f8k0210ex10iii_envision.htm


    Exhibit 10.3

     

    ASSET
PURCHASE AGREEMENT

    


    


    This
ASSET PURCHASE AGREEMENT ("Agreement") is made effective the ________day
of
January 2008 ("Effective Date"), between Envision Solar International, Inc., a
California corporation ("Buyer"), and Generating Assets, LLC, a Delaware limited
liability company ("Seller"). Karen Morgan, an individual ("Morgan"), is a party
hereto for the limited purposes of Sections 11.2 and 13.

     

    RECITALS

     

    A.           Seller
operates a business engaged in providing solar financing and development
(the
"Business").

     

    B.           Seller
wishes to sell to Buyer and Buyer wishes to purchase from Seller, on the
terms and
conditions of this Agreement, substantially all of the assets of Seller and the
Business.

     

    C.           All
terms used in this Agreement with initial upper-case letters which are not
defined
within the text of the Agreement itself are defined in Section
14.1.

     

    NOW,
THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties contained in this Agreement, the parties agree
as follows:

     

    AGREEMENT

     

    1. Purchase
and Sale. Subject
to the terms and conditions set forth in this Agreement, Seller hereby sells,
conveys, transfers, assigns and delivers to Buyer, and Buyer purchases from
Seller, all of Seller's right, title, benefits and interest in all rights and
assets used in the operation of the Business including, without limitation, the
rights and assets described in Exhibit A
(collectively, the "Assets"), free and clear of all Liens.

     

    2. Non-assumption
of Liabilities.
Except as provided in Section 2.1, Buyer shall not (i) assume and/or take
the Assets subject to any existing liabilities, accounts payable or other
contracts or obligations; or (ii) be liable in any manner or way for any of the
liabilities, accounts payable, contracts, obligations, claims or demands of or
against Seller arising from Seller's ownership of the Assets or operation of the
Business. Seller shall indemnify, defend and hold Buyer harmless from and
against any of the foregoing.

     

    2.1     Assumed
Liabilities.
Notwithstanding Section 2, Buyer shall assume and be responsible for the
satisfaction of the following obligations and liabilities of
Seller:

    


    2.1.1   All obligations of
Seller under the Assigned Contracts.

     

    2.1.2   All obligations
pursuant to an Engagement Letter with Squire, Sanders
& Dempsey, L.L.P. ("SSD") dated December 4, 2007 attached as Exhibit C (the
"SSD Agreement").

     

    
      
        
        

      

      
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    2.1.3   The payment
obligations referenced in a letter from Morgan to MacKenzie Communications, Inc.
("MacKenzie") dated December 17, 2007, attached as Exhibit D (the
"MacKenzie Agreement").

     

    3.Consideration. The consideration payable
for the Assets ("Purchase

     

    Consideration")
is comprised of the following, which shall be provided at the Closing to
certain

     

    third
parties as specified below:

     

    3.1   The assumption and
performance of the obligations specified in the SSD Agreement.

     

    3.2   The
assumption and performance of the obligations specified in the MacKenzie
Agreement.

     

    3.3   10,000
shares of common stock of Envision ("Envision Shares") issued to the persons
specified in Exhibit
B, subject to their execution of the Investor Acknowledgement
("Acknowledgement") substantially in the form attached as Exhibit E, to be more
specifically allocated as specified in Exhibit
B.

     

    3.4   139,160
Envision Options at an exercise price of $10 per share with a 10-year term, and
29,820, Envision Options at an exercise price of $20 per share with a 2-year
term, issued to the persons specified in Exhibit B, pursuant
to the terms of an Option Agreement substantially in the form attached as Exhibit F, to be more
specifically allocated as specified in Exhibit
B.

     

    3.5           Immediately
available funds of $9,000 to Morgan.

     

    3.6           The
performance of the obligations specified in the Option Agreement attached
as Exhibit G
("Malone Option Agreement").

