EXHIBIT 10.10
AGREEMENT TO REFINANCE
THIS AGREEMENT made this 14th day of November, 1993, by and between Xxxxxx
X. Xxxxx, Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx, all residents of New Jersey,
(hereinafter referred to as "Patent Holders") and Ocean Power Technologies,
Inc., a New Jersey Corporation, located at X.X. Xxx 000, Xxxxxxxxx, Xxx Xxxxxx,
00000 (hereinafter referred to as "OPT").
WITNESSETH:
WHEREAS OPT and the Patent Holders previously agreed to the sale of U.S.
Patent #0-000-000 (the "Patent") by the Patent Holders to OPT for $500,000, to
be paid in full before June 30, 1986 from the proceeds of certain financings
accomplished by OPT;
WHEREAS that original agreement for payment was deferred by subsequent
Assignment Agreement Modifications dated June 1, 1985 and January 20, 1989;
WHEREAS no payments nor any interest have, to the date set forth above,
ever been made by OPT to the Patent Holders for U.S. patent #0-000-000;
NOW, THEREFORE, it is covenanted and mutually agreed by and between the
parties as follows:
SECTION 1
Refinancing. Patent Holders and OPT hereby agree to refinance the
payment for the Patent, giving recognition to the original sale price
of $500,000 and the delay in the performance by OPT under the terms of
the original sale agreement, and that no rights or privileges are
retained in the U.S. patent #0-000-000, except as provided herein
below, by the Patent Holders.
SECTION 2
Terms of Payment. The terms and conditions of payment by OPT for U.S.
patent #0-000-000 are as follows:
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2.01 The purchase price is $500,000.
2.02 A Note of $25,000 will be issued by OPT to each of the three
Patent Holders (the "Notes"), effective with the signing of this
document by the Patent Holders and OPT Treasurer, in the form
attached hereto. The terms of these Notes will provide for
interest at 8% per annum, compounded annually. Interest and
principal shall be payable upon receipt by OPT of its next round
of equity financing in excess of $1,499,900.
2.03 The next $425,000 of original purchase price shall be paid by OPT
based upon royalty payments made by OPT to the Patent Holders.
The base of such royalties will be revenues earned by and paid to
OPT for sales of products, licenses and development contracts
which are based on the piezoelectric generation of power. The
amount of the royalty paid out will equal six percent (6%) of
paid revenues from licenses sold and four percent (4%) of paid
revenues from product sales and development contracts.
2.04 Up to an additional $500,000 of royalty payments will be made by
OPT to the Patent Holders on the same royalty base as noted in
2.03 above. Such additional payments are in recognition of the
time value of the purchase price which heretofore has not been
paid within the time frame originally anticipated.
2.05 Under the terms of this refinancing agreement, a maximum amount
of $1,000,000 (excluding interest on the Notes set forth in 2.02
above) will be paid to the Patent Holders in connection with the
sale and refinancing of patent #0-000-000.
2.06 Patent Holders understand that all payments provided hereunder
are contingent upon the realization of:
(a) An equity financing in excess of $1,499,900, as referenced
in 2.02 above, and
(b) The realization of paid revenues by OPT, as referenced in
2.03 and 2.04 above.
SECTION 3
Controlling Law. This agreement shall be controlled and enforced
solely in accordance with the laws of the State of New Jersey and
shall be governed by the laws of said State.
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SECTION 4
Amendment. This Agreement may be amended, modified, superseded or
supplemented only by an instrument in writing executed and delivered
by each of the parties hereto, which instrument when so executed and
delivered shall thereupon become a part of this Agreement and the
provisions thereof shall be given affect as if contained in this
Agreement as of the date hereof.
SECTION 5
Waiver. The representations, warranties, covenants or conditions set
forth in this Agreement may be waived only by a written instrument
executed by the parties who are waiving. The failure of any party at
any time or times to require performance of any provision herein shall
in no matter affect the right of such party at a later time to enforce
the same. No waiver by any party of any condition, or breach of any
terms, covenant, agreement, any condition, or breach of any terms,
covenant, agreement, representation or warranty contained in this
Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of any other condition or of the breach of any
other term, covenant, agreement, representation or warranty contained
in this Agreement.
SECTION 6
Entire Agreement. This Agreement, together with the documents and
instruments referred to herein, sets forth the entire agreement and
understanding of the parties hereto in respect of the transaction
contemplated hereby, and supersedes all prior agreements, arrangements
and understandings relating to the subject matter hereof.
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SECTION 7
Section Headings. All section headings are inserted for convenience
only and shall not control or effect the meaning or construction of
any provision of this Agreement.
SECTION 8
Binding Effect. All the terms and conditions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
legal representatives, successors and assigns of the parties.
IN WITNESS WHEREOF, the parties hereto have hereunto set this hands and
seals or caused this instrument to be signed by their proper corporate officers
and their proper corporate seals to be hereto affixed the day and year first
above written.
WITNESS: OCEAN POWER TECHNOLOGIES, INC.
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Treasurer
WITNESS:
/s/ Xxxxxx X. Xxxxx
------------------------------------- ----------------------------------------
Xxxxxx X. Xxxxx, Patent Holder
WITNESS:
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------- ----------------------------------------
Xxxxxxx X. Xxxxxxxx, Patent Holder
WITNESS:
/s/ Xxxxxx X. Xxxxxx
------------------------------------- ----------------------------------------
Xxxxxx X. Xxxxxx, Patent Holder
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