "Property") may be divulged and freely
used by such divulging Party, without any obligation to, or violation
of, any right of others, and without violation of any law or payment
of any royalty.
1.8 Throughout the Term of this Agreement, the Consultant and its
directors, officers, representatives, agents and employees shall
comply with all federal, state, local, foreign and/or international
laws and regulations applicable to the Consultant's business and its
performance of its obligations under this Agreement.
2. RELATIONSHIP OF THE PARTIES:
2.1 It is understood and agreed that Consultant will act under this
Agreement as an independent contractor and that nothing in this
Agreement or the nature of any services rendered in connection
herewith shall be deemed to create an agency relationship between
Consultant and the Client. Consultant has no authority to, and agrees
not to, assume or create any obligation or liability, express or
implied, on the Client's behalf, or to bind the Client in any manner
or to anything whatsoever. The Consultant represents and warrants that
it will not make any warranties or representations regarding the
Client or its products except as expressly stated in this Agreement or
as otherwise may be authorized in writing by Client from time to time.
2.2 Payments made to Consultant hereunder may be subject to applicable
federal, state, and local tax withholding laws. The Client makes no
representations regarding the tax implications of the compensation
provided for in this Agreement. The Client advises Consultant to
consult with a tax professional and/or its attorney regarding such
implications and the Consultant's responsibilities regarding
fulfillment of its taxation obligations. Consultant specifically
acknowledge and agrees that: (i) Consultant shall be liable for all
taxes assessed by any federal, state, or local authorities with
respect to the compensation provided herein; and (ii) that to the
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extent required by law and/or otherwise reasonably deemed necessary by
the Client, the Client is authorized to withhold such taxes from
compensation due Consultant hereunder.
3. COMPENSATION, INVOICING AND PAYMENT:
3.1 For its Services rendered hereunder, Consultant shall receive
compensation equal to five percent (5 %) of the total, or portion of
the total " Sale Price" actually received by the Client from a Covered
Customer, which is not an existing customer of the Company ("Existing
Customer"), of any sale of product within the Field Of Use made by
Client during the Term to a Covered Customer or otherwise made by
Client as a direct result of Consultant's efforts hereunder during the
Term. ("Base Compensation"). For purposes of this Agreement, "Sales
Price " shall mean the dollar amount representing the invoiced amount
that the customer pays to the client. Sales made to Existing Customers
of the Company shall be compensated on a case by case basis and the
final amount of the compensation shall be decided, after discussion
with the Consultant, in the sole discretion of the Company. For the
purposes of this agreement Existing Customer shall mean any customer,
or affiliate or associate of that customer, with which the Company has
an existing relationship or The Company can demonstrate that the sale
has come about as a result of the Company's activities with the
Existing Customer.
3.2 Nothing in this Agreement shall obligate the Client to enter into any
sale or transaction with any Covered Customer. The Client may refuse
to conclude any agreement or transaction with or without good cause.
No compensation of any kind will be payable to Consultant under this
Agreement in the event that a sale or transaction is not consummated,
for any reason whatsoever, including without limitation the fault or
default of the Client.
3.3 From time to time the Client may task the Consultant to perform
certain business development activities and/or to advise and consult
on the most advantageous positioning of the Company and/or the
creation of documents and materials to aid in the securing debt or
equity financing. In the event that the Client requests Services which
are not compensated under the terms of section 3.1 of this agreement
Consultant shall invoice, monthly, in arrears, Client, and Client
shall pay to consultant, within thirty days of receiving the invoice,
the sum of two hundred and fifty dollars ($250.00) for each hour the
Consultant works in the furtherance of rendering such Services
provided that Consultant shall not perform hourly Services without the
prior written approval of the Client and in any event shall not
invoice for more than 100 hours in any calendar month.
3.4 Consultant shall invoice for and receive a payment of eight thousand
dollars ($8000.00) for the first month commencing upon the execution
of this agreement and five thousand dollars ($5000.00) for each month
thereafter, in advance as a retainer against any hourly ▇▇▇▇▇▇▇▇ for
Services, which are not compensated in accordance with section 3.1 of
this agreement. Each invoice described in section 3.3 of this
agreement shall include any retainer payments received for the period
as a credit against the final invoice for that month.
3.5 Consultant shall have the option to receive restricted Envision common
shares for any outstanding invoice at a price in line with all state
and federal security laws.
3.6 The Client has the right to cease to pay the retainer during any
period where hourly services are not anticipated.
