USING SUCH
MEANS OF DELIVERY SHALL CAUSE FOUR (4) ADDITIONAL ORIGINAL EXECUTED SIGNATURE
PAGES TO BE PHYSICALLY DELIVERED TO THE OTHER PARTY WITHIN FIVE (5) DAYS OF THE
EXECUTION AND DELIVERY HEREOF.
(C)
HEADINGS.
THE HEADINGS OF THIS AGREEMENT
ARE FOR CONVENIENCE OF REFERENCE AND SHALL NOT FORM PART OF, OR AFFECT THE
INTERPRETATION OF, THIS AGREEMENT.
(D)
SEVERABILITY.
IF ANY PROVISION OF THIS
AGREEMENT SHALL BE INVALID OR UNENFORCEABLE IN ANY JURISDICTION, SUCH INVALIDITY
OR UNENFORCEABILITY SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF THE
REMAINDER OF THIS AGREEMENT IN THAT JURISDICTION OR THE VALIDITY OR
ENFORCEABILITY OF ANY PROVISION OF THIS AGREEMENT IN ANY OTHER JURISDICTION.
(E)
ENTIRE AGREEMENT, AMENDMENTS.
THIS
AGREEMENT SUPERSEDES ALL OTHER PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN THE
HOLDER, THE COMPANY, THEIR AFFILIATES AND PERSONS ACTING ON THEIR BEHALF WITH
RESPECT TO THE MATTERS DISCUSSED HEREIN, AND THIS AGREEMENT AND THE INSTRUMENTS
REFERENCED HEREIN CONTAIN THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT
TO THE MATTERS COVERED HEREIN AND THEREIN AND, EXCEPT AS SPECIFICALLY SET FORTH
HEREIN OR THEREIN, NEITHER THE COMPANY NOR THE HOLDER MAKES ANY REPRESENTATION,
WARRANTY, COVENANT OR UNDERTAKING WITH RESPECT TO SUCH MATTERS.
NO PROVISION OF
THIS AGREEMENT MAY BE WAIVED OR AMENDED OTHER THAN BY AN INSTRUMENT IN WRITING
SIGNED BY THE PARTY TO BE CHARGED WITH ENFORCEMENT.
(F)
NOTICES.
ANY NOTICES, CONSENTS, WAIVERS,
OR OTHER COMMUNICATIONS REQUIRED OR PERMITTED TO BE GIVEN UNDER THE TERMS OF
THIS AGREEMENT MUST BE IN WRITING AND WILL BE DEEMED TO HAVE BEEN DELIVERED (I)
UPON RECEIPT, WHEN DELIVERED PERSONALLY; (II) UPON CONFIRMATION OF RECEIPT, WHEN
SENT BY FACSIMILE; (III) THREE (3) DAYS AFTER BEING SENT BY U.S. CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, OR (IV) ONE (1) DAY AFTER DEPOSIT WITH A NATIONALLY
RECOGNIZED OVERNIGHT DELIVERY SERVICE, IN EACH CASE PROPERLY ADDRESSED TO THE
PARTY TO RECEIVE THE SAME.
THE ADDRESSES AND FACSIMILE NUMBERS FOR SUCH
COMMUNICATIONS SHALL BE:
If to the Company:
Open Energy Corporation
514 Via de la Valle, Suite 200
Solana Beach, CA 92075
Attention: David Saltman, Chief Executive Officer
Telephone:
858-794-8800
Facsimile:
858-794-8811
With a copy to:
John Hart, Esq.
Open Energy Corporation
514 Via de la Valle, Suite 200
Solana Beach, CA 92075
Telephone:
858-794-8800
Facsimile:
858-794-8811
If to the Holder:
John M. Fife
303 East Wacker Drive, Suite 311
Chicago, IL 60657
Telephone:
312-565-1569
Facsimile:
312-819-9701
With a copy to:
Merrill E. Weber, Esq.
303 East Wacker Drive, Suite 311
Chicago, IL 60657
Telephone:
773-406-2386
Facsimile:
312-819-9701
Each party shall provide five (5) days' prior written notice to the other party
of any change in address or facsimile number.
(G)
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS.
THE COMPANY SHALL NOT ASSIGN THIS AGREEMENT
OR ANY RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE
OTHER PARTY HERETO.
(H)
NO THIRD PARTY BENEFICIARIES.
THIS
AGREEMENT IS INTENDED FOR THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE