Exhibit 10.19
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
CONTRACT FOR THE DEVELOPMENT AND APPLICATION
OF A SEA WAVE ENERGY GENERATION SYSTEM IN FRANCE
This contract for the development of the application of a wave energy generation
system in France (hereinafter: "the Agreement") is signed as of June 17, 2005 by
and between:
IBERDROLA ENERGIAS RENOVABLES II, S.A. SOCIEDAD UNIPERSONAL (hereinafter:
"IBERENOVA"), a company existing and organised under the Spanish law, with Tax
Registration Number A-83028035, having its registered office located at Xxxxx
Xxxxxxx, 0, Xxxxxx, Xxxxx, represented by Xx XXX XXXXXX XXXXXXXX XXXXXXX with
National Identity Document No. 79.305.185-N and Xx. XXXXXX XXXXXX XXXX, with
National Identity Document No. 12.158.285-W, acting in their capacity as joint
and several representatives by virtue of the deed of power of attorney executed
on 29 May 2002 before the Notary Public of Bilbao, Xx. Xxxxxxx Xxxxx, under
number 1.039 of his records.
And
TOTAL ENERGIE DEVELOPPEMENT SA (hereinafter: "XXX"), a company existing and
organised under the French law, having its registered office located in Xxxxxx,
00000 Xxxxx la Defense Cedex, 0, Xxxxx xx xx Xxxxxxx, Xx Defense 6, represented
by Xx. XXXXXX COCHEVELOU acting in his capacity as President.
And
OCEAN POWER TECHNOLOGIES LTD. (hereinafter: "OPT"), a company, wholly-owned by
OPT Inc. existing and organised under the laws of England and Wales having its
registered office located at Warwick Innovation Centre, Gallows Hill, CV34 6UW
Warwick, England, United Kingdom, represented by Mr. XXXX XXXXXX acting in his
capacity as Chief Executive.
And
OCEAN POWER TECHNOLOGIES INC, (hereinafter: "OPT Inc") a company existing and
organised under the laws of United States of America having its registered
office located at Pennington, New Jersey, United States of America, represented
by Xx. Xxxxxx X. Xxxxxx, acting as Chief Executive officer of the company.
IBERENOVA, XXX and OPT being hereinafter individually referred to as a (Party)
and collectively referred to as the (Parties).
WHEREAS:
A. OPT represents that it has all rights to (i) use the industrial and
intellectual property rights of the technology for the generation of
electrical power using energy from sea waves, registered under the name
PowerBuoyTM System (hereinafter: together with any developments,
improvements or derivatives thereof, the "Technology"), (ii) sell the
PowerBuoys stations, and (iii) operate and maintain them.
B. IBERENOVA is strongly active in the renewable energy sector.
C. IBERENOVA and OPT Inc., inter alia, have entered into a Collaboration
Agreement dated July 2, 2004 (hereinafter: the "Cantabria Agreement")
whereby they are participating in the evaluation and possible development
of a pilot project for a sea wave energy generation electricity power
station with an initial power of 1.25 MW on the North coast of Spain
(hereinafter: the "Cantabria Project") using the Technology. As of the date
hereof, TOTAL EOLICA, S.A has joined the Cantabria Agreement in writing,
with the remaining partners' prior consent.
D. IBERENOVA and OPT, assuming that the results of the Cantabria Project were
favourable, wish to develop a new project for a sea wave energy generation
electricity power station using the Technology on the coast of France, in
collaboration with an industrial company being active in the renewable
energy sector in France.
E. XXX (a company of the TOTAL Group which is active world-wide in the energy
sector) is conducting its business in the renewable energy sector
especially in France and is interested in participating in generation
electricity projects using sea wave energy both in France and in other
countries including Spain.
F. TOTAL EOLICA, S.A (a company of the TOTAL Group which is active in the
energy sector) is conducting its business in the renewable energy sector in
Spain and is interested in participating in generation electricity projects
using sea wave energy in Spain.
G. The Parties, based on the complementary nature of their skills, experience
and resources, wish to enter into a collaboration to study and assess the
technical and economical possibility to develop on the coast of France, one
sea wave energy generation electricity power station with a capacity of
around 2 to 5 MW (the exact number of MWs to be decided by the Steering
Committee as provided below) using the Technology (hereinafter: the
"Project").
H. The Parties acknowledge that the French Authorities have enabled the
development of Renewable Energy Projects through the issuance of
"Competitive Calls for Tenders" (for example Competitive Calls for Tenders
issued in year 2004 for Biomass Energy, Offshore Wind Energy, Onshore Wind
Energy). The Parties acknowledge that the Project will not be a
Demonstration Project (with little or no return on capital) and that the
intention of this Agreement is to develop a project which will be submitted
to the the first "Competitive Call for Tenders" to be issued by the French
Authorities regarding Wave Energy.
I. The Parties wish to set forth certain rules to regulate more precisely
their collaboration and, in this regard, have entered into this Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS.
