EXHIBIT 10.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement") is entered into to be
effective as of February 1, 2014 by and between Envision Solar International,
Inc. (the "Company"), a Nevada corporation, with its principal office at 0000
Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 and Cronus Equity ("Consultant or CE")
(collectively with the Company, the "Parties", and each individually, a
"Party"), with reference to the following facts:
WHEREAS, upon the terms and subject to the conditions of this
Agreement, the Company desires to engage the Consultant to provide certain
consulting services to the Company, and the Consultant desires to render such
services.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, the Company and Consultant agree as
follows:
1. ENGAGEMENT OF CONSULTANT. The Company hereby engages Consultant to
provide consulting services pursuant to this Agreement, and the
Consultant hereby accepts such. Consultant acknowledges and agrees that
Consultant shall provide such services on a best efforts first-priority
basis and will not participate in efforts that are knowingly
competitive to the Company or to this Agreement. With that said,
Consultant has an expertise in the public markets and media sectors of
business and has the right to pursue business in these and other
sectors of business.
2. SERVICES. Consultant's services shall be rendered in the area of
business development, fundraising and the evaluation of asset
acquisition for Company and shall be done at the direction of the CEO.
In addition, Consultant shall use best efforts to assist with existing
Company related business.
3. PROFESSIONAL MANNER. Consultant agrees to render all services generally
and customarily performed in similar capacities in a professional
manner in accordance with specifications furnished by Company.
Consultant shall within reason use his best efforts to promptly comply
with all instructions, directions, requests, rules, and regulations of
Company in connection with Consultant's services to be rendered under
this Agreement.
4. COMPENSATION. Provided Consultant renders services in accordance with
this Agreement, Company will pay to Consultant the monthly fee of Ten
Thousand Dollars ($10,000.00) or such amount as is jointly agreed, in
advance and in writing by the Parties ("Monthly Fee"), during the
twelve (12) month term. Consultant will deliver an invoice upon
signature of this agreement and at or prior to the first business day
of each month and payment will be paid in a timely manner after the
first day of the month for which the invoice is issued.
5. ADDITIONAL COMPENSATION. In addition to the (a) consulting services
performed by the Consultant for the Monthly Fee, and (b) the
Consultant's performance of his other duties as a director of the
Company, the Company may from time to time during the term of this
Agreement request the Consultant to assist it in raising capital in the
form of equity or debt ("Additional Services"). In consideration for
the Consultant's Additional Services, including referring prospective
investors to the Company (collectively, the "Investors"), the
Consultant may be entitled to an additional consulting fee mutually
agreed upon in advance in writing by the Company and the Consultant
(the "Additional Consulting Fee"). The Consultant will submit invoices
to the Company on a monthly basis for Additional Consulting Fees,
payable within 20 days of receipt, provided that (i) the Additional
Consulting Fees will only be payable with respect to actual funds
contributed or loaned to, and accepted by, the Company from an Investor
introduced by the Consultant and not previously known to the Company
from another source, (ii) the Company may accept or reject investment
proposals from prospective Investors in its sole and absolute
discretion, and (iii) the amount of the Additional Consulting Fees will
not be based on a percentage of the investment, and will be payable
only if and when the Investor's investment is received by the Company
is cash or cash equivalents that clear into good funds.
6. EXPENSES. Company will only reimburse the Consultant for expenses (1)
that were pre-approved by the management, and (2) only upon
presentation of expense receipts or statements or such other supporting
information as the Company may require (the "Expense Report").
7 TERM. The term of this agreement is twelve (12) months. The foregoing
notwithstanding the Company shall have the right to terminate this
agreement with Consultant at any time for any reason or for no reason,
with 30 days advance notice. The Company may at its option terminate
this Agreement immediately without 30 days advance notice in the event
that the Employee is convicted of committing a felony under federal,
state or local law or commits gross negligence in the performance of
his duties under this Agreement. The Company may also terminate this
Agreement in the event that the Consultant breaches the Agreement and
fails to cure such breach within seven (7) days of written notice from
the Company.
8. WRITTEN REPORTS. Company may request data and reports from Consultant
from time to time. Consultant shall provide reports in reasonable form,
to include such information and data that is reasonably requested by
the Company.
