Attached files
EXHIBIT 10.1
ENVISION SOLAR INTERNATIONAL, INC.
RESTRICTED STOCK GRANT AGREEMENT
This Restricted Stock Grant Agreement (the "Agreement") is made and entered
into as of January 23, 2014, (the "Effective Date") by and between Envision
Solar International, Inc., a Nevada corporation (the "Company"), and the person
named below (the "Grantee").
Grantee: Paul H. Feller
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Social Security Number: (Provided Separately)
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Address: ----------------------------------------
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Total Number of Shares to Be Granted: 1,000,000 (the "Restricted Shares")
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1. GRANT OF RESTRICTED SHARES AND ESCROW.
1.1 GRANT OF RESTRICTED SHARES. In consideration for the performance
of services by the Grantee for the Company as a director, the Company hereby
grants the Restricted Shares to the Grantee, subject to the conditions of this
Agreement. As used in this Agreement, the term "Shares" shall mean shares of the
Company's common stock, par value $0.001 per share, which includes the
Restricted Shares granted under this Agreement, and all securities received (i)
in replacement of the Shares, (ii) as a result of stock dividends or stock
splits with respect to the Shares, and (iii) in replacement of the Shares in a
merger, recapitalization, reorganization or similar corporate transaction.
1.2 ESCROW OF RESTRICTED SHARES. The Secretary of the Company shall
hold the Shares in escrow and will either (i) release eligible Restricted Shares
when vested or (ii) in the event Grantee is terminated as set forth in Section
2.2 of this Agreement, return Restricted Shares which have not yet vested as of
the date of such termination to the Company for cancellation. Grantee will have
no voting rights with respect to Restricted Shares until such Restricted Shares
have been vested and released from escrow to the Grantee. All cash, stock, and
other dividends declared with respect to the Restricted Shares while in escrow
will be remitted back to the Company when paid.
2. VESTING. The Restricted Shares shall vest and be released from escrow to
the Grantee under this Agreement in accordance with the vesting schedule set
forth in Section 2.1 and the other conditions precedent to the release from
escrow of the eligible Restricted Shares.
2.1 SCHEDULE OF VESTING. Grantee shall be eligible for the release
from escrow of Restricted Shares as follows: 166,672 Shares on January 24, 2014
and then 69,444 Shares on the last day of each calendar quarter thereafter
commencing on March 31, 2014.
2.2 TERMINATION. If the Grantee's services with the Company as a
director terminate for any reason before all of the Restricted Shares have
vested in accordance with Section 2.1 of this Agreement, then the Restricted
Shares which have not yet vested as of the 2 date of such termination shall
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immediately be forfeited as of the date of such termination and returned to the
Company by the Secretary for cancellation.
2.3 TITLE TO SHARES. The exact spelling of the name(s) under which
Grantee shall take title to the Shares is:
Paul H Feller
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Grantee desires to take title to the Shares as follows:
[ x ] Individual, as separate property
[ ] Husband and wife, as community property
[ ] Joint Tenants
To assign the Shares to a trust, a stock transfer agreement in a form
and substance acceptable to the Company must be completed and executed and such
transfer must comply with applicable federal and state securities laws.
3. REPRESENTATIONS AND WARRANTIES OF GRANTEE. Grantee represents and
warrants to the Company that:
3.1 AGREES TO TERMS OF THIS AGREEMENT. Grantee has received a copy of
this Agreement, has read and understands the terms of this Agreement, and agrees
to be bound by its terms and conditions.
3.2 ACCEPTANCE OF SHARES FOR OWN ACCOUNT FOR INVESTMENT. Grantee is
acquiring the Shares for Grantee's own account for investment purposes only and
not with a view to, or for sale in connection with, a distribution of the Shares
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"). Grantee has no present intention of selling or otherwise disposing of all
or any portion of the Shares.
3.3 ACCESS TO INFORMATION. Grantee has had access to all information
regarding the Company and its present and prospective business, assets,
liabilities and financial condition that Grantee reasonably considers important
in making the decision to acquire the Shares, and Grantee has had ample
opportunity to ask questions of the Company's representatives concerning such
matters and this investment.