1. PURPOSE.
Under the terms and subject to the conditions set forth in this Agreement,
the Parties shall actively and closely co-operate in good faith to study
and assess the feasibility of the Project. Such feasibility study shall
include the research of potential sites on the coast of France whereon one
sea wave energy generation electricity power station (hereinafter: the
"Power Station") may be installed and shall concern all other aspects
relating to the Project including but not limited to its economical,
technical, legal, administrative, environmental, marketing and operational
constraints, aspects and perspectives.
Should the Parties conclude that the Project is feasible, they shall meet
and discuss in good faith as to whether the Project should be implemented
or not and, if the Parties decide to implement the Project, shall define
the scheme for any such development and operation of the Project.
For the purposes of this Agreement the Parties agree that "France" shall
mean all French territories excluding the following: "Nouvelle-Caledonie",
"Polynesie-Francaise", "Wallis et Futuna", and the "Terres australes et
antarctiques francaises" (TAAF).
2. RELATIONSHIP BETWEEN THE PARTIES.
2.1 Pursuant to the provisions of this Agreement, the interests, rights,
duties, obligations and liabilities of the Parties shall be several and not
joint, but without limitation to what is provided in section 10 below.
2.2 Nothing in this Agreement shall be construed as creating a partnership,
association, joint venture or any other legal entity between the Parties.
The Parties agree that their entering into any further agreements or their
decision to proceed with the implementation of the Project (phase 2) are
subject to the prior corporate approval by their respective Board of
Directors (or equivalent) and, with respect to XXX and IBERENOVA, to the
prior approval by the Executive Committee of TOTAL S.A. and of the Steering
Committee (Comite Operativo) and the Executive Committee of IBERDROLA, S.A.
respectively. Nothing in this Agreement is intended to bind the Parties
neither to enter into any further agreement nor to proceed with the
implementation of the Project.
2.3 From the effective date of this Agreement, each Party shall not enter into
any commitment or incur any liabilities or obligations for or on behalf of
any other Party towards third parties in connection with the Project
without the prior written consent of the relevant Party. In this regard, no
Party shall be deemed to be a representative, agent, employee of any other
Party for any purpose whatsoever.
2.4 During the duration of the Feasibility of Studies (phase 1 of this
Agreement) including any written extension thereof, and until December 31,
2008, OPT shall not, directly or indirectly, within France: (i) develop any
power plant based on the Technology or any improvements or developments
thereof; (ii) build and/or supply any equipment based on the PowerBuoy
System other than as provided for in this Agreement.
3. FEASIBILITY STUDIES (PHASE 1)
During an initial period of eighteen (18) months from the execution date of
this Agreement, the Parties will jointly conduct studies (the "Feasibility
Studies") in respect of the following aspects of the Project :
(a) Determination of the wave energy potential of the coast of France
obtainable with the Technology;
(b) Establishment and development of a design and installation programme
of the corresponding Power Station with a capacity of around 2 to 5
MW, the exact capacity to be agreed to by the Steering Committee;
(c) Negotiation with the French authorities of the conditions and
agreement required to implement the Project, including without
limitation public marine domain concession, building consent,
connection agreement and power purchase agreement;
(d) Obtaining all other necessary consents and permits;
(e) Assessment of the required engineering procurement and construction
contract and related agreements;
The Parties shall prepare a work program (including a project plan) and a
budget in respect of the Feasibility Studies for approval by the Steering
Committee.
The Parties shall use reasonable efforts to complete the Feasibility
Studies in accordance with the work program. If the Parties do not have
sufficient information eighteen (18) months after signing this Agreement to
make the decision contemplated in this section regarding the development of
the Project, the Parties, through the Steering Committee, agree to extend
the initial phase up to a maximum of further six (6) months.
During this xxxxx 0, XXXXXXXXX shall be the leader for promoting the
Project and negotiating with the French authorities all necessary
authorisations. However, IBERENOVA shall keep the other Parties informed of
the content of its discussions with French Officials (including but not
limited to: representatives of the French government, ministries, local and
central administration, elected people etc...) regarding the Project.
When the Feasibility Studies are completed, and if the Parties unanimously
conclude that the Project would be economically, technically and
financially feasible, the Parties will meet to discuss and decide in
writing whether and how they will jointly develop such Project. The Party
or Parties not agreeing in writing to develop the Project before the said
90-day from completion of the Feasibility Studies will be considered, for
all the purposes of this Agreement, as a Withdrawing Party and thus subject
(without limitation) to Clauses 8.3.(b) and 8.3.(c) below. For the purposes
herein, the Feasibilities Studies will be deemed to have been completed
when so agreed to by the Steering Committee, but without limitation to
Clause 8.2.(a) below.
The Parties shall exchange all relevant information necessary to perform
the Feasibility Studies, provided that none of the Parties shall be
required to furnish the others with non-proprietary data subject to
confidentiality agreements vis-a-vis third parties until they obtain such
third party's prior consent, provided that OPT will not be entitled to
claim third parties' rights over the "Technology" to restrain the other
Parties from having access thereto.
Each Party shall be entitled to use the Feasibility Studies only pursuant
to the terms of this Agreement and in accordance with the provisions of
Exhibit 1 ("Confidential Information, Inventions and Trade Secrets
Agreement") to this Agreement.