4. BENEFITS:
The Consultant understands and agrees that as an independent contractor,
the Consultant shall not be entitled to receive any benefit payments or
participate in any benefit program offered by Client. Upon the effective
date of this Agreement, the Consultant voluntarily waives any interest,
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claim or entitlement to, or right to participate in, and affirmatively
elects not to enroll in or participate in, any retirement, pension, 401k,
health care, or other benefit plan maintained by the Client. This waiver
will remain in full force and effect regardless of findings by any
governmental agency.
5. CONFIDENTIALITY:
Client and Consultant are parties to a certain Mutual Confidentiality
Agreement (the "Confidentiality Agreement"). The terms and provisions of
such Confidentiality Agreement are hereby incorporated by reference as if
fully set forth herein. Notwithstanding anything to the contrary contained
in the Confidentiality Agreement, the Consultant will not publish, disclose
to third parties, utilize for the Consultant's own benefit, or otherwise
make use of any of the Client's (or Client's customers) trade secrets or
other confidential information concerning the Client or its customers,
except to the extent necessary to carry out the Consultant's obligations to
the Client hereunder or with the prior written consent of the Client
(and/or Client's customer, as applicable). For purposes of this Agreement,
"Confidential Information" shall have the meaning prescribed in the
Confidentiality Agreement and shall include, without limitation, any
financial or accounting information regarding the business of the Client
that has not been publicly reported or released, including information
regarding revenues, anticipated revenues, expenses and costs, profit
margins and cash flow, information regarding the Client's customers, the
Client's business plans and strategies, forecasts and projections, pricing
information, customer proposals and contracts, employee information and any
other information developed, in the possession of or owned by the Client
that the Client does not disclose publicly.
6. INTELLECTUAL PROPERTY AND WORK PRODUCT:
6.1 All work performed by the Consultant for the Client under this
Agreement is in the nature of "work for hire". Consultant expressly
agrees that all data, electronic or paper documents, models, programs,
methods, inventions, innovations, reports or other work product of any
kind and all works based upon, derived from, or incorporating the
foregoing which have been, or will be, prepared by the Consultant
within the scope of the consulting services provided hereunder,
including any contribution (whether individual or collaborative) to
such materials created by the Consultant in the course of providing
the Services (collectively "Innovations") shall be deemed "works for
hire" and shall be the shall be the sole and exclusive property of the
Client. "Innovations" shall also include any work product
incorporating, utilizing or based-upon any of the Client's
confidential information. The Consultant hereby irrevocably assigns
and/or agrees to irrevocably assign to the Client, its successors and
assigns, any and all of its right, title and interest in and to any
and all Innovations and to any copyright, trademark, patent
applications or Letters Patent thereon developed for and during the
performance of the Services for the Client. The Consultant agrees to
execute whatever documents may be reasonably necessary at the Client's
request, and without further compensation, in order to assign the
rights in any such Innovations to the Client. Notwithstanding the
foregoing and those confidentiality requirements set forth above,
nothing in this clause shall affect the Consultant's rights to any
data, electronic or paper documents, models, programs, methods,
inventions, innovations, reports or other work product, independently
developed by the Consultant while not engaged in or for the
performance of the Services, whether during, before or after the term
of this agreement.
6.2 The Consultant agrees to promptly turn over to the Client, immediately
upon the expiration or termination of this Agreement, all notes,
reports, data and other work product containing Confidential
Information of the Client or the Client's customers and/or produced in
connection with any work performed under this Agreement (and all
copies thereof), whether in paper or electronic form that the
Consultant has in its possession upon the written request of the
Client. Following termination or expiration of this Agreement,
Consultant shall neither make nor retain any copies (whether in paper,
electronic or other format) of any property or work product belonging
to the Client or containing Confidential Information relating to the
Client or Client's customers What was each Party's Property and
Contacts before this Agreement remains their Property and Contacts
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after this Agreement. Any Property and Contacts jointly developed
during the course of this Agreement remains joint Property and
Contacts afterwards.
7. NON-SOLICITATION, NON-DEFAMATION:
The Parties agree that while this Agreement is in effect and for a period
of two years thereafter, each Party will not for itself or any third party,
directly or indirectly divert or attempt to divert from the other Party (or
any affiliate of it that might be formed) any business of any kind in which
the other Party is engaged including, without limitation, the solicitation
of or interference with any of its customers, clients or vendors Contractor
or Employee to terminate its business relationship with the other Party.
During the term of this Agreement and for one (1) year thereafter, The
Parties will not encourage or solicit any employee, independent contractor
or contractor of the other Party (or any of its affiliates) to leave that
Party for any reason. The Parties agree that they will not make or
disseminate any defamatory comments or communications about the other
Party.
8. TERMINATION:
8.1 The Parties may terminate this Agreement at any time for any reason or
no reason upon thirty (30) calendar days written notice to the other
Party.
