f8k0210ex10xxix_envision.htm


    Exhibit
10.29

     

    
      


       

      Interim Services Agreement

       

      September
1, 2009

       

      Robert
Noble. CEO

      Envision
Solar International, Inc.

      '1225 Executive Square Suite 1000.

      La Jolla,
CA 92037

       

      Dear
Bob:

       

      Tatum,
LLC ("Tatum," "we," "us" or "our") is pleased that Envision Solar International.
Inc. ("Company," "you" or "your")
has selected us to provide you with outsourced interim services. The
services (the "Services")
and tees will be more particularly described on the Schedule attached hereto and
will be provided by the individual resource (the "Tatum Resource") identified on
such Schedule. Schedules for additional
Tatum Resources may he added from time to time upon
the mutual
written agreement of the parties. In addition, upon the request of
the Company and the execution of an additional Schedule to this agreement, Tatum
will provide search Services to the Company.

       

      Engagement The Tatum Resource will be one of
Tatum's employees or members, and we will be solely responsible
for determining
the conditions, terms
and
payment of compensation
and benefits
for the Tatum Resource.
You will be solely responsible for providing the Tatum Resource day-to-day guidance.
supervision. direction, assistance and other information
necessary for the successful and timely
completion of the
Services. Tatum will have no oversight, control, or authority over the Tatum
Resource with respect to
the Services. The
Company acknowledges that
it is solely responsible for the sufficiency of the Services for its purposes. The
Company will designate a management-level individual to be responsible for overseeing the
Services, and the Tatum Resource will report directly to such individual
with respect to the
provision of the Services. Unless the Tatum Resource is acting as an executive
officer of the Company and
is authorized by the
Company to make such
decision, the Company will not permit or require the Tatum Resource to be the
ultimate decision making authority for any material decision relating to your business, including,
without limitation, any proposed merger, acquisition, recapitalization,
financial strategy or
restructuring.

       

      Fees
and Expenses. You will pay
us the tees set forth on
the applicable Schedule.
In addition to our standard professional service
fees. we will charge an administrative fee equal
to 5% of our professional Service
fees, which covers
ancillary administrative costs such as technology, communication,
and supplies. In addition, you will
reimburse Tatum directly for all pre-approved travel and out-of-pocket
expenses incurred in
connection with this agreement (including any Schedules).

       

      Payment
Terms. Payments to Tatum
should be made within 30 days of receipt of invoice by electronic transfer in
accordance with the instructions set forth below or such alternative
instructions as provided by us from time to time. Any amounts not
paid when due may be subject to a periodic service charge equal to the lesser of 1.5% per month and the
maximum amount allowed under applicable law, until such amounts
arc paid in full. including assessed service charges. In lieu of terminating
this agreement, we may
suspend the provision of
any Services if amounts owed are not paid in accordance with the terms of
this
agreement.

       

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      Bank Name
and Address: Silicon Valley Bank, 3003 Tasman Drive, Santa Clara, CA
95054

      Beneficiary:
Tatum. LLC

      Beneficiary
Account Number: 3300599791

      ABA Transit/Routing Number: 121140399
Please reference
Company name in the body
of the payment.

       

      Effective
Date and Termination_ This
agreement will he effective as of the earlier of (0 the date Tatum begins providing Services to the Company, and (ii) the date of the last
signature to this agreement as indicated on the signature page.
In
the event that a party
commits a breach of this agreement (including any Schedule) and fails to cure the
same within 10
days following delivery by
the non-breaching party of written notice specifying the nature of
the breach. the non-breaching party may terminate this agreement or the applicable Schedule effective
upon written notice of such termination. The termination rights set forth in this Section are in addition
to and not in lieu of the termination rights set
forth in each of the Schedules.