4. PARTICIPATING INTERESTS IN THE PROJECT.
At the time of execution of this Agreement, the undivided interest of each
Party in the rights, benefits and obligations pursuant to this Agreement
and in the Project (hereinafter: the "Participating Interest") shall be :
PARTY PARTICIPATING INTEREST
----- ----------------------
IBERENOVA [**]
XXX [**]
OPT 10%
5. COSTS AND EXPENSES.
All costs and expenses incurred directly by the PARTIES in connection with
the study and assessment of the Project, together with all other costs and
expenses from external advisors for the purpose of carrying out the work
contemplated by the PHASE 1 shall be shared between the PARTIES as per
their respective PARTICIPATING INTEREST in the Project, provided they have
been previously approved by the STEERING COMMITTEE and regardless of
whether or not the PROJECT finally goes ahead and even if one or several of
the PARTIES hereto decide not to go into the PROJECT, in which case section
8.3 (b) shall apply.
In that sense, an economic fund (hereinafter the "FUND") will be
established and shall be payable by the PARTIES in the proportions of their
PARTICIPATING INTEREST. The FUND will be managed by the STEERING COMMITTEE
which will detail the contributions to be made by each of the PARTIES to
the FUND, and the budget of expenses of each PARTY to be paid by the FUND,
in the PHASE 1.
The Steering Committee shall decide which of the Parties or a third party
shall carry out the various aspects of work contemplated by this Agreement.
The Fund shall be managed by IBERENOVA who also shall be the formal
addressee of the invoices from the Parties. The invoices shall be paid
within [**] days.
If the decision to implement the Project is taken, said payments to the
Fund by each Party shall be recoverable from the Special Purpose Company
that may be created by the
Parties for the development and operation of the Project or shall be
capitalised in this Special Purpose Company as appropriate.
Each Party shall retain evidence, including supporting documentation such
as invoices and timesheets, of all costs for inspection upon request. All
costs to be incurred in accordance with this Agreement, shall be budgeted,
presented and approved by the Steering Committee.
6. STEERING COMMITTEE.
6.1 Upon execution of this Agreement, the Parties shall set up a Steering
Committee (hereinafter: the "Steering Committee") composed of the following
three (3) members (1 representative appointed by each Party):
XXX representative: [**]
IBERENOVA representative: [**]
OPT representative: [**]
The representative appointed by [**] shall be the chairman of the Steering
Committee. The Steering Committee shall have ultimate overall control and
decision-making powers with regard to the activities under Phase 1 of this
Agreement. A Party may change its representative or designate an alternate
(who will need to be an employee of the appointing Party or of any company
of its group of companies subject to the confidentiality obligations
provided herein), subject to give prior written notice to the other
Parties.
6.2 The Steering Committee shall meet as often as necessary, but at least [**].
Any Party shall have the right to submit a proposal for consideration by
the Steering Committee.
6.3 The meetings will be held alternately in Madrid and Paris (at the
head-offices of IBERENOVA and XXX) or at such other place as may be agreed
from time to time by the Parties. The presence of all representatives of
the Parties shall be required to constitute a quorum for any meeting of the
Steering Committee. Each Party shall use its reasonable efforts to ensure
the existence of a quorum at any duly called meeting of the Steering
Committee.
6.4 The Parties intend that the members of the Steering Committee shall attend
the meetings of the Steering Committee in person, but recognise that
members may from time to time be prevented from doing so. Therefore,
members of the Steering Committee may participate in a meeting of the
Steering Committee by means of telephone or video conference or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute
presence in person at such meeting. Each Party may also designate by
written notice to the other Parties an alternate representative, who will
need to be an employee of the appointing Party or of any company of its
group companies subject to the confidentiality obligations provided herein,
to act in the absence of a member unable to attend a meeting of the
Steering Committee. Any action required or permitted to be taken at a
meeting of
the Steering Committee may be taken without a meeting if a written consent,
setting forth the action so taken, is signed by all members of the Steering
Committee.
6.5 The Steering Committee shall be responsible for the following activities:
- reviewing, modifying and approving the budget for all costs and
expenses to be incurred in accordance with clause 5 in connection
with the Project;
- monitoring Project progress and adherence to the budget;
- engagement and termination of any external accountants,
engineers, environmental consultants, financial advisors or legal
counsel and all other external advisors providing services for
the Project;
- approving the distribution or payment of any amount to any Party
except pursuant to the approved budget;
- approving the selection of the site whereon Power Station may be
installed;
- analysis of the conclusions of the Feasibility Studies and
recommendation to the Parties as to the possible implementation
of the Project;
- deciding that the Feasibility Studies of the Project are ended;
- extending the duration of the Feasibility Studies phase;
- approving a time schedule for the possible implementation of the
Project;
- approving public announcements to be made in connection with the
Project.
6.6 Decisions of the Steering Committee shall be made by unanimous approval of
the representatives of the Parties (principle of consensus), it being
understood that the representative of each Party shall have one (1) vote.
If the Steering Committee is unable to reach agreement on any matter within
its competence, at the request of either Party, a second meeting of the
Steering Committee shall be convened to be held within [**] weeks from the
date of the first meeting at which the Steering Committee failed to reach
agreement. At this second meeting, the Steering Committee shall apply all
possible means to resolve the disagreement.