     

    4.Representations
and Warranties of Seller. As an inducement to Buyer to
enter into this
Agreement, and intending that Buyer shall rely on such representations and
warranties in
connection with the transactions set forth herein, Seller represents and
warrants to Buyer that the
following matters in this Article 4 are true and
accurate.

     

    4.1   Power and
Authority. Seller
has full power and authority and contractual right and authority to enter into
this Agreement and to sell, convey, assign and transfer the Assets, and has
taken all corporate action necessary to authorize the execution and delivery of
this Agreement, the sale of the Assets in accordance with its terms and the
performance of the obligations of Seller hereunder, except as otherwise provided
for herein. This Agreement has been duly executed by an authorized
representative of Seller, and constitutes the legal, valid and binding
obligation of Seller in accordance with its terms, subject to applicable
bankruptcy, insolvency and other laws affecting the rights of creditors
generally.

     

    4.2   Organization. Seller is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware, and has all necessary powers to carry on the
Business as it is now being conducted.

     

    
      
        
        

      

      
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    4.3   Title to
Assets. Seller
has good and assignable title to and interest in the Assets, and the Assets are
not encumbered by any Lien, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due, which Buyer shall or will succeed to by reason
of its purchase of the Assets. Seller shall transfer and assign all of the
Assets to Buyer, free and clear of all Liens. Seller has not interfered with,
infringed upon, misappropriated or otherwise come into conflict with any rights
of third parties in and to any Asset, and has never received any charge,
complaint, claim or notice alleging any such interference, infringement,
misappropriation or violation.

     

    4.4   Intellectual
Property.

     

    4.4.1   Ownership. Seller owns or has the right
to use pursuant to license, sublicense, agreement, or permission all
Intellectual Property necessary for the operation of the Business as currently
conducted and as proposed to be conducted. Each item of Intellectual Property
owned or used by Seller in the Business immediately prior to the Closing will be
owned or available for use by the Buyer on identical terms and conditions
subsequent to the Closing. Seller has taken all necessary action to maintain and
protect each item of Intellectual Property that Seller owns or
uses.

     

    4.4.2   No
Infringement.
Seller has not interfered with, infringed upon, misappropriated, or
otherwise come into conflict with any Intellectual Property rights of third
parties, and there has never been any charge, complaint, claim, demand, or
notice alleging any such interference, infringement, misappropriation, or
violation (including any claim that Seller must license or refrain from using
any Intellectual Property rights of any third party). To the Knowledge of
Seller, Buyer will not interfere with, infringe upon, misappropriate, or
otherwise come into conflict with, any Intellectual Property rights of third
parties as a result of the continued operation of the Businesses as presently
conducted or proposed to be conducted. To the Knowledge of Seller, no third
party has interfered with, infringed upon, misappropriated, or otherwise come
into conflict with any Intellectual Property rights of Seller.

     

    4.5   Compliance
with Laws. The
Business had complied with, and is not in violation of, any applicable federal,
state or local statutes, laws or regulations.

     

    4.6   No
Illegal Payments.
Neither Seller nor any manager, director, officer, employee or agent of
Seller, has (a) directly or indirectly given or agreed to give airy illegal
gift, contribution, payment or similar benefit to any supplier, customer,
governmental official or employee or other person who was, is or may be in a
position to help or hinder Seller (or assist in connection with any actual or
proposed transaction) or made or agreed to make any illegal contribution, or
reimbursed any illegal political gift or contribution made by any other person,
to any candidate for federal, state, local or foreign public office which might
subject Seller to any damage or penalty in any civil, criminal or governmental
litigation or proceeding, or (b) established or maintained any unrecorded fund
or asset or made any false entries on any books or records for any
purpose.