3.4 UNDERSTANDING OF RISKS. Grantee is fully aware of: (i) the highly
speculative nature of the investment in the Shares; (ii) the financial hazards
involved; (iii) the lack of liquidity of the Shares and the restrictions on
transferability of the Shares (e.g., that Grantee may not be able to sell or
dispose of the Shares or use them as collateral for loans); (iv) the
qualifications and backgrounds of the management of the Company; and (v) the tax
consequences of investment in the Shares. Grantee is capable of evaluating the
merits and risks of this investment, has the ability to protect Grantee's own
interests in this transaction and is financially capable of bearing a total loss
of this investment.
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3.5 NO GENERAL SOLICITATION. At no time was Grantee presented with or
solicited by any publicly issued or circulated newspaper, mail, radio,
television or other form of general advertising or solicitation in connection
with the offer, sale and issue of the Shares.
4. COMPLIANCE WITH SECURITIES LAWS. Grantee understands and acknowledges
that the Shares have not been registered with the Securities and Exchange
Commission (the "SEC") under the Securities Act and that, notwithstanding any
other provision of this Agreement to the contrary, the issuance of any Shares is
expressly conditioned upon compliance with the Securities Act and all applicable
state securities laws. Grantee agrees to cooperate with the Company to ensure
compliance with such laws.
5. RESTRICTED SECURITIES.
5.1 NO TRANSFERS UNLESS REGISTERED OR EXEMPT. Grantee understands that
Grantee may not transfer any Shares unless such Shares are registered under the
Securities Act and qualified under applicable state securities laws or unless,
in the opinion of counsel to the Company, exemptions from such registration and
qualification requirements are available. Grantee understands that only the
Company may file a registration statement with the SEC and that the Company is
under no obligation to do so with respect to the Shares. Grantee has also been
advised that exemptions from registration and qualification may not be available
or may not permit Grantee to transfer all or any of the Shares in the amounts or
at the times proposed by Grantee.
5.2 SEC RULE 144. In addition, Grantee has been advised that SEC Rule
144 promulgated under the Securities Act, which permits certain limited sales of
unregistered securities, is not presently available with respect to the Shares
and, in any event, requires that the Shares be held for a minimum of six months,
and in certain cases one (1) year, after they have been acquired, before they
may be resold under Rule 144. Grantee understands that Rule 144 may indefinitely
restrict transfer of the Shares so long as Grantee remains an "affiliate" of the
Company or if "current public information" about the Company (as defined in Rule
144) is not publicly available.
6. MARKET STANDOFF AGREEMENT. Grantee agrees in connection with any
registration of the Company's securities that, upon the request of the Company
or the underwriters managing any public offering of the Company's securities,
Grantee shall not sell or otherwise dispose of any Shares without the prior
written consent of the Company or such underwriters, as the case may be, for
such period of time (not to exceed one hundred eighty (180) days) after the
effective date of such registration requested by such underwriters and subject
to all restrictions as the Company or the underwriters may specify. Grantee
further agrees to enter into any agreement reasonably required by the
underwriters to implement the foregoing.
7. COMPANY TAKE-ALONG RIGHT.
7.1 APPROVED SALE. If the Board of Directors of the Company (the
"Board") shall deliver a notice to Grantee (a "Sale Event Notice") stating that
the Board has approved a sale of all or a portion of the Company (an "Approved
Sale") and specifying the name and address of the proposed parties to such
transaction and the consideration payable in connection therewith, Grantee shall
(i) consent to and raise no objections against the Approved Sale or the 4
process pursuant to which the Approved Sale was arranged, (ii) waive any
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dissenter's rights and other similar rights, and (iii) if the Approved Sale is
structured as a sale of securities, agree to sell Grantee's Shares on the terms
and conditions of the Approved Sale which terms and conditions shall treat all
stockholders of the Company equally (on a pro rata basis), except that shares
having a liquidation preference may, if so provided in the documents governing
such shares, receive an amount of consideration equal to such liquidation
preference in addition to the consideration being paid to the holders of Shares
not having a liquidation preference.