       

      Hiring
the Tatum Resource Outside of a Tatum
Agreement. The parties
recognize and agree that Tatum is responsible for introducing
the Tatum Resources to the Company. Therefore, if at any time during the time
frame in which a Tatum
Resource is providing
Services to the Company and for a period of 12-months thereafter, other than in
connection with this
agreement or another
Tatum agreement, the
Company or any of its subsidiaries or affiliates employs such Tatum
Resource, or engages such Tatum Resource as an independent contractor,
the Company will pay Tatum
a placement fee in an
amount equal to 50% of
Tatum's Annualized Fees (as defined below) The amount will be
due and payable to Tatum upon written demand to the Company.
"Annualized Fees" means the equivalent of what Tatum would receive under this agreement for such
Tatum Resource on a full-time annual basis plus the maximum amount of any bonus for which
Tatum was eligible with
respect to the then -current bonus year for the Tatum Resource. You will have the
opportunity to make the Tatum Resource a permanent_ full -time member
of the Company at any
time during the term of this Schedule by entering into
another form of Tatum
agreement, the terms of which will be negotiated at such
time.

       

      Warranties
and Disclaimers. We
disclaim all
representations and warranties, whether express. implied or statutory, including, but not
limited to any warranties of quality, performance, merchantability, or
fitness of use or purpose.
Without limiting the foregoing, we make no representation or warranty with
respect to the Tatum
Resource or the Services provided hereunder, and we will not be responsible for
any action taken by you in
following or declining to follow any of the Tatum Resource's advice or recommendations. The Services provided
by Tatum
and the Tatum Resource hereunder are
for the sole benefit of the Company and not any
unnamed third parties. The Services will not constitute an audit, review. opinion, or
compilation, or
any other type of financial statement reporting
or attestation
engagement that
is subject to the rules of the AICPA or other similar
state or national professional bodies or laws and will not result in an
opinion or any form of assurance on internal controls.

       

      Limitation of Liability;
Indemnity.

       

      (a) Tatum's
liability in any and all categories and for any and all causes arising under
this agreement, whether based in contract, tort, negligence, strict liability or
otherwise, will. in the aggregate, not exceed the actual fees paid by you to us
over the previous two months' of the agreement with respect to the Tatum Resource from whom the liability
arises. In no event will we be
liable for incidental, consequential, punitive, indirect or special
damages, including, without limitation, interruption or loss of business, profit
or goodwill. As a condition for
recovery of any liability, you must assert any claim against us within
three months after discovery or 60 days after the termination or expiration of
the applicable Schedule under which the liability arises, whichever is
earlier

       

      (b) You agree
to indemnify us and the Tatum Resource to the full extent
permitted by law for any losses, costs, damages, and expenses (including
reasonable attorneys' fees), as they are incurred, in connection
with any cause of action, suit, or other proceeding arising in connection with
the Tatum Resource's services to you.

       

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      

      

      Insurance. To the extent the Company has
directors' and officers' liability insurance in effect, the Company will provide such insurance
coverage for any Tatum Resource serving as an officer or executive of the Company under this agreement at
no additional cost to the Tatum Resource, along with written evidence to Tatum or the Tatum Resource
that the Tatum Resource is covered by such insurance. Furthermore, the Company will maintain
such insurance coverage with
respect to occurrences arising during the term of this agreement for
at least three years following the termination or expiration of the applicable Schedule or will purchase a
directors' and officers' extended reporting period or "tail" policy to cover the Tatum Resource for such
three year period.

       

      Governing and
Witness Fees.

       

      (a) This
agreement will be governed by and construed in accordance with the laws of the
State of California. without regard to conflicts of laws
provisions.

