EXHIBIT 4.4
FOUNDING STOCKHOLDERS AGREEMENT
This Founding Stockholders Agreement (the "Agreement"), dated as of March 1,
1999, is entered into by and between Clean Energy Technologies, Inc., a Delaware
corporation (the "Company"), BO Tech Burner Systems Ltd., a British Columbia
corporation ("BO Tech"), Xxxx X. Xxxxx, an individual ("Chato"), Xxxx X. Xxxxx,
an individual ("Thuot"), Xxxxx X. XxXxxx, an individual ("XxXxxx"), Xxxxx X.
Xxxxxxx, an individual ("Xxxxxxx"), Xxxxxx Xxxxxxxxx, an individual
("Alexander"), 818879 Alberta, Ltd., an Alberta corporation ("818879 Alberta"),
and Ravenscraig Properties Limited ("Ravenscraig"), with reference to the
following facts:
RECITALS:
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WHEREAS:
A. BO Tech, Chato, Thuot, DeFina, Xxxxxxx, Xxxxxxxxx and Ravenscraig
(collectively, the "Common Stockholders") have collectively subscribed to
purchase nine million six hundred forty three thousand seven hundred fifty
(9,643,750) shares of the Company's Common Stock, par value one mil
($0.001) (the "Common Stock"), for aggregate purchase money consideration
of U.S. $1,000;
B. 000000 Xxxxxxx has subscribed to purchase one thousand (1,000) shares of
the Company's Series "A" Convertible Preferred Stock, par value one mil
($0.001) (the "Series "A" Preferred Stock"), for aggregate purchase money
consideration of U.S. $500;
C. The Company, the Common Stockholders and 000000 Xxxxxxx each desire to
ensure the continuity of the Company's management and ownership by limiting
the control and ownership of the Company to persons reasonably acceptable
to such parties, and
D. The Company, the Common Stockholders and 000000 Xxxxxxx each desire to set
forth certain rights and restrictions of mutual benefit to such parties.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein, and for valuable consideration, the receipt and sufficiency of which are
hereby mutually acknowledged, the parties to this Agreement (collectively
"parties" and individually a "party") agree as follows:
AGREEMENT:
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1. RESTRICTIONS ON SALE OR TRANSFER OF SERIES A PREFERRED STOCK
818879 Alberta agrees that it shall not, without the prior written consent
of the Company, sell or assign the Series "A" Preferred Stock except to its
affiliates (as such term is defined below). In the event of any unpermitted sale
or transfer, the Company shall have the right to convert the Series "A"
Preferred Stock into Common Stock pursuant to the mechanics of Section 5.03B(1)
of Article Fifth of the Company's Certificate of Incorporation as filed on March
1, 1999. The term "affiliate" " for purposes of this section 1 shall mean any
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party controlling, controlled by, or under common control with 818879 Alberta,
or any party related to any such affiliate.
2. CONVERSION OF SERIES A PREFERRED STOCK
818879 Alberta agrees that the Company shall have the right to convert the
Series "A" Preferred Stock into Common Stock pursuant to the mechanics of
Section 5.03B(1) of Article Fifth of the
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Company's Certificate of Incorporation as filed on March 1, 1999 in the event
the aggregate holdings of Ravenscraig or its affiliates (as such term is defined
below) in the Common Stock should, at any time, become less than five percent
(5%) of the total number of shares of Common Stock outstanding (unless such
decrease is attributable to a stock redemption). The term "affiliate" for
purposes of this section 2 shall mean any party controlling, controlled by, or
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under common control with Ravenscraig, or any party related to any such
affiliate.