     

    4.7   Permits
and Licenses.
Seller has all permits and licenses, if any, required for the conduct of
the Business. Each such permit and license is in full force and effect, and
Seller has not engaged in any activity which would cause or permit revocation or
suspension of any such permit or license, and no action or proceeding looking to
or contemplating the revocation or suspension of any such permit or license is
pending or threatened.

     

    
      
        
        

      

      
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    4.8   Litigation. There is no suit, action,
arbitration, or legal, administrative, or other proceeding, or governmental
investigation pending or, to the Knowledge of Seller, threatened, against or
affecting the Business or Assets. Seller is not in default in relation to the
Business or Assets with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department, agency, or
instrumentality.

     

    4.9   No
Default. The
consummation of the transaction contemplated by this Agreement will not result
in or constitute any of the following: (i) a default or an event that, with
notice or lapse of time or both, would be a default, breach, or violation of any
lease, license, promissory note, conditional sales contract, commitment,
indenture, mortgage, deed of trust, or other agreement, instrument, or
arrangement to which Seller is a party which would prohibit, interfere, or
otherwise restrict or encumber the free, unrestricted and unabated transfer of
the Assets; or (li) the creation or imposition of any Lien on any of the
Assets.

     

    4.10   Governmental
Consent. No
consent, approval or authorization of or designation, declaration or filing with
any governmental authority on the part of:
Seller is required in connection with the valid execution and delivery of this
Agreement, or the consummation of any transaction contemplated
hereby.?:

     

    4.11   Assigned
Contracts.
Complete and accurate copies of all Assigned Contracts have been provided
to Buyer.

     

    4.11.1   Each
Assigned Contract is legal, valid and in full force and effect, enforceable in
accordance with its terms except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws relating to
or affecting creditors generally and by the availability of equitable remedies.
To Seller's Knowledge, no other party to any Assigned Contract has taken the
position that any provision of such contract is unenforceable.

     

    4.11.2   Seller
not breached any Assigned Contract, and, to Seller's Knowledge, no other Person
has breached any Assigned Contract.

     

    4.11.3   To
Seller's Knowledge, no event has occurred, and no circumstance
or condition exists, that (with or without notice or lapse of time) will, or
could reasonably be expected to, (A) result in a breach of any of the provisions
of any Assigned Contract, (B) give any Person the right to declare a default or
exercise any remedy under any Assigned Contract, (C) give any Person the right
to accelerate the maturity or performance of any Assigned Contract, or (D) give
any Person the right to cancel, terminate or modify any Assigned
Contract.

     

    4.11.4   Seller
has not received any notice or other communication regarding any actual or
possible breach of any Assigned Contract that has not been resolved. Seller has
not received notice of termination or cancellation of or intent to cancel or
terminate any Assigned Contract.

     

    
      
        
        

      

      
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    4.11.5   Seller has not
waived any of its rights under any Assigned Contract.

     

    4.11.6   No Person
is renegotiating, or has a right pursuant to the terms of any Assigned Contract
to renegotiate any amount paid or payable to Seller under any Assigned Contract
or any other material term or provision of any Assigned Contract.

     

    4.11.7   Each
Assigned Contract will continue to be enforceable, and in full force and effect
on identical terms immediately following the consummation of the Transactions,
and the consummation of the transactions shall not (either alone or upon the
occurrence of additional acts or events) result in any payment or payments
becoming due from Seller to any Person or give any Person the right to terminate
or alter the provisions of such Assigned Contract. The consummation of the
transactions contemplated by this Agreement will not affect any of the Assigned
Contracts in a manner that could reasonably be expected to be materially adverse
to Buyer.

    


    4.12           Negotiation
Rights. With
respect to the Negotiation Rights specified on Exhibit
A:

     

    (a) Seller is
currently actively negotiating a final, complete and legally binding agreement
with the designated party;

     

    (b) Seller
has not received any indication and has no reason to believe that the designated
party is unwilling to enter into a final agreement with Seller; and

     

    (c) Seller
has provided to Buyer all. documents relating to the negotiations, including all
correspondence, copies of emails, term sheets, letters of intent, letter
agreements, and proposals.