       

      (b) If the
parties are unable to resolve any dispute arising out of or in connection with
this agreement, the parties agree and stipulate that any such disputes will be
settled by binding arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association ("AAA"). The arbitration will be conducted in the San Diego,
California office of the AAA
by a single arbitrator selected by the parties according to the rules
of the AAA, and the decision of the
arbitrator will be final and
binding on both parties. In the event that the parties fail to agree on the
selection of the arbitrator within 30 days after either party's request for arbitration
under this Section. the
arbitrator will be chosen by the AAA. The arbitrator may in his or her
discretion order documentary discovery but will not allow depositions without a
showing of compelling need. The arbitrator will render his or her decision
within 90 days after the call for
arbitration. Judgment on the award of the arbitrator may be entered in and enforced by
any court of competent jurisdiction. The arbitrator will have no authority to award damages
in excess
nr in contravention
of this agreement and may
not amend or disregard any provision of this agreement,
including this section. Notwithstanding the foregoing, either party may seek
appropriate injunctive relief from any court of competent jurisdiction, and Tatum may pursue payment of
any unpaid amounts due
under this agreement through any court of competent
jurisdiction.

       

      (c) In the event any member or employee of
Tatum (including, without limitation. any Tatum Resource) is requested or authorized by you or is
required by government regulation, subpoena or other legal process to produce documents or
appear as witnesses in connection with any action, suit or other proceeding initiated by a
third party against you or by you against a third party. you will, so
long as Tatum is not a party to
the proceeding in which the information is sought, reimburse Tatum for its
member's or employee's
professional time (based on customary rates) and expenses, as well as the fees
and expenses of its counsel, incurred in responding to such
requests. This provision is in addition to and not in lieu of any indemnification
obligations the Company may have under this agreement.

       

      Miscellaneous.

       

      (a) This agreement together with all Schedules
constitutes the entire agreement between the parties with regard to the subject
matter hereof and supersedes any and all agreements, whether oral or
written. between the
parties with respect to its subject matter. No amendment or modification to this
agreement
will be valid unless
in writing and signed by both parties.

       

      (b) If any portion of this agreement is found to
be invalid or unenforceable, such provision will be deemed severable from
the remainder of this agreement
and will not cause the invalidity or unenforceability of the remainder of
this agreement, except to the extent that the severed provision deprives either party of a substantial portion of
its
bargain.

       

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      (c)Neither
party will be deemed to have waived any rights or remedies accruing under this
agreement
unless such waiver is in writing and signed by the party electing to waive the
right or remedy. The waiver by any party of a breach or violation of any
provision of this agreement will not operate or be construed as a waiver of any
subsequent breach of such
provision or any other provision of this agreement.

       

      (d) Neither
party will be liable for any delay or failure to perform under this
agreement

       

      (other than with respect
to payment obligations) to the extent such delay or failure is a result
of an act of God, war, earthquake, civil
disobedience. court order, labor dispute, or other cause beyond such party's
reasonable
control.

       

      (e) You may
not assign your rights or obligations under this agreement without the
express

       

      written
consent of Tatum. Nothing in this agreement will confer any rights upon any
person or entity other than the parties hereto and their respective successors
and permitted assigns and the Tatum Resources.

       

      (f) The
expiration or termination of this agreement or any Schedule will not destroy
or

       

      diminish
the binding force and effect of any of the provisions of this agreement or any
Schedule that expressly, or by reasonable implication, come into or continue in
effect on
or after such expiration or termination, including, without limitation,
provisions relating to
payment of fees
and expenses (including witness fees and expenses and liquidated damage
fees), governing law, arbitration, limitation of liability and
indemnity.

       

      (g) You agree
to reimburse Tatum for all costs and expenses incurred by Tatum in
enforcing

       

      collection
of any monies due under this agreement. including, without limitation,
reasonable attorneys' fees. court costs and arbitration fees.

       

      (h) You agree
to allow us to use the Company's logo and name on Tatum's
website and other

       

      marketing
materials for the sole purpose of identifying the Company as a client of Tatum.
Tatum will not use the Company's logo or name in any press release or general
circulation advertisement without the Company's prior written
consent.

       

      We
appreciate the opportunity
to serve you and believe this agreement accurately reflects
our mutual understanding
of the terms upon which the Services will be provided. We would be
pleased to discuss this agreement with you at your convenience. If the foregoing
is in accordance with your understanding, please
sign a
copy of this
agreement and
return it to my attention.