3. NOMINATION OF SERIES A DIRECTOR BY 8188789 ALBERTA; APPOINTMENT OF BOARD
OBSERVER
In the event 818879 Alberta requests a position on the Board pursuant to
the terms of Section 5.01E of Article Fifth of the Company's Certificate of
Incorporation as filed on March 1, 1999, then 000000 Xxxxxxx shall nominate a
candidate for such position who is reasonably acceptable to the Company, and
shall vote its shares of Series "A" Preferred Stock in favor of the election of
such nominee. Notwithstanding the preceding sentence, 818879 Alberta shall have
the right at all times so long as it or its affiliates hold the Series "A"
Preferred Stock to have an observer attend all meetings of the Board.
4. CONSENT TO DIVIDEND BY 0000000 XXXXXXX
000000 Xxxxxxx agrees that it shall not, in the event the Company's Common
Stock is quoted on the Nasdaq National Market, withhold its consent to a
dividend pursuant Section 5.01C(8) of Article Fifth of the Company's Certificate
of Incorporation as filed on March 1, 1999.
5. OFFERING PARTICIPATION RIGHTS
In the event the Company desires at any time on or before March 30, 2002,
to issue any securities (other than debt securities with no equity feature) in a
private offering, the Company shall offer to each Common Stockholder the right
for thirty (30) days to purchase, under certain conditions and with certain
exceptions, such securities at the price at which the securities are to be
issued. If a Common Stockholder elects to purchase more securities than offered,
such Common Stockholder will be entitled to purchase his, her or its pro rata
portion of the offered securities. This preemptive right shall not apply to,
among other events: (i) securities issued or created as a result of any stock
dividend, subdivision, reclassification, recapitalization or similar event; (ii)
securities issued pursuant to a firm commitment underwritten public offering;
(iii) securities issued to fulfill or comply with any obligation of the Company
to issue securities pursuant to any present or future stock option plan, stock
purchase, bonus, savings investment, or other stock incentive programs for the
benefit of the directors, officers, employees of or consultants to the Company;
(iv) securities issued in isolated transactions in payment for goods and
services; (v) securities issued by reason of the exercise of outstanding
options, warrants or other rights to acquire securities; or (vi) securities
issued in consideration of the acquisition (whether by merger or otherwise) by
the Company or any of its subsidiaries of the stock or assets of another entity.
These rights are personal, non-transferable rights limited to the Common
Stockholders, subject to certain rights of transfer to family members or
affiliates described below or with the consent of the Company in its sole
discretion, and may only be exercised by such Common Stockholder or permitted
assignee if he, she or it holds at least 5,000 shares of Common Stock.
6. TAG-ALONG RIGHT
In the event the stockholders of the Company, approve the sale, transfer,
exchange or other disposition of fifty percent (50%) or more of the capital
stock of the Company in a single or series of
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related transactions (an "Approved Stock Sale Transaction"), Ravenscraig and its
permitted successors shall have the right (the "Tag-Along Right") to sell,
transfer, exchange or otherwise dispose of any shares of Common Stock then held
by such persons as part of such Approved Stock Sale Transaction on a pro rata
basis with all other selling stockholders, notwithstanding that such persons did
not approve of such Approved Stock Sale Transaction and/or did not otherwise
consent to the sale, transfer, exchange or other disposition of their shares of
Common Stock in accordance with the terms of such Approved Stock Sale
Transaction.
7. OTC BULLETIN BOARD(R) LOCK-UP RESTRICTIONS
In the event the Common Stock is quoted on the OTC Bulletin Board before
December 31, 2000, the Common Stockholders agree they will be subject to certain
contractual volume limitations on their sale on such market (the "OTC Bulletin
Board Lock-Up"), subject to the Company's consent, in its sole discretion, to
the waiver of such volume limitations; provided, however, any such waiver shall,
to the extent granted, be exercised on a pro rata basis with respect to all
holders of Common Stock (including shares received upon conversion of the Series
"A" Preferred Stock) who desire to sell shares on the OTC Bulletin Board. These
lock-up provisions are intended to assist in the creation of an orderly market
for the sale of the Common Stock on the OTC Bulletin Board. Specifically, shares
of Common Stock held by any current stockholder are allocated equally amongst
four stock certificates. Shares of Common Stock evidenced by the first stock
certificate will be issued free of the OTC Bulletin Board Lock-Up provision.
