Investor Confidentiality Agreement
This agreement (“Agreement”) by and between Envision Solar International, Inc., a Nevada Corporation (“Envision”) and above digitally signed individual (“Recipient”) is entered into on today’s date. Envision and Recipient are collectively referred to herein as the “Parties,” and individually, a “Party.” This Agreement confirms Envision’s understanding with respect to Recipient’s request for non-public information, which may include but is not limited to, unaudited financial information and projections (“Information”) that contains information not yet filed with the Securities and Exchange Commission. Envision is furnishing Recipient and possibly certain of its authorized agents, representatives, and employees (including attorneys, accountants, and financial advisors) (all of Recipient’s authorized agents, representatives, and employees are collectively referred to herein as the “Representatives”) the above-referenced financial information to assist Recipient in its consideration of a proposed financial arrangement with Envision (the “Transaction”). As a condition to Recipient being furnished with the Information, Recipient agrees to treat the Information (whether prepared by or on behalf of Envision) in the manner set forth in this Agreement.
In consideration of furnishing Recipient with the Information, Recipient agrees as follows:
- 1. Maintenance of Confidentiality. Recipient agrees to keep the Information confidential and to not, without Envision’s prior written consent, disclose, or allow any of its Representatives who receive Information from Recipient to disclose the Information in any manner whatsoever, in whole or in part. Recipient agrees to inform such Representatives of the confidential nature of the Information, and each of such Representatives shall agree to act in accordance with the terms and conditions of this Agreement. Recipient shall be responsible for any breach of this Agreement by any of its Representatives.
- 2. Non-Disclosure of Transaction. Without the prior written consent of Envision, Recipient agrees not to, and agrees to cause its Representatives who receive Information from Recipient not to disclose to any individual or entity the fact that the Information has been made available to Recipient, the fact that discussions or negotiations are taking place or have taken place concerning the Transaction, or any of the terms, conditions, or other facts with respect to the Transaction.
- 3. No Representations or Warranties. Although Envision has endeavored to include in the Information materials that it believes to be relevant for the purpose of Recipient’s investigation, Recipient acknowledges and agrees that: (a) neither Envision nor any of its directors, officers, stockholders, partners, affiliates, employees, or agents have made or herein makes any express or implied representation or warranty as to the accuracy or completeness of the Information and (b) none thereof shall have any liability resulting from the use of the Information, errors therein, or omissions therefrom. Recipient further acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Information and that Recipient shall be entitled to rely solely on the representations and warranties made to Recipient by Envision in any definitive agreement regarding the Transaction.
- 4. Return of Information. All copies of the Information, including documents prepared by Recipient or its Representatives that contain analyses, compilations, forecasts, or studies regarding the Information, shall immediately, upon written request by Envision be either (a) returned to Envision or (b) destroyed in its entirety, and a senior officer of Recipient shall certify such destruction in writing. Any such documents prepared by Recipient or its Representatives shall be kept confidential and subject to the terms of this Agreement. Any related oral information shall continue to be kept confidential and subject to the terms of this Agreement.
- 5. Mandatory Disclosure. If Recipient or any Representatives to which it transmits the Information pursuant to this Agreement becomes legally compelled to disclose any of the Information, Recipient shall provide Envision with reasonable notice prior to disclosure so that Envision may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, or if Envision waives compliance with the provisions of this Agreement in writing, Recipient will furnish only that portion of the Information that it is advised by opinion of counsel that is legally required to be so disclosed and Recipient shall exercise best efforts to obtain reasonable assurances that confidential treatment will be accorded to the Information.
- 6. Securities Laws Restrictions. Recipient is aware, and Recipient will advise its Representatives, that United States securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
- 7. Exclusions from Definition. The term “Information” shall not include the portions of Information that: (a) are or become generally available to the public, other than as a result of a disclosure by Recipient or any of its Representatives in violation of this Agreement; (b) become available to Recipient or any of its Representatives on a non-confidential basis from a source that is not prohibited from disclosing such Information to Recipient or its Representatives by legal, contractual, or fiduciary obligations to Envision; or (c) is in Recipient’s possession prior to being furnished to Recipient by Envision, provided that the source of such Information was not prohibited from disclosing the Information to Recipient by legal, contractual, or fiduciary obligations to Envision.
- 8. Envision’s Right to Terminate Access. Envision may terminate access for Recipient or its Representatives to the Information at any time.
- 9. Specific Performance; Attorneys’ Fees. Each Party agrees that money damages would not be a sufficient remedy for any breach of this Agreement by Recipient or any of its Representatives, and that Envision will be entitled to seek injunctive relief, specific performance, and/or other appropriate equitable remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for breach of this Agreement by Recipient, but shall be in addition to all of the remedies under law and in equity. In addition, Envision shall be entitled to payment of Envision’s reasonable legal fees and disbursements, court costs, and other expenses of protecting its interests hereunder.
- 10. Miscellaneous.
- a. Governing Law And Venue. This Agreement shall be governed and construed in accordance with the internal laws of the State of California, without regard to conflict of law principles. With respect to any litigation arising out of or relating to this Agreement, each Party agrees that it will be filed in and heard by the state or federal courts with jurisdiction to hear such suits located in San Diego County, California.
- b. No Waiver. No failure or delay by Envision in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise of any such right, power, or privilege.
- c. Amendment. No amendment or modification of this Agreement shall be effective unless set forth in a written instrument executed by the Parties hereto.
- d. Successors and Assigns; Assignment. This Agreement shall be binding on and inure to the benefit of each Party’s successors and assigns, but may not be assigned without the prior written consent of the other Party.
- e. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which when taken together shall be considered one and the same instrument.
- f. Term. The term of this Agreement shall commence on the date hereof and terminate on the earlier to occur of (i) the date that all Information provided by Envision hereunder is no longer deemed to be Information pursuant to Section 8, and (ii) the third anniversary of the date hereof (“Termination Date”), and all obligations hereunder shall terminate on the Termination Date.
- g. Entire Agreement. This Agreement constitutes the entire agreement with respect to the Information and supersedes all prior or contemporaneous oral or written agreements concerning the Information.
IN WITNESS WHEREOF, the Parties have digitally executed this Agreement, which shall be effective as of and on the date set forth in the first paragraph above.