9. INTELLECTUAL PROPERTY. All right, title and interest in the material,
work, results and data specifically developed under this Agreement on
behalf of the company, including all elements thereof, will at all
times belong solely and exclusively to Company for use in any manner or
media it may make or authorize throughout the world in perpetuity.
Similarly, any and all materials, ideas, or other creative and literary
property and Consultant's adaptations and arrangements thereof will
belong solely and completely to Company for any use it may thereafter
see fit. Any and all inventions, discoveries, developments and
innovations conceived by the Consultant during this engagement relative
to the duties under this Agreement shall be the exclusive property of
the Company; and the Consultant hereby assigns all right, title, and
interest in the same to the Company, and Consultant's services shall be
deemed those of an employee for hire for copyright purposes. For
avoidance of doubt, the results and proceeds of Consultant's services
hereunder, including, without limitation, any works of authorship
resulting from his services during the Term will be works-made-for hire
and Company will be deemed the sole owner throughout the universe of
any and all rights of whatsoever nature therein, whether or not now or
hereafter known, existing, contemplated, recognized or developed, with
the right to use the same in perpetuity in any manner Company
determines in its sole discretion without any further payment to
Consultant. If, for any reason, any of such results and proceeds will
not legally be deemed a work-for-hire, then Consultant hereby
irrevocably assigns and agrees to assign any and all of his right,
title and interest thereto, including, without limitation, any and all
intellectual property rights, copyrights, patents, trade secrets,
trademarks and/or other rights of whatsoever nature therein, whether or
not now or hereafter known, existing, contemplated, recognized or
developed, to Company, and Company will have the right to use the same
in perpetuity throughout the universe without any further payment to
Consultant. Consultant will use best efforts in cooperating with all
requirements or requests by Company and by law to ensure any
intellectual property rights contemplated by this Agreement are
assigned to Company.
10. CONFIDENTIALITY. The Parties have executed a mutual Confidentiality and
Non Disclosure Agreement dated February 1 2014. For purposes of this
Agreement, "CONFIDENTIAL INFORMATION" shall mean: (a) all information
regarding the Company and its current and future subsidiaries,
affiliates, related entities and investments that is or is intended to
be confidential by the Company, including without limitation, business
plans, marketing plans, business development and expansion, financial
statements and financial information, products, services, vendors,
suppliers, customers, contracts, forecasts, projections, sales,
marketing and employees and consultants of the Company, and any
proprietary, trade secret, or other information that is not in the
public domain, as well as any attorney-client privileged or work
product information; and (b) information of any third party with
respect to which the Company is under obligation to keep confidential;
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but excluding information that is held not to be confidential by court
order.
a. Consultant agrees that he will maintain the Confidential
Information in strictest confidence will not disclose the
Confidential Information to any person and will not use the
Confidential Information except to assist the Company, and its
designated agents, including its attorneys, as contemplated by
this Agreement. Consultant shall immediately give notice to
the Company of any unauthorized use or disclosure of the
Confidential Information. Consultant agrees to assist the
other party in remedying any such unauthorized use or
disclosure of the other party's Confidential Information.
b. A disclosure by Consultant of Confidential Information shall
not be considered to be a breach of this Agreement or a waiver
of confidentiality for other purposes if such disclosure is:
(a) in response to a valid order by a court or other
governmental body; (b) otherwise required by law; or (c)
necessary to establish the rights of the parties under this
Agreement; provided, in any case, that Consultant shall
provide prompt prior written notice thereof to the Company to
enable the Company to seek a protective order or otherwise
prevent disclosure of the Confidential Information or (d) can
be located in the public domain..
c. The provisions of this Section 9 shall survive any termination
of Consultant's engagement under this Agreement as long as all
payments are made in full per Section 4 (Compensation).