Shares evidenced by the second stock certificate can be sold on the OTC Bulletin
Board upon the earlier of three months following the initial quotation of the
Common Stock on the OTC Bulletin Board or June 30, 2000. Shares evidenced by the
third stock certificate can be sold on the OTC Bulletin Board upon the earlier
of six months following the initial quotation of the Common Stock on the OTC
Bulletin Board or September 30, 2000. Shares evidenced by the fourth stock
certificate can be sold on the OTC Bulletin Board upon the earlier of nine
months following the initial quotation of the Common Stock on the OTC Bulletin
Board or December 31, 2000. Notwithstanding the foregoing, any holder of less
than 3,000 shares of Common Stock may sell their shares on the OTC Bulletin
Board at any time free of the OTC Bulletin Board Lock-Up.
8. APPROVAL OF "CHANGE IN CONTROL" TRANSACTIONS
A. General. The Common Stockholders agree that none of them will vote to
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approve any transaction or series of transactions which would effectuate a
Change In Control (as such term is defined below) unless such transaction is
approved by a majority of shares of Common Stock held by the Common Stockholders
and a majority of shares of Series "A" Preferred Stock. The term "Change In
Control" shall mean any time an "Acquiring Person" attains, by reason of and
immediately after a transaction or series of related transactions (other than a
"Non-Control Transaction"), "Beneficial Ownership" of fifty percent (50%) or
more of the "Total Combined Voting Power" of the Company's then outstanding
"Voting Securities" (all as defined below). Notwithstanding the foregoing, a
Change In Control shall not be deemed to have occurred solely because any Person
acquires Beneficial Ownership of more than the threshold percentage of the
outstanding Voting Securities as a result of an acquisition of Voting Securities
by the Company (each, a "Redemption") which, by reducing the number of Voting
Securities outstanding, increased the percentage of outstanding Voting
Securities Beneficially Owned by such Person; provided, however, that: (i) a
Change In Control would occur as a result of a Redemption but for the operation
of this sentence, and (ii) after such Redemption, such Person becomes the
Beneficial Owner of any additional Voting Securities, which increase the
percentage of the then outstanding Voting Securities Beneficially Owned by such
Person over the percentage owned as a result of the Redemption, then a Control
Acquisition shall occur.
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B. Definitions. The term "Acquiring Person" shall mean any "Person" (as
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defined below) with the exception of: (i) any Employee Benefit Plan (or a trust
forming a part thereof) maintained by the Company, or by any corporation or
entity in which the Company holds fifty percent (50%) or more of the Voting
Securities (each, a "Controlled Subsidiary"); (ii) the Company or any Controlled
Subsidiary; or (iii) any Person which acquires the threshold percentage of
Voting Securities through a Non-Change In Control Transaction. The term "Non-
Change In Control Transaction" shall mean any transaction in which the
stockholders of the Company immediately before such transaction directly or
indirectly own, immediately following such transaction, at least a majority of
the Total Combined Voting Power (as defined below) of the outstanding Voting
Securities (as defined below) of the surviving corporation (or other entity)
resulting from such transaction, in substantially the same proportion as such
stockholders' ownership of the Company's Voting Securities immediately before
such transaction. The terms "Person," "Beneficial Ownership," "Total Combined
Voting Power" and "Voting Securities" shall have the meaning described to such
terms in Sections 13(d) and 14(d) of the Exchange Act and Rule 13d-3 promulgated
thereunder.
9. TERM
This Agreement shall remain in effect until March 30, 2002; provided,
however, section 1 through section 3 of this Agreement shall terminate earlier
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as of the date that the Series "A" Preferred Stock is converted into Common
Stock.
10. REPRESENTATIONS AND WARRANTIES
Each of the parties to this Agreement hereby represents and warrants to
each of the other parties to this Agreement, each of which is deemed to be a
separate representation and warranty, as follows:
A. Organization, Power and Authority. Such party: (i) if an entity, is
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duly organized, validly existing and in good standing under the laws of its
state, territory or province of incorporation or organization; and (ii) if an
entity or fiduciary, has all requisite corporate or other power and authority to
enter into this Agreement.
B. Authorization. The execution and delivery of this Agreement by such
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party, and the performance by such party of the transactions herein
contemplated, have, if such party is an entity or a fiduciary, been duly
authorized by, and are prohibited under, its governing organization or
authorizing documents, and no further corporate or other action on the part of
such party is necessary to authorize this Agreement, or the performance of such
transactions.
C. Validity. This Agreement has been duly executed and delivered by such
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party and, assuming due authorization, execution and delivery by each of the
other parties hereto, is valid and binding upon such party in accordance with
its terms, except as limited by: (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to creditor
rights generally; and (ii) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
D. Non-Contravention. Neither the execution or delivery of this Agreement
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by such party, nor the performance by such party of the transactions
contemplated herein: (i) will, if such party is an entity, breach or conflict
with any of the provisions of such party's governing, organizational or
authorizing documents; or (ii) to the best of such party's knowledge and belief,
will such actions violate or constitute an event of default under any agreement
or other instrument to which such party is a party.
E. Fairness. The terms and conditions of the transactions contemplated by
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this Agreement
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are fair and reasonable to such party based upon all of the facts and
circumstances at the time this Agreement is entered into; and such party has
voluntarily entered into the transactions contemplated by this Agreement,
without duress or coercion.
11. INTERPRETATION AND CONSTRUCTION
A. Preparation of Agreement. The parties have participated jointly in the
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negotiation and drafting of this Agreement and each provision hereof. In the
event any ambiguity, conflict, omission or other question of intent or
interpretation arises, this Agreement shall be construed as if jointly drafted
by the parties, and no presumption or burden of proof shall be presumed, implied
or otherwise construed favoring or disfavoring any party by virtue of the
authorship of this Agreement or of any provision hereof.
B. Performance on Business Day. In the event the date on which a party is
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required to take any action under the terms of this Agreement is not a business
day, the action shall, unless otherwise provided herein, be deemed to be
required to be taken on the next succeeding business day. For purposes of this
section, the term "business day" shall mean Monday through Friday (excluding any
legal holidays).
C. Survival of Representations and Warranties. All representations and
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warranties made by any party in connection with any transaction contemplated by
this Agreement shall, irrespective of any investigation made by or on behalf of
any other party hereto, survive the execution and delivery of this Agreement and
the performance or consummation of any transaction described in this Agreement,
and shall continue in full force and effect forever thereafter (subject to any
applicable statutes of limitation).
D. Independent Significance. The parties intend that each representation,
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warranty and covenant shall have independent significance. If any party has
falsely made or breached any representation, warranty or covenant contained
herein in any respect, the fact that there exists another representation,
warranty or covenant relating to the same subject matter (regardless of the
relative levels of specificity) which the party has not falsely made or breached
shall not detract from or mitigate the fact that the party has falsely made or
breached the first representation, warranty or covenant.
E. Entire Agreement; No Collateral Representations. Each party expressly
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acknowledges and agrees that this Agreement, and the agreements and documents
referenced herein: (i) are the final, complete and exclusive statement of the
agreement of the parties with respect to the subject matter hereof; (ii)
supersede any prior or contemporaneous agreements, memorandums, proposals,
commitments, guaranties, assurances, communications, discussions, promises,
representations, understandings, conduct, acts, courses of dealing, warranties,
interpretations or terms of any kind, whether oral or written (collectively and
severally, the "prior agreements"), and that any such prior agreements are of no
force or effect except as expressly set forth herein; and (iii) may not be
varied, supplemented or contradicted by evidence of prior agreements, or by
evidence of subsequent oral agreements. No prior drafts of this Agreement, and
no words or phrases from any prior drafts, shall be admissible into evidence in
any action or suit involving this Agreement.