      


      


      Sincerely,

       

      Tatum, LLC

       

      /s/  Mark Neilson

      Mark Neilson

       

      Managing Partner - San Diego

       

      Accepted and Agreed:

       

      Envision Solar International, Inc.

       

      By:  Robert Noble         

      Name:  Robert Noble        

      Title:  CEO              

      Date:  9/1/09             

       

      


      


      


      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      

      Schedule
to Interim Services Agreement

       

      This Schedule is entered into in
connection with that certain Interim Services
Agreement. dated

      September
1, 2009 (the "Agreement"), by and between Tatum, LLC ("Tatum," "we," "us" or
"our") and Envision Solar International. Inc. ("Company." "you" or "your") and
will be governed by the terms and conditions of the Agreement.

       

      Tatum
Resource Name: Howard Smith

       

      Position:
Part-time: Chief Financial
Officer & Executive
Vice President
Company
Supervisor: Robert
Noble, CEO

       

      Start
Date: September 2, 2009

       

      End Date:
Estimated to be December 31, 2009 but may be modified as mutually
agreed.

       

      Replacement:
If you
are dissatisfied with the
Services provided by the Tatum Resource(s). we will immediately remove the Tatum Resource(s) and
endeavor to furnish a replacement as soon as reasonably practical. We do not guarantee that we
will be able to find a suitable replacement.

       

      Termination:
Either party may terminate
this Schedule at any time for any reason upon notice to the other
party; provided,
however. the parties will endeavor to provide as much
notice as possible prior to
termination. preferably
two weeks.

       

      Fees: You will pay Tatum
520,000 per month for the Tatum
Resource. prorated for billing periods less than one month. Tatum Resource will work from the Company's
offices for at least three days per week and be accessible remotely for the
balance of each week by phone and email.

       

      Payroll
taxes and employee benefits: You will
not be responsible for
payroll
taxes or employee benefits since
the Tatum Resource will
not be an
employee of the
Company.

       

      Expenses: You will directly reimburse Tatum
Resource
for reasonable and
customary business expenses,
including
parking related expenses, as submitted
and pi e-approved
by you.

       

      Billings:
Tatum will bill monthly for Services in arrears of the provision of such
Services as follows payable
within 30 days of invoice date:

       

      · 25% of
fees billed will be payable in cash;

       

      · 75% of
fees billed will be payable in qualified employee stock
options;

       

      
        	
                  °    

              	
                a Share calculation: Amount
      of fees
      deferred divided by Fair Market Value per share, at
      the
      time of services
      equals the
      number of shares.
      Option calculation: Number of shares calculated above
      times two
      equals
      the
      number of stock
      options to be issued with a Fair Market Value
      above strike price.

              


      

       

      · Within 15 days of execution of
agreement:
$2,500 (applied of cash
portion
of fees)

      


      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      

       

      Permanent Engagement: You will
have the opportunity to make the Tatum Resource a permanent,
full-time member of the Company at any time during the term of
this Schedule by entering into another form of Tatum agreement, the terms of
which will be negotiated at such time.

       

      In the
event of a conflict between the terms and conditions of this Schedule and the
Agreement, the terms and conditions of the Agreement will control.

       

       

       

       

      
        
          	
                  Tatum,
      LLC

                	 
      	
                  Envision
      Solar International, Inc.

                
	 
      	 
      	 
      
	
                  By:  /s/  Mark
      C. Neilson

                	 
      	
                  /s/  Robert
      Noble

                
	
                  Name:  Mark
      C. Neilson

                	 
      	
                  Name:  Robert
      Noble

                
	
                  Title:  managing
      Partner-San Diego

                	 
      	
                  CEO

                
	
                  Date:
      9-1-09

                	 
      	
                  Date:
      9-1-09