11. MISCELLANEOUS & ARBITRATION.
d. NO VIOLATION OF OTHER AGREEMENTS. Each of the parties hereto
represents and warrants that execution, delivery, or
performance of this Agreement does not conflict with, or
violate the terms of, any other agreement to which it is a
party or by which it is bound.
e. INDEPENDENT CONTRACTOR: LIMITATION OF LIABILITY. The
Consultant is an independent contractor to the Company, and
nothing herein shall be deemed to constitute the Consultant or
his agents as an employee or agent of the Company. Consultant
is responsible for all reporting of any / all taxes in their
jurisdiction that may be due for compensation paid for service
rendered under this agreement. Consultant has no power or
authority to bind the Company, and shall not make any
representation or statement that he has such power.
f. NOTICES. All notices, requests, demands and other
communications (collectively, "NOTICES") given pursuant to
this Agreement shall be in writing, and shall be delivered by
email, personal service, courier, facsimile transmission or by
United States first class, registered or certified mail,
postage prepaid, addressed to the party at the address set
forth on the signature page of this Agreement. Any Notice,
other than a Notice sent by registered or certified mail,
shall be effective when received; a Notice sent by registered
or certified mail, postage prepaid return receipt requested,
shall be effective on the earlier of when received or the
third day following deposit in the United States Postal
Depository. Any party may from time to time change its address
for further Notices hereunder by giving notice to the other
party in the manner prescribed in this Section.
g. ASSIGNMENT. Neither party may assign its interest in this
Agreement or delegate its responsibilities hereunder without
prior written consent of the other party, provided that the
Company may assign its rights and obligations under this
Agreement to any successor by merger or consolidation, to any
purchaser of all or substantially all of the assets of the
Company or to any subsidiary or parent of the Company.
h. SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Agreement or portion thereof
shall not affect the validity or unenforceability of any other
provision thereof. If any provision of this Agreement is
adjudicated to be so broad as to be unenforceable, it shall be
interpreted to be only as broad as is enforceable.
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i. COUNTERPARTS: GOVERNING LAW. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of
California.
j. HEADINGS. The article and section headings in this Agreement
are solely for convenience of reference and shall be given no
effect in the construction or interpretation of this
Agreement.
ARBITRATION. All claims or disputes between the Company and
Consultant arising out of or relating to this Agreement, or
the breach thereof, except those claims that may not as a
matter of law be subject to arbitration, shall be decided by
final and binding arbitration in accordance with the American
Arbitration Association, Employment Arbitration Rules and
Mediation Procedures (the "AAA Employment Rules"), which can
be found at XXXX://XXX.XXX.XXX and are incorporated herein by
this reference; further, Consultant represents and warrants
that, before signing this Agreement, he has had an opportunity
to review the AAA Employment Rules online. Moreover, nothing
in this Agreement prohibits either party from seeking
temporary injunctive or other equitable relief in aid of
arbitration from a court of competent jurisdiction. A neutral
and impartial arbitrator shall be chosen by mutual agreement
of the parties; provided, however, if the parties are unable
to agree upon an arbitrator within a reasonable period of
time, then a neutral and impartial arbitrator shall be
appointed in accordance with the arbitrator nomination and
selection procedure set forth in the AAA Employment Rules. The
arbitrator shall prepare a written decision containing the
essential findings and conclusions on which the award is based
so as to ensure meaningful judicial review of the decision.
The arbitrator shall apply the same substantive law, with the
same statutes of limitations and same remedies, that would
apply if the claims were brought in a California state court
of law. The arbitrator shall have the authority to rule on a
motion to dismiss and/or summary judgment by either party, and
the arbitrator shall apply the standards governing such
motions under the California Rules of Civil Procedure. The
prevailing party's reasonable costs and expenses of
arbitration shall be paid by the opposing party.
THE PARTIES ALSO UNDERSTAND AND AGREE THAT THIS AGREEMENT CONSTITUTES A
WAIVER OF THEIR RIGHT TO A TRIAL BY JURY OF ANY CLAIMS OR CONTROVERSIES
COVERED BY THIS AGREEMENT OR TO PARTICIPATE IN A CLASS ACTION. THE
PARTIES AGREE THAT NONE OF THOSE CLAIMS OR CONTROVERSIES SHALL BE
RESOLVED BY A JURY TRIAL OR IN A CLASS ACTION.
THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN GIVEN THE
OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH THEIR LEGAL COUNSEL AND HAVE
AVAILED THEMSELVES OF THAT OPPORTUNITY TO THE EXTENT THEY WISH TO DO
SO.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CONSULTANT COMPANY
Signature: /s/ Xxxx Xxxxxx Signature: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxx Xxxxxx Name : Xxxxxxx Xxxxxxxx
Date: 2/11/14 Date: 2/21/14
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