     

    4.13   Performance
of Obligations.
With respect to the Business, Seller has performed all material
obligations required to be performed by it to date, and is not in default under
any material contract, agreement, lease, commitment, indenture, mortgage, deed
of trust, or other document to which it is a party.

     

    4.14   Completeness
of Representations.
None of the representations and warranties made by Seller in this Agreement contains or will
contain any untrue statement of a material fact, or omit any material fact, the
omission of which would
be misleading.

     

    4.15   Survival
of Representations.
All representations and warranties of Seller, whether oral or written,
including any representations and warranties in any written statements or
documents delivered or made available to Buyer by Seller, shall survive the
closing of the transactions contemplated by this Agreement.

     

    5. Representations
and Warranties of Buyer.
Buyer represents and warrants to Seller as follows:

     

    
      
        
        

      

      
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    5.1      Power and
Authority. Buyer
has full corporate power and authority and contractual right and authority to
enter into this Agreement and to purchase the Assets, and has taken all
corporate action necessary to authorize the execution and delivery of this
Agreement, the purchase of the Assets in accordance with its terms, and the
performance of the obligations of Buyer hereunder. This Agreement has been duly
executed by an authorized officer of Buyer, and constitutes the legal, valid and
binding obligation of Buyer in accordance with its terms, subject to applicable
bankruptcy, insolvency and other laws affecting the rights of creditors
generally.

     

    5.2     
Completeness
of Representations.
None of the representations and warranties made by Buyer in this
Agreement contains or will contain any untrue statement of a material fact, or
omit any material fact, the omission of which would be misleading.

     

    5.3     
Survival
of Representations.
All representations and warranties of Buyer, whether oral or written,
including any representations and warranties in any written statements or
documents delivered or made available to Seller by Buyer, shall survive the
closing of the transactions contemplated by this Agreement.

    


     

    6. Employees
and Compensation.
Buyer shall have the right, but not the obligation, to employ any or all
of the employees of Seller. Should Buyer employ any of those employees, such
employment shall be on such terms as Buyer may establish. All employees shall be
paid in full through the Effective Date by Seller, including all amounts for
accrued vacation and all other benefits. Seller shall take no action to impede
or interfere withjany efforts by Buyer to employ current employees of Seller.
Seller and Morgan hereby indemnify and hold Buyer harmless from and against any
and all loss or liability in any way connected with (i) amounts due and owing to
Seller's employees as of the Effective Date, whether such amounts be for
compensation or otherwise; and (ii) any past or current unfair labor practices
of Seller as of the Effective Date.

     

    7. Deliveries
by Seller. Upon
the complete execution of this Agreement, Seller shall deliver to
Buyer:

     

    
      	(i)	 	
              An
      executed Assignment of Agreements in the form attached as Exhibit
      H;

               

            
	(ii)	 	
              the
      Investor Acknowledgement in the form of Exhibit D
      executed by each person
      listed in Exhibit
      B;

               

            
	(iii)	 	
              the
      Option Agreement in the form of Exhibit E
      executed by each person listed
      in Exhibit
      B;

               

            
	(iv)	 	
              the
      Malone Option Agreement in the form of Exhibit G
      executed by Charlene
      Malone ("Malone"); and

               

            
	(v)	 	such
      other items required to be delivered by Seller under this
      Agreement.


    

     

    
      
        
        

      

      
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    8.Deliveries
by Buyer. Upon
the complete execution of this Agreement, Buyer shall
deliver to Seller or the party specified:

    
    

     

    
      	(i)	 	
              to
      SSD, the Warrant to Purchase Common Stock in the form included in
      Exhibit C,
      executed by Buyer;

               

            
	(ii)	 	
              the
      Envision Shares to the persons specified in Exhibit B as
      receiving Envision
      Shares;

               

            
	(iii)	 	
              the
      Option Agreements in the form of Exhibit E
      executed by Buyer, to the persons
      specified in Exhibit
      B;

               

            
	(iv)	 	
              the
      Purchase Consideration specified in Section 3.5 to Morgan; and 

               

            
	(v)	 	the
      Malone Option Agreement executed by Buyer to
  Malone.