6.7 All decisions taken during a meeting by the Steering Committee shall be
recorded in minutes. Minutes of the meetings of the Steering Committee
shall be drafted in English by the Chairman and a draft shall be sent to
the Parties within [**] working days of the meeting. The minutes shall be
deemed approved by the Parties if no comment is made within [**] working
days from the sending of the draft to the Parties. All the important
decisions taken during a meeting shall be recorded and signed upon at the
end of the meeting.
6.8 Relations with French media will be managed by XXX as per the decision
taken by the Steering Committee. Similar arrangements will be implemented
for phase 2.
7. IMPLEMENTATION OF THE PROJECT (PHASE 2).
Provided that the Parties agree in writing that the Project should be
implemented, they shall identify an optimal legal structure and in
connection therewith, they (or any of their Affiliated Companies) shall
incorporate a "Societe Anonyme"(S.A) or a "Societe par Actions Simplifiees"
(S.A.S) under French law (or other legal vehicle as may be agreed by the
Parties) for the implementation of the Project (hereinafter: the "Special
Purpose Company" or the "SPC"). For the purpose of this Agreement,
"Affiliated Company" shall mean any company or legal entity which (i)
controls either directly or indirectly a Party, or (ii) which is controlled
directly or indirectly by such Party, or (iii) is directly or indirectly
controlled by a company or entity which directly or indirectly controls
such Party. "Control" means the right to exercise one hundred percent
(100%) of the voting rights.
The Parties shall use their reasonable commercial efforts to negotiate in
good faith and enter into the bylaws and shareholders agreement, and to
incorporate the SPC no later than [**] months after a final decision (if
any) is taken in writing to implement the Project.
The Parties hereby agree on the following basic principles that shall
govern the ownership and management of the SPC and the business
relationships between the SPC and each Party (or its Affiliated Companies):
(a) The head-office of the SPC shall be located in the region of Paris,
France.
(b) Share in the capital of the SPC shall be distributed between the
Parties (or any Affiliated Company of each Party) as follows:
PARTY SHARE CAPITAL PERCENTAGE
----- ------------------------
IBERENOVA [**]
XXX [**]
OPT 10%
The shares shall be indivisible and shall give rise each to equal
rights of participation in the collective decisions and in the annual
income as well.
(c) The share capital of the SPC shall be in an amount sufficient so that
external funding does not require sureties or guarantees of the
Parties. Each Party shall contribute to the equity of the SPC in
proportion to its percentage of share in the capital;
(d) The General Manager ("Directeur General" in a S.A. or "President" in a
S.A.S. under French law), the Chairman and the Company Secretary shall
be appointed amongst candidate(s) proposed by IBERENOVA. Subject to
the overall supervision and control of the Board of Directors (or any
equivalent corporate decision body in
the S.A.S.), the General Manager shall be responsible for the
day-to-day management of the SPC;
(e) The Board of Directors shall be composed of five(5) members of whom
three(3) shall be appointed by IBERENOVA, one(1) by XXX and one(1) by
OPT provided that the initial capital stake of each Party is in
accordance with Clause 4 above. In case of change of the distribution
of the share capital among the shareholders, the Board composition
will be amended to reflect broadly the respective percentage held by
each Party; in any case, each Party will have the right to appoint at
least one(1) member of the Board of Directors. Except for the
decisions mentioned below, all resolutions of the Board of Directors
shall be adopted by a simple majority of the directors present or
represented at the meeting;
(f) No action shall be taken by or on behalf of the SPC by the General
Manager or any other person on any of the following matters, except by
a resolution of the Board of Directors (or the general assembly of the
shareholders as appropriate) adopted by not less than a 80% majority
of the voting powers of the directors (i.e. for the foreseen initial
composition of the Board, 4 out of 5 directors vote favourably) (or
80% of the share capital, as the case may be):
- approval of the SPC's business plans, which shall include the
investments to be carried out for implementing the Project and
amendments to said investments exceeding 500,000 Euros;
- investment or divestitures other than in the ordinary course of
business of the SPC or except expressly authorized in the
business plan or in duly approved amendments thereto, including
without limitation operation and maintenance investments directly
addressed to enlarge the useful life or increase the production
of the original Project;
- making of loans or borrowing by the SPC other than those
addressed to financing the investments included in the SPC's
business plans or its duly approved amendments or otherwise
previously approved pursuant this Section (f);
- entering into, terminating or modifying any contract between the
SPC and (i) any Party (or its Affiliated Companies), or (ii) any
company or entity in which any Party has a direct or indirect
interest, or (iii) any manager or director of the SPC;
- conversion, transformation, merger, split, dissolution and
liquidation, save in the compulsory cases contemplated by law;
- establishment, closing down or winding up of branches and
subsidiaries;
- modification of the share capital, except those share capital
increases required so that external financing of the Project does
not entail personal guarantees by the Parties;
- elimination of the preferential subscription right in capital
increases;
- issues of convertible debentures and execution of any loan
agreement with rights to conversion to capital.
(g) The shareholder agreement shall contain "deadlock" provisions that may
apply in the case at any decision listed in sub-paragraph (f) above is
not approved by a vote satisfying the required supermajority;
(h) Bylaws and the shareholders agreement shall contain provisions
granting the Parties pre-emption rights for the case of transfer of
the SPC shares to third parties (other than to the transferring
Party's Affiliated Companies).
In any case, (i) OPT's prior written approval shall be required when
the potential transferees is a competitor to OPT, (ii) TED's prior
written approval shall be required when the potential transferee is an
oil and gas company, (iii) IBERENOVA's prior written approval shall be
required when the potential transferee is a utility.
(i) The SPC shall submit each year its financial statements for auditing
by an independent accounting firm that will be chosen among the four
top auditing firms in France.
(j) OPT shall supply and install the equipment based on the Technology,
and provide the SPC with assistance and information, including
operation and maintenance services, with the sufficient scope and
extension so that the SPC may operate the Project, and any further
projects as per Section 9 below, pursuant to state-of-the art
standards during all its useful life (the "Supply"). Such Supply
obligations shall be exclusive for France until 31st of December
2008;
(k) In the design and construction phases, the SPC shall arrange with
IBERENOVA or XXX (or any of their Affiliated Companies), whichever
company submits the best proposal in market conditions, a contract for
the provision of promotion, management, direction, control,
administrative and representation services. The SPC may decide to
split this contract between IBERENOVA and XXX.
(l) For the operation phase, the SPC shall have the minimum team necessary
to perform the tasks that are required and to the extent feasible
shall subcontract the other functions. Alternatively, the SPC may
decide that the Parties will perform these tasks on its behalf.
(m) The SPC shall be responsible for the acquisition of all necessary
supplies and services for the installation, start-up and operation of
the Power Stations.
In that sense, on market conditions, the SPC shall contract with OPT
for the supply and installation of the Power Stations. [**].
Additionally, an Operation and Maintenance agreement shall be awarded
to OPT, on market conditions, for the Power Stations over the first
10 years of the projects' lifetime.
8. EFFECTIVENESS / TERMINATION.
8.1 After its execution by the Parties, this Agreement shall become effective
as from the day and year first above written.
8.2 This Agreement shall terminate upon the earliest to occur of the following
events:
(a) 27 months after the date of execution of this Agreement without a
written decision having been passed to implement the Project (phase
2), except if the Parties agree in writing on a time-extension of the
Feasibility Studies, in which case this Agreement shall terminate 90
days after the date of completion of the Feasibility Studies without
such a written decision having been passed;
(b) at any time if the Parties jointly decide not to implement the Project
(phase 2)
(c) on such other date as the Parties may mutually agree;
(d) following a material breach by a Party (the "Defaulting Party") of any
material provision of this Agreement which has not been remedied
within [**] days from the receipt by such Defaulting Party of a notice
of default sent by the other Parties, the decision of such other
Parties to terminate this Agreement;
(e) the decision by the Parties to enter into a new agreement which
explicitly supersedes this Agreement;
8.3 Withdrawal of any Party.
(a) At any time following the date of this Agreement, any Party (the
"Withdrawing Party") may withdraw from the Project in its sole
discretion provided it gives 15 days prior written notice of its
withdrawal to the other Parties (the "Non-Withdrawing Parties")
indicating the date as from which such withdrawal shall be effective.
The Non-Withdrawing Party or Parties shall be entitled to use the
rights over the Feasibility Studies together with, any document or
information prepared by the Withdrawing Party in connection with the
Project which use will be free of charge. The Non-Withdrawing Party or
Parties shall be entitled to complete the implementation of the
Project exclusive of the Withdrawing Party.
(b) Upon its withdrawal from the Project, the Withdrawing Party shall be
relieved from any obligations and liabilities to the Non-Withdrawing
Party(ies) arising out
or in connection with such withdrawal. Therefore, except otherwise
provided for in this Agreement, the Withdrawing Party will not be
bound by the Agreement from the date of its withdrawal from the
Project. However OPT shall remain bound by the Supply obligations
under Section 7.(j) above. Furthermore, each Party shall remain bound
by the confidentiality provisions stated in this Agreement and in the
Confidential Information, Inventions and Trade Secrets Agreement
attached to this Agreement as Exhibit 1, but without prejudice to the
right of the Non-Withdrawing Parties to use the information disclosed
hereunder by the Withdrawing Party for the purposes of the Project and
enlarged collaboration set forth herein.
However, the Withdrawing Party shall be obligated to pay on or prior
to the date of effectiveness of withdrawal its Participating Interest
share of External Costs for which it has become obligated to fund
hereunder. For purposes hereof, External Costs shall include all such
costs committed by the Steering Committee in accordance with this
Agreement as of the date of the Non-Withdrawing Parties' actual
receipt of the written notice of withdrawal and anticipated to be
incurred within [**] days, whether or not actually incurred as of the
date of the effectiveness of withdrawal.
In addition, should OPT withdraw from this Agreement while IBERENOVA
and/or XXX decide to implement the Project, OPT shall nevertheless
comply with its Supply Obligations toward the SPC or, in case only
either IBERENOVA or XXX decide to implement the Project, to the
Non-Withdrawing Party. This Supply will be exclusive during a period
expiring on December 31, 2008 and will be granted pursuant to the
remaining terms and conditions provided for under Section 7(j) above.
(c) The Non-Withdrawing Party or Parties shall not have any cause of
action against the Withdrawing Party acting in good faith and without
breach of this Agreement or any other fault, for damages and losses
which could directly or indirectly result from such withdrawal.
However, if the Agreement is terminated pursuant to clause 8.2(e)
(material breach), the non-defaulting Party (or Parties) may pursue
any and all remedies that may be available against the Defaulting
Party.
(d) The foregoing provisions, and specially 8.3(c) shall apply, mutatis
mutandi, in case of termination of Agreement under section 8.2(d)
(references to Withdrawing Party being understood made to the
Defaulting Party and references to the Non-withdrawing Parties to the
Non-defaulting Parties, respectively).
9. ENLARGEMENT OF THE COLLABORATION.
If either the Parties or IBERENOVA and XXX decide in writing to enlarge
their collaboration under this Agreement to the study and possible
development of additional wave energy project(s) using the Technology on
the coast of France up to [**], it is acknowledged that it should be
beneficial for the Project that XXX and IBERENOVA assumes, on an
alternative basis, the leadership in the conduct of the operations relating
to the Phases 1 and 2 of each such additional projects. Furthermore, the
Parties agree that the current Participating Interests of IBERENOVA and XXX
in the Project (as mentioned in article 4) [**].
In accordance with the above mentioned, OPT agrees to supply and install
the equipment based on the PowerBuoy System and its further improvements to
the SPC(s) created between the Parties for the implementation of these
additional Project(s), and provide the SPC(s) with assistance and
information, including operation and maintenance services, with the
sufficient scope and extension so that the SPC(s) may operate the
Project(s) as per state-of-the art standards during all its useful life
(the "Supply"). Such Supply obligations shall be exclusive for France until
31st of December 2008.
10. WARRANTY
10.1 OPT Inc hereby warrants the fulfilment by OPT of OPT's obligations under
this Agreement, so that OPT Inc undertakes to fulfil all OPT's obligations
under the Agreement, in the case that OPT does not fulfil them, immediately
upon Iberenova and/or Total's demand, being able to oppose only the
exceptions that OPT would be entitled to under this Agreement.
In particular, and for OPT's obligations of payment under the Agreement,
the Parties agrees that the guarantee will be governed by articles 2021 et
seq of the Civil Code. OPT Inc. expressly waives the benefice de discussion
and benefice de division (OPT Inc.'s rights to limit its liability and to
require execution to be first directed against OPT) as provided in articles
2021 and 2026 of the Civil Code.
Furthermore, OPT Inc undertakes not to liquidate OPT and not to allow OPT
to become bankrupt or insolvent or otherwise unable to meet its obligations
hereunder.
11. GOVERNING LAW & ARBITRATION
11.1 This Agreement shall be governed by and construed in accordance with the
French law.
11.2 Any dispute arising out of or in connection with this Agreement shall be
exclusively and finally settled under the Rules of Arbitration of the
International Chamber of Commerce then in effect (the (ICC Rules)) by
three (3) arbitrators appointed in accordance with the ICC Rules. The place
of arbitration shall be Paris (France) and the language of arbitration
shall be English.
12. LIABILITY.
12.1 No Party shall be liable to the other Party for any special, indirect or
consequential losses or damages, including but not limited to loss of
profits, revenues, contracts, opportunities, goodwill or business, arising
out of or in connection with this Agreement.
12.2 In case of a third party claim arising out of or in connection with this
Agreement, each Party shall be liable in proportion to its Participating
Interest in the Project.
13. NOTICES.
Any notice which may be or is required to be given pursuant to this
Agreement shall be in writing and may be delivered, by hand, or sent by
registered post or fax to the relevant address set out below:
XXX
0 xxxxx xx xx Xxxxxxx -- Xx Defense 6
00000 Xxxxxxxxxx, Xxxxxx
Phone (33-1) 00.00.00.00.00
Fax (33-1) 00.00.00.00.00
E-mail xxxxxx.xxxxxxxxxx@xxxxx.xxx
Attention Xx. Xxxxxx Cochevelou
IBERENOVA
Xxxxx Xxxxxxx, 0
00000 Xxxxxx, Xxxxxx
Phone (00) 00 000 00 00
Fax (00) 00 000 00 00
E-mail xxxxxxx.xxxxx@xxxxxxxxx.xx
Attention Xx. Xxxxxxx Xxxxx
OPT
Warwick Xxxxxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxxxxxx
XX00 0XX
XX
Phone (00) 00000000000
Fax (00) 00000000000
E-mail xxxxxxx@xxxxxxxxxxxxxx.xxx
Attention Mr. Xxxx Xxxxxx
OPT INC
0000 Xxxx Xxxx
Xxxxxxxxxx,
Xxx Xxxxxx 00000
XXX
Phone 0000000000
Fax 0000000000
E-mail xxxxxxx@xxxxxxxxxxxxxx.xxx
Attention Xx. Xxxxxx X. Xxxxxx
14. ASSIGNMENT.
14.1 The assignment by a Party of all or part of its Participating Interest
under this Agreement to a third party requires the prior written approval
of the other Parties.
