f8k0210ex10xxi_envision.htm


    Exhibit
10.21

     

    THE
SECURITIES REPRESENTED HEREBY, OR INTO WHICH THIS NOTE IS CONVERTIBLE, HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN
OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES
LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING
THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
ANY TRANSFEREE OF THIS
NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE. THE PRINCIPAL AMOUNT
REPRESENTED BY THIS NOTE MAY BE LESS THAN THE AMOUNTS SET FORTH
ON THE FACE HEREOF.

    


    THIS
NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER
AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AGREEMENT
(THE "SUBORDINATION AGREEMENT") DATED AS OF SEPTEMBER 2009 AMONG ENVISION SOLAR
INTERNATIONAL, INC., A CALIFORNIA CORPORATION, ENVISION
SOLAR CONSTRUCTION, INC., A CALIFORNIA CORPORATION, ENVISION SOLAR
RESIDENTIAL, INC., A CALIFORNIA CORPORATION, ENVISION AFRICA, LLC, A DELAWARE
LIMITED LIABILITY COMPANY, JOHN EVEY, AND GEMINI MASTER FUND, LTD.,
A CAYMAN ISLANDS CORPORATION, TO THE SENIOR INDEBTEDNESS (AS DEFINED
IN THE SUBORDINATION AGREEMENT); AND EACH HOLDER OF THIS NOTE, BY
ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION
AGREEMENT.

     

    ENVISION
SOLAR INTERNATIONAL, INC.

    


    AMENDED
AND RESTATED 10% SUBORDINATED CONVERTIBLE PROMISSORY NOTE

    (non-negotiable)

     

    
      	$100,000.00	     December
      17, 2009


    

     

     

    FOR VALUE
RECEIVED Envision Solar International, Inc., a California corporation (the
"Company"),
promises to pay to John Evey (the "Holder"), the
principal amount of One Hundred Two Thousand Two Hundred Thirty Five and Sixty
Two Cents ($102,235.62), or such lesser amount as shall equal the outstanding
principal amount hereof, together with simple interest on the unpaid principal
balance, commencing on October 1, 2009 at a rate equal to ten percent (10%) per
annum, computed on the basis of the actual number of days elapsed and a year of
365 days. All unpaid principal, together with any then accrued but unpaid
interest and any other amounts payable hereunder, unless previously converted
pursuant to Section 4 below, shall be due and payable on December 31, 2010 (the
"Maturity
Date"); provided, however, that in the
event the Company receives more than $1,000,000 from any financing or series of
financings (whether related or unrelated), in the form or debt, equity or any
combination thereof, prior to the Maturity Date, 25% of the proceeds of any such
financing in excess of $1,000,000 shall be used to pay down this Note and all of
the other Notes (as hereinafter defined), pro rata; provided, further, that no
funds provided to the Company by Gemini Master Fund, Ltd. ("Gemini") or any
person or entity that co-invests with Gemini in the Company shall be credited
towards this $1,000,000 threshold. This Note is one of a series of subordinated
notes issued to certain trade creditors of the Company, on the date hereof, in
settlement of the Company's obligations to such creditors (together, the "Notes").

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

    


    The
following is a statement of the rights of the Holder of this Note and the
conditions to which this Note is subject, and to which the Holder, by the
acceptance of this Note, agrees:

    


     

    1.      Event of
Default.

    


     

    (a)     For
purposes of this Note, an "Event of Default"
means:

     

    (i)           the
Company shall default in the payment of interest and/or principal
on this Note; or

     

    (ii)           the
Company shall fail to materially perform any covenant, term,
provision, condition, agreement or obligation of the Company under this Note
(other
than for non-payment) and such failure shall continue uncured for a period of
ten (10)
business days after notice from the Holder of such failure; or

     

    (iii)           the
Company shall (1) become insolvent; (2) admit in writing
its inability to pay its debts generally as they mature; (3) make an assignment
for the
benefit of creditors or commence proceedings for its dissolution; or (4) apply
for or consent
to the appointment of a trustee, liquidator or receiver for it or for a
substantial part of
its property or business; or

     

    (iv)           a
trustee, liquidator or receiver shall be appointed for the Company
or for a substantial part of its property or business without its consent and
shall not be
discharged within thirty (30) days after such appointment; or

     

    (v)           any
governmental agency or any court of competent jurisdiction
at the insistence of any governmental agency shall assume custody or control
of the
whole or any substantial portion of the properties or assets of the Company and
shall not
be dismissed within thirty (30) days thereafter; or

     

    (vi)           the
Company shall sell or otherwise transfer all or substantially
all of its assets; or

     

    (vii)           bankruptcy,
reorganization, insolvency or liquidation proceedings
or other proceedings, or relief under any bankruptcy law or any law for the
relief of
debt shall be instituted by or against the Company and, if instituted against
the Company
shall not be dismissed within thirty (30) days after such institution, or the
Company
shall by any action or answer approve of, consent to, or acquiesce in any such
proceedings
or admit to any material allegations of, or default in answering a petition
filed in
any such proceeding.