    

     

    9. Costs and
Expenses. Each
party shall pay its own costs and expenses incurred by such party in connection
with this Agreement and consummating the transactions described
herein.

     

    10.
Indemnity.

     

    10.1   Seller's
Indemnity. Seller
shall indemnify, defend, and hold harmless Buyer, and its successors,
Affiliates, assigns, officers, directors, employees, attorneys and agents,
against and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and deficiencies, that they or
any of them shall incur ;or
suffer, which arise, result from, or relate to (i) the use of the Assets or
Business operations prior to the Effective Date or (ii) any breach of, or
failure by Seller to perform any of its representations, warranties, covenants,
or agreements contained in this Agreement.

     

    10.2   Buyer's
Indemnity. Buyer
shall indemnify, defend and hold harmless Seller and its Affiliates, assigns,
officers, directors, members, managers, employees, attorneys and agents against,
and in respect of, any and all claims, losses, expenses, costs, obligations and
liabilities that Seller may incur or suffer by reason of (i) Buyer's operation
of the Business following the Effective Date, or (ii) Buyer's breach of or
failure to perform any of the warranties, guarantees, commitments or covenants
contained in this Agreement.

    


     

    11. Seller's
Obligations.

     

    11.1   Change of
Name. Seller
shall not use or employ in any manner the name "Generating Assets, LLC" or any
derivative thereof or name similar thereto, and Seller shall take and cause to
be taken all necessary action to cease the public use of such name. Seller shall
deliver to Buyer such executed documents as may be required to change Seller's
name on that date to another name bearing no similarity to "Generating Assets,
LLC" including but not limited to a name change amendment suitable for filing
with the Delaware Secretary of State. Seller hereby appoints Buyer as its
attorney-in-fact to file all such documents.

     

    
      
        
        

      

      
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    11.2   Covenant
Not to Compete.
Seller and Morgan agree that for a period of five years after the
Effective Date, neither they nor any of their Affiliates shall, directly or
indirectly, (1) own, manage, operate, join, control or participate in the
ownership, management, operation or control of; (2) be employed by; (3) provide
consulting, research and development or other services to; or (4) sell products
to any business, which engages in the development, marketing or sale of products
or services which are competitive with or similar to the Business. In the event
that the provisions of this section are found to exceed the limitation provided
by applicable law, then such provisions shall be reformed to set forth the
maximum limitations permitted. The covenants contained in this section are
intended to be an agreement authorized by Section 16601 of the California
Business and Professions Code. The competition restrictions contained in this
section shall not be deemed or construed to modify, restrict or eliminate any
competition restrictions contained in any other agreement between Buyer or any
Affiliate and Seller, Morgan, or any of their Affiliates. Seller and Morgan
expressly acknowledge that the remedy at law for any breach of the covenants set
forth in this section will be inadequate, and that upon any such breach, or
threatened breach, Buyer shall be entitled as a matter of right to injunctive
relief in any court of competent jurisdiction, in equity or otherwise, and to
enforce the specific performance of the obligations of Seller and Morgan under
this section without the necessity of proving the actual damage to Buyer or the
inadequacy of a legal remedy. The rights conferred upon Buyer by the preceding
sentence shall not be exclusive of, but shall be in addition to, any other
rights or remedies which Buyer may have at law, in equity or
otherwise.

     

    11.3   Assistance
Regarding Negotiations.
Seller shall assist Buyer in its continuation and conclusion of
negotiations with the designated parties with respect to the Negotiation Rights
conveyed by this Agreement. More specifically, Seller shall-facilitate
introductions and meetings between Buyer and such designated parties, shall
recommend to the designated parties that they negotiate final agreements with
Buyer, and shall otherwise support-Buyer in efforts to successfully conclude
such negotiations.