F. Amendment; Waiver; Forbearance. Except as expressly provided herein,
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neither this Agreement nor any of the terms, provisions, obligations or rights
contained herein, may be amended, modified, supplemented, augmented, rescinded,
discharged or terminated (other than by performance), except by a written
instrument or instruments signed by all of the parties to this Agreement. No
waiver of: (i) any breach of any term, provision or agreement; (ii) the
performance of any act or obligation
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under this Agreement; and/or (iii) any right granted under this Agreement, shall
be effective and binding unless such waiver shall be in a written instrument or
instruments signed by each party claimed to have given or consented to such
waiver. Except to the extent that the party or parties claimed to have given or
consented to a waiver may have otherwise agreed in writing, no such waiver shall
be deemed a waiver or relinquishment of any other term, provision, agreement,
act, obligation or right under this Agreement, or of any preceding or subsequent
breach thereof. No forbearance by a party in seeking a remedy for any
noncompliance or breach by another party hereto shall be deemed to be a waiver
by such forbearing party of its rights and remedies with respect to such
noncompliance or breach, unless such waiver shall be in a written instrument or
instruments signed by the forbearing party.
G. Remedies Cumulative. The remedies of each party under this Agreement
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are cumulative and shall not exclude any other remedies to which such party may
be lawfully entitled.
H. Severability If any term or provision of this Agreement, or the
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application thereof to any person or circumstance, shall to any extent be
determined to be invalid, illegal or unenforceable under present or future laws,
then, and in such event: (i) the performance of the offending term or provision
(but only to the extent its application is invalid, illegal or unenforceable)
shall be excused as if it had never been incorporated into this Agreement, and,
in lieu of such excused provision, there shall be added a provision as similar
in terms and amount to such excused provision as may be possible and still be
legal, valid and enforceable; and (ii) the remaining part of this Agreement
(including the application of the offending term or provision to persons or
circumstances other than those as to which it is held invalid, illegal or
unenforceable) shall not be affected thereby, and shall continue in full force
and effect to the fullest legal extent.
I. Time is of the Essence. Except and to the extent there is a specific
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cure provision in this Agreement, each party understands and agrees that: (i)
time of performance is strictly of the essence with respect to each and every
date, term, condition, obligation and provision hereof imposed upon such party;
and (ii) the failure to timely perform any of the terms, conditions, obligations
or provisions hereof by such party shall constitute a material breach and a
noncurable (but waivable) default under this Agreement by such party.
J. Parties in Interest. Nothing in this Agreement shall confer any rights
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or remedies under or by reason of this Agreement on any persons other than the
parties hereto and their respective successors and assigns, if any, or as may be
permitted hereunder; nor shall anything in this Agreement relieve or discharge
the obligation or liability of any third person to any party to this Agreement;
nor shall any provision give any third person any right of subrogation or action
against any party to this Agreement.
K. No Reliance Upon Prior Representations. Each party acknowledges that:
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(1) no other party has made any oral representation or promise which would
induce such party, prior to executing this Agreement, to change such party's
position to his, her or its detriment, to partially perform, or to part with
value in reliance upon such representation or promise; and (2) such party has
not so changed its position, performed or parted with value prior to the time of
the execution of this Agreement, or such party has taken such action at its own
risk.