     

    (b) Upon
the occurrence of an Event of Default, the entire indebtedness with accrued
interest thereon due under this Note shall, at the option of the Holder, be
immediately due and payable without notice. Failure to exercise such option
shall not constitute a waiver of the right to exercise the same in the event of
any subsequent Event of Default.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    2. Seniority. The
indebtedness evidenced by this Note is hereby expressly subordinated, in right
of payment to the prior payment in full of all of the Company's existing and
future Senior Indebtedness. The Holder shall execute any intercreditor agreement
requested by the Company to give effect to the foregoing seniority.

     

    3. Prepayment. The
Company may, subject to the terms set forth in the Subordination Agreement,
prepay this Note at any time, in whole or in part, provided any such prepayment
will be applied first to the payment of expenses due under this Note, second to
interest accrued on this Note and third, if the amount of prepayment exceeds the
amount of all such expenses and accrued interest, to the payment of principal of
this Note.

     

    4. Conversion. The
Holder may at his option elect to convert all or a portion of the outstanding
principal amount and unpaid accrued interest thereon as of such date into shares
of the Company's common stock (the "Common Stock"), in
accordance with this Section 4 at any time or from time to time (the "Company Conversion
Shares"). The Holder shall notify the Company in writing of the date on
which such conversion is to be effectuated (such date, the "Conversion Date").
The number of shares of Company Conversion Shares (calculated to the nearest
whole share) to which the Holder shall be entitled upon such conversion shall be
determined by dividing the outstanding principal amount and unpaid accrued
interest thereon to be converted by ten dollars ($10.00), as adjusted for any
stock dividend, stock split, stock combination, reclassification or similar
transaction (the "Conversion Price").
On the Conversion Date, the Holder shall surrender this Note to the Company or
its transfer agent, and the Holder shall receive from the Company share
certificates evidencing the Company Conversion Shares in the name or names in
which the Holder wishes such certificate or certificates for the Company
Conversion Shares to be issued and, if the entire principal amount is not
converted, a replacement note in the amount of the unconverted principal
amount.

     

    5. Miscellaneous.

     

    (a)     Loss, Theft, Destruction or
Mutilation of Note. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Note
and, in the case of loss, theft or destruction, delivery of an indemnity
agreement reasonably satisfactory in form and substance to the Company or, in
the case of mutilation, on surrender and cancellation of this Note, the Company
shall execute and deliver, in lieu of this Note, a new note executed in the same
manner as this Note, in the same principal amount as the unpaid principal amount
of this Note and dated the date to which interest shall have been paid on this
Note or, if no interest shall have yet been so paid, dated the date of this
Note.

     

    (b) Payment. All payments
under this Note shall be made in lawful tender of the United
States.

     

    
      
        
        

      

      
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    (c) Waivers. The Company
hereby waives notice of default, presentment or demand for payment, protest or
notice of nonpayment or dishonor and all other notices or demands relative to
this instrument.

     

    (d) Waiver and Amendment.
Any provision of this Note may be amended, waived or modified only by an
instrument in writing signed by the party against which enforcement of the same
is sought

     

    (e) Notices. Any notice
or other communication required or permitted to be given hereunder shall be in
writing sent by mail, facsimile with printed confirmation, nationally recognized
overnight carrier or personal delivery and shall be effective upon actual
receipt of such notice, to the following addresses until notice is received that
any such address or contact information has been changed:

    


     

    To the
Company:

     

    Envision
Solar International, Inc. 

    4225
Executive Square Suite 1000 

    La Jolla,
California 92037 

    Attn:
Chief Executive Officer

     

    To
Holder:

     

    
      Pegasus Enterprises, LP 

      4542 Ruffrer Street, Suite 387 

      San Diego, CA 92111 

      Attn: General Counsel

    

     

    (f) Successors and
Assigns. This Note may not be assigned or transferred by the Holder
without the prior written consent of the Company. Subject to the preceding
sentence, the rights and obligations of the Company and the Holder of this Note
shall be binding upon and benefit the successors, permitted assigns, heirs,
administrators and permitted transferees of the parties.

     

    (g) Governing Law;
Jurisdiction. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO PRINCIPLES
OF CONFLICTS OF LAWS. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE PERSONAL AND SUBJECT MATTER JURISDICTION OF THE SUPREME
COURT OF THE STATE OF NEW YORK LOCATED IN THE BOROUGH OF MANHATTAN OVER ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS NOTE. EACH PARTY HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY LAW, (A) ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT; AND (B)
ANY CLAIM THAT ANY SUCH
SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
FINAL JUDGMENT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT SHALL
BE CONCLUSIVE AND BINDING UPON EACH PARTY DULY
SERVED WITH PROCESS THEREIN AND MAY BE ENFORCED IN THE COURTS OF THE
JURISDICTION OF WHICH EITHER PARTY OR ANY OF THEIR PROPERTY IS SUBJECT, BY A
SUIT UPON SUCH JUDGMENT.

    


    


    [SIGNATURE
PAGE FOLLOWS]

     

     

    
      
        
        

      

      
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    IN
WITNESS WHEREOF, the Company has caused this Note to be executed as of the date
first above written by its duly authorized officer.

    
       

       

      
        
          	 	ENVISION
      SOLAR INTERNATIONAL, INC.	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ 
      Robert Noble	 
	 	 	Name:
      Robert Noble	 
	 	 	Title:
      CEO	 
	 	 	 	 


        

      

       

       

    

    


    


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