     

    12. Broker's
Fees. Each of the
parties represents that they have dealt with no broker or finder in connection
with any of the transactions contemplated by this Agreement, and, insofar as
they know, no broker or other person is entitled to any commission or finder's
fees in connection with any of these transactions. Seller and Buyer each agree
to indemnify and hold harmless one another against any loss, liability, damage,
cost, claim, or expense incurred by reason of any brokerage, commission, or
finder's fee alleged to be payable because of any act, omission, or statement of
the indemnifying party.

     

    13. Confidential
Information, hi
connection with the ownership and operation of the Business, Seller and Morgan
obtained confidential information relating to the Assets and Assigned Contracts.
Seller and Morgan shall treat such information as confidential, preserve the
confidentiality thereof, not duplicate or use such information and instruct its
employees and all other parties who have had access to such information to keep
confidential and not use such information in a way which is detrimental to Buyer
in its exercise of its rights and enjoyments of the benefits under the Assigned
Contracts. Seller agrees that the foregoing confidentiality covenants are
material terms of this Agreement and a condition concurrent to Buyer's
obligations under this Agreement.

     

    14. Miscellaneous.

     

    14.1   Defined
Terms. For the
purposes of this Agreement, the following words and expressions shall have the
following meanings:

     

    
      
        
        

      

      
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    14.1.1   "Affiliate" means any individual,
partnership, corporation, trust or other entity or association, directly or
indirectly, through one or more intermediaries, controlling, controlled by, or
under common control with the relevant Person. The term "control," as used in
the immediately preceding sentence, means, with respect to a corporation or
limited liability company the right to exercise, directly or indirectly, more
than fifty percent (50%) of the voting rights attributable to the controlled
corporation or limited liability company, and, with respect to any individual,
partnership, trust, other entity or association, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of the controlled entity.

     

    14.1.2   "Assigned
Contracts" means
the agreements listed in Section (e) of
Exhibit A.

     

    14.1.3   "Intellectual
Property" means
any patents, patent applications, trademarks, tradenames, service marks,
copyrights, and any applications therefore, technology, know-how, trade secrets,
inventory, ideas, algorithms, processes, computer software programs or
applications, and tangible or intangible proprietary information.

     

    14.1.4   "Governmental
Authority" means
any government or political subdivision or regulatory authority, whether
federal, state, local or foreign, or any agency or instrumentality of any such
government or political subdivision or regulatory authofity, or any federal
state, local or foreign court or arbitrator.

     

    14.1.5   "Knowledge
of Seller" or
"Seller's
Knowledge" means
the knowledge of the managers, members and employees of Seller, including
Morgan, who would reasonably be,expected to have such knowledge after
due.inquiry, or that such Persons should have known based upon the facts
available at the time of determination.

     

    14.1.6   "Lien" means any
security deed, mortgage, deed to secure debt, deed of trust, lien, pledge,
assignment, charge, security interest, title retention agreement, negative
pledge, levy, execution, seizure, attachment, garnishment or other encumbrance
of any land in respect of such property, whether or not choate, vested or
perfected.

     

    14.1.7   "Person" means an individual, general
partnership, limited partnership, limited liability company, corporation, trust,
estate, real estate investment trust association or any other
entity.

    


     

    14.2   Successors
and Assigns.
Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto.

     

    14.3   Modification. This Agreement may be
modified or rescinded only by a writing signed by all parties to this Agreement
or by their duly authorized agents.