8.2 In the event of termination, neither Party shall be discharged for any
antecedent obligations or liabilities to the other Party under this
Agreement, unless otherwise agreed in writing. On and after
termination or expiration of this Agreement, whether pursuant to the
provisions of this Section 8.2, Section 1.1 or otherwise, Consultant
shall immediately cease performance of all Services and inform Client
of any and all contacts and/or leads that Consultant was pursuing at
the time of termination or expiration.
8.3 In the event of termination, the Client shall owe the Consultant their
appropriate compensation through the conclusion of all
work-in-progress transactions which shall include any transactions
which are entered into by the Client during the Term and for a period
of six (6) months from the date of termination of this Agreement to a
Covered Customer or Covered Investor or otherwise made by Client as a
direct result of Consultant's efforts hereunder during the Term.
9. GENERAL PROVISIONS:
9.1 This Agreement shall be governed by the laws of the State of
California without regard to conflicts of laws principles. Each party
irrevocably consents to the personal jurisdiction of federal and state
courts located in Los Angeles, California, as applicable, for any
matter arising out of or relating to this Agreement. No provision in
this Agreement is to be interpreted against such party because that
party drafted such provision. In the event of any action or proceeding
arising out of the subject matter hereof, the prevailing party shall
be entitled to recover from the other party its reasonable attorney's
fees and costs.
9.2 If any provision of this Agreement is held by a court of law to be
illegal, invalid or unenforceable, (a) that provision shall be deemed
amended to achieve as nearly as possible the same economic effect as
the original provision, and (b) the legality, validity enforceability
of the remaining provisions of this Agreement shall not be affected or
impaired thereby.
9.3 The parties acknowledge and agree that the performance of the Services
hereunder by the Consultant constitutes personal services that may not
be assigned or delegated to a third party without the written consent
of the Client. The Consultant shall not subcontract or assign the
performance of any portion of the Services without the Client's prior
written consent. Any purported subcontract or agreement not approved
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by the Client shall be void. The Consultant hereby agrees that the
Client may assign this Agreement to its designated representatives or
affiliates.
9.4 Waiver by the Parties of any default hereunder shall not be deemed a
waiver of any other default. No provision of this Agreement shall be
deemed waived, amended or modified by either party, unless such
waiver, amendment or modification is in writing and signed by the
authorized representative of each party.
9.5 The Parties acknowledge that because of the unique nature of any
Innovations and the confidential information that may be revealed
during the performance of the Services under this Agreement, the other
Party would suffer irreparable harm if the non-complying Party failed
to comply with any of its obligations under Sections 5 through 7 of
this Agreement, and monetary damages would be inadequate to fully
compensate The harmed Party. The Parties shall, in addition to any
other remedies available at law or in equity, be entitled to
injunctive relief to enforce the terms of Sections 5 through 7 of this
Agreement.
9.6 This Agreement, together with all Exhibits and other documents
attached hereto, constitutes the entire agreement between the Parties
relating to its subject matter and supersedes all prior or
contemporaneous oral or written agreements concerning the subject
matter hereof.
9.7 All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (i) personally
served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable air
courier service with charges prepaid, or (iv) transmitted by hand
delivery, telegram, email or facsimile, addressed as set forth below
each Party's signature or to such other address as such party shall
have specified most recently by written notice. Any notice or other
communication required or permitted to be given hereunder shall be
deemed effective (a) upon hand delivery or delivery by facsimile, with
accurate confirmation generated by the transmitting facsimile machine,
at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received),
or the first business day following such delivery (if delivered other
than on a business day during normal business hours where such notice
is to be received) (b) on the second business day following the date
of mailing by express courier service, fully prepaid, addressed to
such address, or upon actual receipt of such mailing, whichever shall
first occur or (c) if given by email, upon receipt by the sending
party of an email from the receiving party confirming receipt
9.8 This Agreement may be executed in any number of counterparts and by
the different signatories hereto on separate counterparts, each of
which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument. This
Agreement may be executed by facsimile signature and delivered by
electronic transmission.
NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO INDUCE EITHER PARY TO SIGN THIS
AGREEMENT. THE PARTIES SIGN THIS AGREEMENT VOLUNTARILY AND FREELY.
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IN WITNESS WHEREOF the parties hereto execute the Agreement on the date and year
written below.
"CONSULTANT" "CLIENT"
GREENCORE CAPITAL PARTNERS, LLC ENVISION SOLAR INTERNATIONAL
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ 7675 DAGGET, SUITE 150
SAN DIEGO, CA. 92101 ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
BY: /s/ ▇▇▇ ▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- ----------------------------
Title : CEO Title: President
Date: 01/10/13 Date: 01/10/13
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