14.2 Notwithstanding the provisions of clause 14.1 hereabove, each Party may,
without the prior written approval of the other Party, assign all or part
of its Participating Interest under this Agreement to any of its Affiliated
Companies subject however to first give written notice thereof to the other
Parties, and provided the assignee is actually in a position to fulfill all
assignor's obligations under this Agreement. Otherwise, the assignor's
guaranty shall be required.
15. INSTITUTIONAL COMMUNICATION.
If any Party within the frame of its institutional communication, wishes to
issue any public announcement or statement regarding this Agreement and/or
in connection with the Project, it shall not do so without the prior
written approval of the Steering Committee, except if it is necessary to do
so in order to comply with applicable laws, decrees, rules or regulations
of any government legal proceedings, or stock exchange, having jurisdiction
over such Party.
16. CONFIDENTIALITY.
16.1 The Parties shall keep confidential all information and data acquired,
developed or disclosed in the course of implementation of this Agreement
(hereinafter referred to as the (Confidential Information)) and shall not
disclose it to third parties or use it for other purposes other than as
provided herein except to the extent that such information and data:
(i) is, at the time of its disclosure, in the public domain; or
(ii) becomes generally available to third parties by publication or
otherwise after its disclosure, through no breach of this Agreement;
or
(iii) was lawfully in the possession of the receiving Party prior to its
disclosure, as evidenced by the written records of such Party, and
which was not acquired directly or indirectly from the other Party; or
(iv) is disclosed independently by a third party that warrants to a
good-faith Party that such disclosure does not infringe
confidentiality obligations; or
(v) is subject to any legal or judiciary obligation to disclose.
16.2 Notwithstanding the provisions of clause 16.1, the Parties shall be
entitled to disclose such Confidential Information (i) to their employees,
officers and directors and to those of their Affiliates (ii) to any
professional consultant or bank who requires these information and data for
the evaluation and implementation of the Project, subject however to the
prior execution by such consultant or bank of a confidentiality
undertaking.
16.3 The disclosure of Confidential Information by any Party does not vest the
other Party with a right of ownership on the said Confidential Information,
which is and shall remain the property of the Party who disclosed it.
16.4 The provisions of this clause 16 shall apply for the duration of this
Agreement, and for a period of [**] years after the termination of this
Agreement, howsoever caused.
16.5 With respect to the Confidential Information of technical nature disclosed
by OPT to any of the other Parties to this Agreement, the PARTIES agree to
sign the Confidential Information, Inventions and Trade Secrets Agreement
attached to this Agreement as Exhibit 1. To the extent of any conflict
between the terms of this Agreement and the terms of the Confidential
Information, Inventions and Trade Secrets Agreement, the terms of the
Confidential Information, Inventions and Trade Secrets Agreement shall
prevail.
17. MISCELLANEOUS.
17.1 No waiver by any Party of any one or more defaults by another Party in the
performance of this Agreement shall operate or be construed as a waiver of
any future defaults by the same Party, whether of a like or of a different
character. Except as expressly provided for in this Agreement, no Party
shall be deemed to have waived, released or modified any of its rights
under this Agreement.
17.2 No amendments, changes or modifications to this Agreement shall be valid
except if they are in writing and approved by the Parties.
17.3 Each of the Parties agrees to comply with, and to procure that each of
their subcontractors complies with (i) the Total and IBERDROLA HSE Policies
and (ii) the Total and IBERDROLA Codes of Conduct attached hereto.
This Agreement has been executed in four (4) originals by the duly authorised
representatives of each Party on the day and year first above written.
FOR XXX FOR IBERENOVA
/s/ Gilles Cochevelou /s/ Xxx Xxxxxxxx
------------------------------------- ----------------------------------------
Signature
Name Gilles Cochevelou
/s/ Xxxxxx Xxxxxx
----------------------------------------
Signature
Name Xxx Xxxxxxxx
Xxxxxx Xxxxxx
FOR OPT FOR OPT, INC
/s/ Xxxx Xxxxxx /s/ Xxxxxx X. Xxxxxx
------------------------------------- ----------------------------------------
Signature Signature
Name Mr. Xxxx Xxxxxx Name Xx. Xxxxxx X. Xxxxxx
EXHIBIT 1
CONFIDENTIAL INFORMATION, INVENTIONS AND TRADE SECRETS
AGREEMENT
WHEREAS representatives of Ocean Power Technologies, Limited having its
offices in Warwick, UK, or Ocean Power Technologies, Inc, having an office at
Pennington, New Jersey, USA, ("OPT" or, the "Company" hereinafter) are about to
enter into discussions with Total Energie Development SA (hereinafter "XXX") a
company existing and organized under French law, having its registered office
located in France, 0, Xxxxx xx xx Xxxxxxx, 00000 Xxxxx la Defense Cedex, and
with Iberdrola Energias Renovables II, S.A., Sociedad Unipersonal (hereinafter
"IBERENOVA"), a company existing and organised under the Spanish law, with Tax
Registration Number A-83028035, having its registered office located at [ ],
(XXX, and IBERENOVA, hereinafter, the "PARTIES"), concerning the use of certain
electrical power generation technology owned by OPT for the potential
construction and operation of power generation plant(s) based on the sea waves
energy in the coast of France (hereinafter, the "Power Plant"), and
WHEREAS it is anticipated that the discussions will be mutually beneficial
to signatories hereto, and
WHEREAS during the course of such discussions it is expected that
representatives of PARTIES will receive or have access to specifications,
designs, plans, drawings, data, prototypes, marketing plans or other technical
or business information belonging to OPT and which OPT considers to be
proprietary (hereinafter "INFORMATION"); the term INFORMATION also shall be
deemed to include all notes, analyses, compilations, studies, interpretations or
other documents prepared by PARTIES which contain, reflect or are based upon the
INFORMATION but expressly excluding those parts of such notes, analyses,
compilations, studies, interpretations or other documents or information
prepared by or on behalf of PARTIES relating to or in connection with the
analysis of waves resources, marine and coastal dynamics, performance
assessment, power output, stability of the system, environmental issues and any
other similar information furnished or obtained by the Parties in the course of
the development of the Power Plant.