L. Rules of Construction. In interpreting the meaning of this Agreement:
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(i) the term "person" is defined in its broadest sense to include any individual
or natural person, entity (as such term is defined in this subsection L) and/or
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fiduciary (as such term is defined in this subsection L), and their respective
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successors and assigns; (ii) the term "entity" means any legal entity, including
any corporation, association, joint stock company, partnership (limited, general
or limited liability),
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joint-venture, and limited liability company, business trust, trust (whether
revocable or irrevocable), pension or profit sharing plan, individual retirement
account, or fiduciary or custodial arrangement; (iii) the term "fiduciary" means
any person acting in a fiduciary capacity, including in their capacity as a
trustee or a custodian; (iv) the term "affiliate" means any person controlling,
controlled by, or under common control with a party (for purposes of the
foregoing, the term "control" (including with the correlative meanings, the
terms "controlled by" and "under common control with") means the possession
directly or indirectly of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
securities or by contract or otherwise); (v) the term "subsidiary" means any
entity in which a party holds a controlling interest; (vi) the words "herein"
and "hereunder" and other words of similar report refer to this Agreement as a
whole, and not to any particular sections, subsections, paragraph, subparagraph
or other subdivision of this Agreement; (vii) the words "including," "includes,"
and "include" shall be deemed to be followed by the words "including without
limitation;" (viii) the word "or" shall not be deemed to be exclusive unless the
context indicates otherwise; and (ix) the word "all" shall be deemed to include
the word "any," and vice versa. All pronouns and any variation thereof used in
this Agreement shall be deemed to refer to the masculine, feminine, or neuter
(as the case may be), and to the singular or plural (as the case may be), as the
identity of the person or persons or the context may require for proper
interpretation of this Agreement. Any references in this Agreement to "dollars"
shall be deemed to refer to the currency of the United States of America, unless
such reference specifically references a dollar-denominated currency of a
country other than the United States of America. The headings used in this
Agreement are for convenience and reference purposes only, and shall not be used
in construing or interpreting the scope or intent of this Agreement or any
provision hereof. Each cross-references in this Agreement shall, unless
specifically directed to another agreement or document, be construed only to
refer to provisions within this Agreement, and shall not be construed to refer
to the overall transaction or to any other agreement or document. Each exhibit,
addendum, schedule and/or attachment referenced in this Agreement shall be
construed to be incorporated into this Agreement by such reference and made a
part hereof. References to any agreements (other than this Agreement) shall
include all amendments, modifications, supplements and/or renewals thereof.
Unless the context requires otherwise: (1) any reference herein to any federal,
state, local or foreign statutes or laws (collectively, the "Statutes") will be
deemed to include all rules and regulations promulgated thereunder: and (2) any
references herein to any Statute and/or any specific section or provision of any
such Statute are intended to refer to such section or provision thereof as
presently enacted and as subsequently amended, succeeded, recodified or
renumbered.
12. ENFORCEMENT
A. Applicable Law. This Agreement and the rights and remedies of each
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party arising out of or relating to this Agreement (including equitable
remedies) shall be solely governed by, interpreted under, and construed and
enforced in accordance with the laws (without regard to the conflicts of law
principles) of the Province of British Columbia, as if this Agreement were made,
and as if its obligations were to be performed in their entirety, within the
Province of British Columbia.
B. Consent to Jurisdiction and Venue; Service of Process. Any "action or
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proceeding" (as such term is defined below) arising out of or relating to this
Agreement shall be filed in and litigated solely before the provincial courts of
the Province of British Columbia. By execution and delivery of this Agreement,
each party: (i) generally and unconditionally accepts the exclusive jurisdiction
of the aforesaid courts and venue therein, and waives to the fullest extent
provided by law any defense or objection to such jurisdiction and venue based
upon the doctrine of "forum non conveniens;" and (ii) consents to service of
process in any such action or proceeding by delivery of certified or registered
mailing of the summons and complaint in accordance with the notice provisions of
this Agreement. The term "action or proceeding" is defined as any and all
claims, suits, actions, hearings, arbitrations or
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other similar proceedings, including appeals and petitions therefrom, whether
formal or informal, governmental or non-governmental, or civil or criminal. The
foregoing consent to jurisdiction shall not constitute general consent to
service of process in the Province of British Columbia for any purpose except as
provided above, and shall not be deemed to confer rights on any person other
than the parties to this Agreement.