Grantee shall take all necessary and desirable lawful actions as
directed by the Board and the stockholders of the Company approving the Approved
Sale in connection with the consummation of any Approved Sale, including without
limitation, the execution of such agreements and such instruments and other
actions reasonably necessary to (A) provide the representations, warranties,
indemnities, covenants, conditions, non-compete agreements, escrow agreements
and other provisions and agreements relating to such Approved Sale and, (B)
effectuate the allocation and distribution of the aggregate consideration upon
the Approved Sale, provided, that this Section 7 shall not require Grantee to
indemnify the purchaser in any Approved Sale for breaches of the
representations, warranties or covenants of the Company or any other
stockholder, except to the extent (x) Grantee is not required to incur more than
its pro rata share of such indemnity obligation (based on the total
consideration to be received by all stockholders that are similarly situated and
hold the same class or series of capital stock) and (y) such indemnity
obligation is provided for and limited to a post-closing escrow or holdback
arrangement of cash or stock paid in connection with the Approved Sale.
7.2 COSTS. Grantee shall bear Grantee's pro rata share (based upon the
amount of consideration to be received) of the reasonable costs of any sale of
Shares pursuant to an Approved Sale to the extent such costs are incurred for
the benefit of all selling stockholders of the Company and are not otherwise
paid by the Company or the acquiring party. Costs incurred by Grantee on
Grantee's own behalf shall not be considered costs of the transaction hereunder.
7.3 SHARE DELIVERY. At the consummation of the Approved Sale, Grantee
shall, if applicable, deliver certificates representing the Shares to be
transferred, duly endorsed for transfer and accompanied by all requisite stock
transfer taxes, if any, and the Shares to be transferred shall be free and clear
of any liens, claims or encumbrances (other than restrictions imposed by this
Exercise Notice) and Grantee shall so represent and warrant.
7.4 TERMINATION OF COMPANY TAKE-ALONG RIGHT. The Take-Along Right
shall terminate as to the Shares upon the Public Trading Date of the Shares. For
the purposes of this Agreement, the "Public Trading Date" of the Shares is the
date on which the Shares first become freely tradable under the Securities Act,
either pursuant to Rule 144 or another provision of the Securities Act. The
holder of the Shares may apply to have all restrictive transfer legends removed
from the certificates evidencing the Shares, provided that the request for
legend removal is made at such times and in such manner that removal is
accomplished in compliance with the Securities Act and the rules and regulations
promulgated under the Securities Act; and provided further, that any proposed
sale of Shares must comply with all Company policies and procedures, and with
applicable federal, state and local laws.
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8. RIGHTS AS A STOCKHOLDER. Subject to the terms and conditions of this
Agreement, Grantee shall have all of the rights of a stockholder of the Company
with respect to the Shares after eligible Restricted Shares vest and are
released from escrow to Grantee, until such time as Grantee disposes of the
Shares.
9. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
9.1 LEGENDS. Grantee understands and agrees that the Company shall
place the legends set forth below or similar legends on any stock certificate(s)
evidencing the Shares, together with any other legends that may be required by
state or federal securities laws, the Company's Certificate of Incorporation or
Bylaws, any other agreement between Grantee and the Company or any agreement
between Grantee and any third party:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER
THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR
THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF
TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT
ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A 180 DAY
MARKET STANDOFF RESTRICTION AS SET FORTH IN A CERTAIN AGREEMENT
BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF
WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. AS A
RESULT OF SUCH AGREEMENT, THESE SHARES MAY NOT BE TRADED PRIOR TO 180
DAYS AFTER THE EFFECTIVE DATE OF A PUBLIC OFFERING OF THE COMMON STOCK
OF THE ISSUER HEREOF. SUCH RESTRICTION IS BINDING ON TRANSFEREES OF
THESE SHARES.
9.2 STOP-TRANSFER INSTRUCTIONS. Grantee agrees that, to ensure
compliance with the restrictions imposed by this Agreement, the Company may
issue appropriate "stoptransfer" instructions to its transfer agent, if any, and
if the Company transfers its own securities, it may make appropriate notations
to the same effect in its own records.