     

    14.4   Assignment. This Agreement shall not be
assignable, in whole or in part, by either party without the written consent of
the other party, except that (1) Buyer may, without the consent of Seller,
assign its rights and obligations under this Agreement to an Affiliate, provided
that Buyer obtains the Affiliate's written agreement enforceable by Seller to
assume and
perform, from and after the date of such assignment, the terms, conditions, and
provisions imposed by this Agreement upon Buyer, whereupon Buyer shall be
relieved of any future liability under this Agreement; and (2) Seller may,
without the consent of Buyer, assign the benefits of this Agreement, including
its right to payments, but not its obligations.

     

    
      
        
        

      

      
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    14.5   Further
Conveyances. On
and after the Effective Date, and without further consideration or expense to
Buyer, Seller shall execute and deliver such further documents of conveyance and
transfer, and take such other action as Buyer reasonably requests to effectively
convey and transfer to Buyer any of the Assets in accordance with this
Agreement, and will assist Buyer in the exercise of its rights as assignee under
the Assigned Contracts. Seller also shall deliver or cause to be delivered, at
such times and places as reasonably requested by Buyer, such additional
documents as Buyer may reasonably request for the purposes of carrying out this
Agreement.

     

    14.6   No
Waiver. No waiver
of any right under this Agreement shall be deemed effective unless in writing
and signed by the party charged with such waiver, and no waiver of any right
arising from any breach or failure to perform shall be deemed to be a waiver of
any future such right or of any other right arising under this
Agreement.

     

    14.7   Entire
Agreement. This
Agreement constitutes the entire agreement between the parties and supersedes
all prior ■agreements, and understandings, oral and written, between the parties
hereto with respect to the subject matter hereof.

     

    14.8   Exhibits. All attached exhibits and
schedules to which reference is made herein
are hereby-incorporated by this reference.

     

    14.9   Headings;
Construction; Interpretation. Section headings contained
in tins Agreement are included for convenience only and form no part of the
agreement between the parties. When the context so requires and when used in
this Agreement, the singular shall be deemed to include the plural and the
plural shall be deemed to include the singular. This Agreement shall not be
interpreted against a party by virtue of such party's participation in the
drafting of the Agreement or any provisions herein.

     

    14.10   Separability. If any provision of this
Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in
any jurisdiction, such provision shall be deemed amended to conform to
applicable laws so as to be valid and enforceable or, if it cannot be so amended
without materially altering the intention of the parties, it shall be stricken
and the remainder of this Agreement shall remain in full force and
effect.

     

    14.11   Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be an original and
all of which together shall constitute but one and the same
document.

     

    14.12   Time of
the Essence. Time
shall be of the essence for all purposes under this Agreement.

    


    14.13   Survival
of Representations, Warranties and Agreement.    The
representations,
warranties, obligations, covenants and agreements of the parties hereto shall in
allevents
survive the close or termination of this Agreement where same is necessary to
effectuate
the intention of the
parties.                                                                                              .
..

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    14.14   Binding
Effect. This
Agreement shall be binding upon and mure to the benefit of Seller and Buyer and
their respective representatives and assigns.

     

    14.15   Notices. Any notice required or
authorized to be given hereunder or any other communications between the parties
provided for under the terms of this Agreement shall be in writing (unless
otherwise provided) and shall, be served personally, or by reputable express
courier sendee or by facsimile transmission addressed to the relevant party at
the address stated below or at any other address provided by that party to the
other as its address for service. Any notice so given personally shall be deemed
to have been served on delivery, any notice so given by express courier service
shall be deemed to have been served two (2) business days after the same shall
have been delivered to the relevant courier, and any notice so given by
facsimile transmission shall be deemed to have been received on dispatch. .In
proving such sendee, it shall be sufficient to produce the receipt of a
reputable courier company showing the correct address of the addressee or prove
that the facsimile transmission was followed by an activity report showing the
correct facsimile number of the party on whom notice is served and. the correct
number of pages transmitted

     

    
      	 	If to. Seller,
      to:	
              Karen
      Morgan

              16
      Baywater Drive

              Danen, CT
      06820

              Fax:
      (203). 656-4375

            
	 	 	 
	 	If to Morgan,
      to:    	
              Karen
      Morga

              16
      Baywater Drive

              Danen,
      CT 06820

              Fax:
      (203) 656-4375

            
	 	 	 
	 	If to Buyer,
      to:    	
              Envision
      Solar International, Inc.