C. Waiver of Right to Jury Trial. Each party hereby waives such party's
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respective right to a jury trial of any claim or cause of action based upon or
arising out of this Agreement. Each party acknowledges that this waiver is a
material inducement to each other party hereto to enter into the transaction
contemplated hereby; that each other party has already relied upon this waiver
in entering into this Agreement; and that each other party will continue to rely
on this waiver in their future dealings. Each party warrants and represents that
such party has reviewed this waiver with such party's legal counsel, and that
such party has knowingly and voluntarily waived its jury trial rights following
consultation with such legal counsel.
D. Consent to Specific Performance and Injunctive Relief; Waiver of Bond
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or Security. Each party acknowledges that each of the other parties to this
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Agreement may, as a result of such party's breach of his, her or its covenants
and obligations under this Agreement, sustain substantial and irreparable injury
and damage which cannot be reasonably or adequately compensated by damages at
law. Consequently, such party agrees that the non-breaching parties shall be
entitled, in the event of such party's breach or threatened breach of his, her
or its covenants and obligations hereunder, to obtain equitable relief from a
court of competent jurisdiction including enforcement of each provision of this
Agreement by specific performance and/or temporary, preliminary and/or permanent
injunctions enforcing any of the rights of the non-breaching parties, requiring
performance by such breaching party, or enjoining any breach by such breaching
party, all without proof of any actual damages that have been or may be caused
to the non-breaching party(s) by such breach or threatened breach, and without
the posting of bond or other security in connection therewith. The defending
party waives the claim or defense therein that any non-breaching party bringing
the such action or proceeding has an adequate remedy at law, and such defending
party shall not allege or otherwise assert the legal position that any such
remedy at law exists. Each party agrees and acknowledges that: (i) the terms of
this subsection D are fair, reasonable and necessary to protect the legitimate
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interests of the other parties to this Agreement; (ii) this waiver is a material
inducement to each of the other parties to enter into the transactions
contemplated hereby; and (iii) each of the other parties relied upon this waiver
in entering into this Agreement; and will continue to rely on this waiver in
their future dealings with such party. Each party represents and warrants that
such party has reviewed this provision with such party's legal counsel, and that
such party has knowingly and voluntarily waived his, her or its rights following
consultation with legal counsel.
E. Recovery of Fees and Costs. If any party institutes, or should any
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party otherwise become a party to, any action or proceeding based upon or
arising out of this Agreement, including the enforcement or interpretation of
this Agreement or any provision hereof, or for damages by reason of any alleged
breach of this Agreement or any provision hereof, or for a declaration of rights
in connection herewith, or for any other relief, including equitable relief, in
connection herewith, the "prevailing party" (as such term is defined below) in
any such action or proceeding, whether or not such action or proceeding proceeds
to final judgment or determination, shall be entitled to receive from the non-
prevailing party as a cost of suit, and not as damages, all fees, costs and
expenses of enforcing any right of the prevailing party (collectively, "fees and
costs"), including: (i) reasonable attorneys' fees and costs and expenses; (ii)
witness fees (including experts engaged by the parties, but excluding officers,
directors, employees, managers or general partners of the parties); (iii)
accountants' fees; (iv) fees of other professionals and (v) any and all other
similar fees incurred in the prosecution or defense of the action or proceeding;
including the following: (1) postjudgment motions; (2) contempt proceedings;
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(3) garnishment, levy, and debtor and third party examinations; (4) discovery
and (5) bankruptcy litigation. All of the aforesaid fees and costs shall be
deemed to have accrued upon the commencement of such action, and shall be paid
whether or not such action is prosecuted to judgment. Any judgment or order
entered in such action shall contain a specific provision providing for the
recovery of the aforesaid fees, costs and expenses incurred in enforcing such
judgment and an award of prejudgment interest from the date of the breach at the
maximum rate of interest allowed by law. The term "prevailing party" is defined
as the party who is determined to prevail by the court after its consideration
of all damages and equities in the action or proceeding (the court shall retain
the discretion to determine that no party is the prevailing party, in which case
no party shall be entitled to recover its fees and costs under this
subsection E).