9.3 REFUSAL TO TRANSFER. The Company shall not be required (i) to
transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares, or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares have been so transferred.
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10. TAX CONSEQUENCES. GRANTEE UNDERSTANDS THAT GRANTEE MAY SUFFER ADVERSE
TAX CONSEQUENCES AS A RESULT OF GRANTEE'S ACQUISITION OR DISPOSITION OF THE
SHARES. GRANTEE REPRESENTS (i) THAT GRANTEE HAS CONSULTED WITH A TAX ADVISER
THAT GRANTEE DEEMS ADVISABLE IN CONNECTION WITH THE ACQUISITION OR DISPOSITION
OF THE SHARES AND (ii) THAT GRANTEE IS NOT RELYING ON THE COMPANY FOR ANY TAX
ADVICE.
11. COMPLIANCE WITH LAWS AND REGULATIONS. The issuance and transfer of the
Shares shall be subject to and conditioned upon compliance by the Company and
Grantee with all applicable state and federal laws and regulations and with all
applicable requirements of any stock exchange or automated quotation system on
which the Company's common stock may be listed or quoted at the time of such
issuance or transfer.
12. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights under
this Agreement. This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the Company. Subject to the restrictions on
transfer herein set forth, this Agreement shall be binding upon Grantee and
Grantee's heirs, executors, administrators, legal representatives, successors
and assigns.
13. GOVERNING LAW; SEVERABILITY. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Nevada as such
laws are applied to agreements between Nevada residents entered into and to be
performed entirely within Nevada, excluding that body of laws pertaining to
conflict of laws. If any provision of this Agreement is determined by a court of
law to be illegal or unenforceable, then such provision shall be enforced to the
maximum extent possible and the other provisions shall remain fully effective
and enforceable.
14. NOTICES. Any notice required to be given or delivered to the Company
shall be in writing and addressed to the Corporate Secretary of the Company at
its principal corporate offices. Any notice required to be given or delivered to
Grantee shall be in writing and addressed to Grantee at the address indicated
above or to such other address as Grantee may designate in writing from time to
time to the Company. All notices shall be deemed effectively given upon personal
delivery, (i) three (3) days after deposit in the United States mail by
certified or registered mail (return receipt requested), (ii) one (1) business
day after its deposit with any return receipt express courier (prepaid), or
(iii) one (1) business day after transmission by facsimile or email.
15. FURTHER INSTRUMENTS. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
16. HEADINGS; COUNTERPARTS. The captions and headings of this Agreement are
included for ease of reference only and shall be disregarded in interpreting or
construing this Agreement. All references herein to Sections shall refer to
Sections of this Agreement. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and all of which together shall constitute one and the same agreement.
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17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter of this
Agreement, and supersedes all prior understandings and agreements, whether oral
or written, between the parties hereto with respect to the specific subject
matter of this Agreement.
WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized representative and Grantee has executed this Agreement as of the
Effective Date.
ENVISION SOLAR INTERNATIONAL, INC. GRANTEE
/s/ Paul H. Feller
By: ---------------------------------
---------------------------------- (Signature)
Desmond Wheatley Paul H. Feller
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(Please print name) (Please print name)
Chief Executive Officer
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(Please print title)
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SPOUSE CONSENT
The undersigned spouse of Paul H. Feller (the "Grantee") has read,
understands, and hereby approves the Restricted Stock Grant Agreement between
Envision Solar International, Inc., a Nevada corporation (the "Company") and
Grantee (the "Agreement"). In consideration of the Company's granting my spouse
the right to purchase the Shares as set forth in the Agreement, the undersigned
hereby agrees to be irrevocably bound by the Agreement and further agrees that
any community property interest shall similarly be bound by the Agreement. The
undersigned hereby appoints Grantee as my attorney-in-fact with respect to any
amendment or exercise of any rights under the Agreement.
Date: 1/9/2014
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Print Name of Grantee's Spouse
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(Please print name) Signature of Grantee's Spouse
--------------------------------------- Address:
(Please print title) --------------------------------
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Check this box if you do not
have a spouse.