WHEREAS during the course of the discussions PARTIES may develop certain
inventions, improvements or discoveries based on the INFORMATION.
NOW THEREFORE, in consideration of the mutual benefits to be derived from
the above discussions and other good and valuable consideration, receipt of
which is acknowledged, it is agreed by and between the parties hereto as
follows:
1. PARTIES shall
a. Restrict disclosure of the INFORMATION solely to those of its
employees (and those of Total SA) and consultants with a need to know
and not disclose such INFORMATION to third parties; and
b. Advise employees (including those of Total SA) and consultants who
receive the INFORMATION of the obligation of confidentiality hereunder
and take steps, which may include the execution of confidentiality
contracts, in order to mitigate the risk of employees and consultants
breaching this Confidential Information, Inventions and Trade Secrets
Agreement (hereinafter "Agreement"), and
c. Use and require employees and consultants to use the same degree of
care to protect the INFORMATION as is used with PARTIES' own
proprietary INFORMATION, and
d. Use INFORMATION solely for the development by OPT of OPT wave power
projects in France.
2. Notwithstanding anything to the contrary herein, PARTIES shall have no
obligation to preserve the confidentiality of any INFORMATION as set forth
in clause 16.1 of the accompanying Contract for the Develoment and
Application of a Sea Wave Energy Generation System in France.
3. PARTIES and OPT agree that any company of the group of companies of each of
the PARTIES, including any which are directly or indirectly controlled by
such companies, and any employee and consultant of such companies, will be
considered as third party for the purposes of the confidentiality
obligations above-stated. Therefore, disclosure of INFORMATION to the third
parties before-mentioned will require the approval of OPT. However,
INFORMATION could be disclosed to Total SA pursuant to this Agreement.
4. Upon termination of this Agreement, PARTIES will exercise reasonable
efforts to return all INFORMATION received in tangible form and all copies
thereof to OPT.
5. Nothing contained in this Agreement shall be construed as granting or
conferring any rights by license or otherwise in any INFORMATION disclosed
or limiting the rights and obligations of the parties under the Contract.
6. For the avoidance of doubt, nothing in this Agreement shall entitle any of
the PARTIES or third parties to make or use, or have made or have used by
any third parties, any invention derived from INFORMATION.
7. Nothing in this Agreement shall prevent the PARTIES and/or third parties
from using in any way they see fit, their general knowledge, skills and
experience and any tools, skills and techniques acquired or used by them
(together "PARTIES' GENERAL KNOWLEDGE") in the performance of this
Agreement. Such PARTIES' GENERAL KNOWLEDGE shall not include INFORMATION or
any tools, skills and techniques derived from INFORMATION.
8. This Agreement shall be governed and construed in accordance with French
Law. Any disputes between OPT and the Parties in connection with this
Agreement and, in particular, concerning its interpretation, validity,
compliance and termination (including the validity and compliance with this
Clause) shall be submitted to arbitration of law, that shall be settled by
three arbitrators pursuant to the Arbitration Regulations of the
International Chamber of Commerce. The arbitration proceedings will be held
in Paris, in English. The nominating authority will be the Chairman of the
ICC. The Parties agree to comply the arbitration award as soon as it is
issued.
9. In the event of a breach of this Agreement by PARTIES, PARTIES understands
and agrees that OPT may suffer irreparable harm and will therefore be
entitled to injunctive relief to enforce this Agreement.
10 This Agreement shall become effective on the date of execution and shall be
in force for a period of five years from the date of execution.
/s/ Gilles Cochevelou
-------------------------------------
TOTAL ENERGIE DEVELOPMENT
/s/ Xxx Xxxxxx Xxxxxxxx Xxxxxxx
-------------------------------------
/s/ Xxxxxx Xxxxxx Xxxx
-------------------------------------
IBERENOVA
Represented by
Xxx. Xxx Xxxxxx Xxxxxxxx Xxxxxxx and
Xx. Xxxxxx Xxxxxx Xxxx
/s/ Xxxx Xxxxxx
-------------------------------------
Ocean Power Technologies Limited
Represented by Xxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Ocean Power Technologies, Inc.
Represented by Xx. Xxxxxx X. Xxxxxx