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13. MISCELLANEOUS
A. Costs and Expenses. Except as expressly set forth in this Agreement,
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each party shall pay all legal and other fees, costs and expenses incurred or to
be incurred by such party in negotiating and preparing this Agreement; in
performing due diligence or retaining professional advisors; and in complying
with such party's covenants, agreements and conditions contained herein.
B. Cooperation. Each party agrees, without further consideration, to
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cooperate and diligently perform any further acts, deeds and things, and to
execute and deliver any documents that may be reasonably necessary or otherwise
reasonably required to consummate, evidence, confirm and/or carry out the intent
and provisions of this Agreement, all without undue delay or expense.
C. Notices. Unless otherwise specifically provided in this Agreement, all
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notices, demands, requests, consents, approvals or other communications
(collectively and severally called "notices") required or permitted to be given
hereunder, or which are given with respect to this Agreement, shall be in
writing, and shall be given by: (i) personal delivery (which form of notice
shall be deemed to have been given upon delivery); (ii) by telegraph or by
private airborne/overnight delivery service (which forms of notice shall be
deemed to have been given upon confirmed delivery by the delivery agency), (iii)
by electronic or facsimile or telephonic transmission, provided the receiving
party has a compatible device or confirms receipt thereof (which forms of notice
shall be deemed delivered upon confirmed transmission or confirmation of
receipt); or (iv) by mailing in the United States mail by registered or
certified mail, return receipt requested, postage prepaid (which forms of notice
shall be deemed to have been given upon the fifth {5th} business day following
the date mailed). Notices shall be addressed to such address as the party shall
have specified in a writing delivered to the other parties in accordance with
this section. Any notice given to the estate of a party shall be sufficient if
addressed to the party as provided in this subsection C.
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D. Counterparts; Electronically Transmitted Documents This Agreement may
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be executed in counterparts, each of which shall be deemed an original, and all
of which together shall constitute one and the same instrument, binding on all
parties hereto. Any signature page of this Agreement may be detached from any
counterpart of this Agreement and reattached to any other counterpart of this
Agreement identical in form hereto by having attached to it one or more
additional signature pages. If a copy or counterpart of this Agreement is
originally executed and such copy or counterpart is thereafter transmitted
electronically by facsimile or similar device, such facsimile document shall for
all purposes be treated as if manually signed by the party whose facsimile
signature appears.
E. Execution by All Parties Required to be Binding. This Agreement shall
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not be construed to be an offer and shall have no force and effect until this
Agreement is fully executed and
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delivered by all parties hereto pursuant to the terms of section D. Until such
---------
time as all parties fully execute this Agreement, any party who has previously
executed and delivered this Agreement may revoke such execution and delivery.
WHEREFORE, the parties hereto have executed this Agreement in the City of
Burnaby, Province of British Columbia, as of the date first set forth above.
CLEAN ENERGY TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------
Xxxx X. Xxxxx, President
BO TECH BURNER SYSTEMS, LTD.
By: /s/ Xxxx X. Xxxxx
-----------------------------
Xxxx X. Xxxxx, President
/s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
/s/ Xxxxx X. XxXxxx
--------------------------------
Xxxxx X. XxXxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxxx
818879 ALBERTA, LTD.
By: /s/ R. Xxxx Xxxxxxx
-----------------------------
R. Xxxx Xxxxxxx, President
RAVENSCRAIG PROPERTIES LIMITED
By: /s/ Xxxxx Xxxx
-----------------------------
Xxxxx Xxxx, on behalf of its Secretary,
Corporate House
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