              4225
      Executive Square, Suite 480 

              La
      Jolla, CA 92037 

              Attn:
      Robert L. Noble 

              Fax:(619)
      238-1429

            
	 	 	 
	 	With a copy (which
      shall 	 
	 	
              not
      constitute notice) to:   

            	
              John
      C. O'Neill, 

              Esq.Procopio,
      Cory, Hargreaves & Savitch LLP 

              530
      B Street, Suite 2100 

              San
      Diego, CA 92101 

              Fax:
      (619) 744-5464

            
	 	 	 


    

     

    or to
such other address or to such other person as any party shall designate to the
others for such purpose in the manner hereinabove set forth.

     

    14.16   Arbitration. Any controversy or claim
arising out of or relating to this Agreement, or the breach thereof, shall be
settled by binding arbitration in San Diego, California, before a single,
neutral arbitrator administered by the American Arbitration Association in
accordance with its Commercial Arbitration Rules, and judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    14.17   Attorneys'
Fees. If any
action or arbitration is commenced to enforce or interpret any provision of this
Agreement, the substantially prevailing party shall be entitled to recover from
the other party actual attorneys' fees and costs incurred in connection with
such action, in addition to all other proper relief. Attorneys' fees incurred in
enforcing any judgment are recoverable as a separate item, and this provision
for post-judgment attorneys' fees shall survive any judgment and shall not be
deemed merged into the judgment.

     

    14.18   Remedies
Cumulative. All
remedies provided in this Agreement are cumulative and non-exclusive, and shall
be in addition to any and all other rights and remedies provided by law or in
equity.

     

    14.19   Governing
Law. This
Agreement shall be governed by and construed under the laws of the State of
California, without regard to the conflict of laws principles thereof, as the
same apply to agreements executed solely by residents of California and wholly
to be performed within California.

     

    14.20   Tax
Consequences.
Seller acknowledges that Buyer makes no representations or warranties,
and has provided no advice to Seller with respect to the tax consequences to
Seller of the transactions contemplated by this Agreement. Seller acknowledges
that it has been advised by Buyer to consult its own tax advisor and legal
counsel with respect to the tax aspects of this Agreement.

     

    ///

    ///

    ///

    ///

    ///

    ///

    ///

    ///

    ///

     

    


    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

     

    
      IN
WITNESS WHEREOF, the
parties
hereto
have executed this Agreement as of the Effective Date.

    

    
 

     

     

    
      
        	 	
                
                  ENVISION
      SOLAR INTERNATIONAL, INC.,

                

              	 
	 	a
      California corporation 	 
	 	 	 	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ 
      Robert L. Noble	 
	 	 	Name Robert
      L. Noble 	 
	 	 	Chief
      Executive Officer 	 
	 	 	 	 
	 	 	 	 
	 	GENERATING
      ASSETS, LLC 	 
	 	a
      Delware Limited liability company 	 
	 	 	 	 
	 	 	 	 
	 	By:
      	/s/  Karen Morgan	 
	 	 	Karen
      Morgan 	 
	 	 	Manager	 
	 	 	 
	 	/s/  Karen Morgan	 
	 	Karen
      Morgan, an individual	 
	 	 	
              	 
	 	 	 	 


      

    

    


     

    EXHIBITS

     

    A -
Assets

    B -
Allocation of Shares and Options

    C - SSD
Agreement

    D -
MacKenzie Agreement

    E - Form
of Investor Acknowledgement

    F -
Option Agreement

    G -
Malone Option Agreement

    H -
Assignment of Agreements

     

     

     

    13