EXHIBIT 10.9
AMENDED AND RESTATED
VOTING AND RIGHT OF FIRST REFUSAL AGREEMENT
AMENDED AND RESTATED VOTING AND RIGHT OF FIRST REFUSAL AGREEMENT dated as
of April 18, 2005, by and among Ocean Power Technologies, Inc., a New Jersey
corporation (the "Company") (as to paragraphs 1.1, 1.7, 1.9, 2.1 and 2.2 only),
Xxxxxx X. Xxxxxx ("Xx. Xxxxxx") and Xxxxxx Xxxxx ("Xx. Xxxxx").
WITNESSETH:
WHEREAS, Xx. Xxxxxx and Xx. Xxxxx were parties to that certain Voting and
Right of First Refusal Agreement, dated September 27, 2003 (the "Prior
Agreement"), granting Xx. Xxxxxx certain voting and other rights with respect to
Xx. Xxxxx' holdings of the Company's common stock, no par value per share (the
"Common Stock"); and
WHEREAS, as of the date hereof, Xx. Xxxxx is the record and beneficial
owner of 6,425,746 shares of the Common Stock (the "Current Shares");
WHEREAS, pursuant to the Prior Agreement for a limited period of time, Xx.
Xxxxx formerly desired to irrevocably constitute and appoint Xx. Xxxxxx as her
lawful agent and proxy to vote all of the Current Shares held by Xx. Xxxxx, as
well as any other shares resulting from a stock split, reverse stock split,
stock dividend, combination, reclassification or conversion of such shares, or
any other increase or decrease in the number of such shares effected without the
receipt of further consideration by the Company (all such shares, together with
the Current Shares, being referred to herein collectively as the "Shares");
WHEREAS, Xx. Xxxxxx and Xx. Xxxxx intend to amend certain provisions of the
Prior Agreement to provide for, among other things, an extension of the term of
the agreement and to release Xx. Xxxxx from the voting, transfer and all other
restrictions provided in the Prior Agreement relating to fifty percent (50%)
(3,212,873) of the Shares (the "Released Shares");
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Voting and Transfer Rights.
1.1 With respect to fifty percent (50%) (3,212,873) of the Shares (the
"Proxy Shares"), Xx. Xxxxx hereby irrevocably constitutes and appoints Xx.
Xxxxxx as her true and lawful agent and proxy, with absolute discretion and
authority to: (a) represent, vote, give consents and in all other ways to act in
her place and stead, on any matter at any meeting of the shareholders (whether
regular, general, special or otherwise) of the Company to the same extent as Xx.
Xxxxx could if personally present at any such meeting; and (b) express consent
or dissent to any and all corporate action in writing without a meeting on
behalf of Xx. Xxxxx. Xx. Xxxxxx hereby releases his existing proxy and all other
rights and restrictions granted under the Prior Agreement related to the
Released Shares. Xx. Xxxxx, or any successor holder, shall be entitled to vote
the Released Shares on any matter duly brought before the Company's shareholders
and
Xx. Xxxxx shall be free to transfer any or all of the Released Shares at her
discretion relating to the proxy and contractual transfer restrictions. The
Company shall use commercially reasonable efforts to promptly remove the
restrictive legends (relating to the contractual voting rights and transfer
restrictions granted to Xx. Xxxxxx) upon all certificates evidencing the
Released Shares.
1.2 In furtherance of the foregoing, Xx. Xxxxx hereby acknowledges that she
has executed an Irrevocable Proxy, in the form attached hereto as Exhibit A (the
"Irrevocable Proxy"), granting to Xx. Xxxxxx an irrevocable proxy pursuant to
the provisions of Section 14A:5-19 of the New Jersey Business Corporation Act to
vote at meetings, or execute and deliver written consents or otherwise act with
respect to, all of the Proxy Shares owned by Xx. Xxxxx as fully, to the same
extent, and with the same effect as Xx. Xxxxx might or could do under any
applicable laws or regulations governing the rights and powers of shareholders
of a New Jersey corporation. Any prior proxy executed by Xx. Xxxxx in favor of
Xx. Xxxxxx or any other party is hereby terminated.
1.3 Xx. Xxxxx agrees that Xx. Xxxxxx (a) may vote the Proxy Shares solely
in his own discretion and in his own best interests as if he was the sole owner
of the Proxy Shares, and (b) shall not have any fiduciary or other duty to Xx.
Xxxxx arising solely with respect to the voting of the Proxy Shares. Except as
provided herein, Xx. Xxxxxx shall not have any liability whatsoever to Xx. Xxxxx
under the terms and provisions of this Agreement or the proxy delivered
simultaneously herewith by Xx. Xxxxx.
1.4 The irrevocable proxy provided for in this Agreement is a proxy related
to the Proxy Shares only and only of the right of a shareholder to vote for or
against, or consent or dissent from, matters submitted to a vote of
shareholders, and does not and shall not be deemed to transfer, waive or
otherwise limit any other right or powers accruing to the shareholder.
1.5 Xx. Xxxxx hereby acknowledges and affirms that this proxy is coupled
with an interest and is irrevocable until April 18, 2008 or sooner termination
of this Agreement, at which point, it shall automatically expire without the
need for further documentation, although Xx. Xxxxxx agrees to promptly execute
and deliver to Xx. Xxxxx any documentation evidencing such termination as
reasonably requested by Xx. Xxxxx.
1.6 Xx. Xxxxx hereby represents and warrants that she is the legal and
beneficial owner of the Current Shares.
1.7 The parties hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments or documents as shall be
necessary or desirable in order to carry out the intent and purposes of this
Agreement including, without limitation, the execution of any such documents
required to be executed by the Company's stock transfer agent.
1.8 THIS AMENDED AND RESTATED VOTING AND RIGHT OF FIRST REFUSAL AGREEMENT
AND THE ATTACHED PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE
AGAINST ANY PERMITTED DONEE, TRANSFEREE OR ASSIGNEE OF THE SHARES IN ACCORDANCE
WITH THEIR TERMS AS TO THE PROXY SHARES UNTIL APRIL 18, 2008.
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1.9 Upon execution of this Agreement, the Company shall be required to
imprint or otherwise place, on certificates representing the Proxy Shares the
following legend (the "Legend"):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A IRREVOCABLE
PROXY AND THE TERMS AND CONDITIONS OF AN AMENDED AND RESTATED VOTING AND
RIGHT OF FIRST REFUSAL AGREEMENT (THE "VOTING AGREEMENT') WHICH PLACES
CERTAIN RESTRICTIONS ON THE VOTING OF THE SHARES REPRESENTED HEREBY. ANY
PERSON ACCEPTING ANY INTEREST IN SUCH SHARES SHALL BE DEEMED TO AGREE TO
AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SUCH PROXY AND VOTING
AGREEMENT. A COPY OF SUCH VOTING AGREEMENT WILL BE FURNISHED TO THE RECORD
HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE
COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS."
The Company agrees that, while Xx. Xxxxx is bound by the terms of this
Agreement, it will not remove, and will not permit to be removed, the Legend
from any certificate representing Xx. Xxxxx' Proxy Shares and will place or
cause to be placed the Legend on any new certificate issued to represent the
Proxy Shares theretofore represented by a certificate carrying the Legend. Once
Xx. Xxxxx is no longer bound by this Agreement, the Company shall reasonably
promptly remove the restrictive legend relating to the contractual restrictions
set forth herein from Xx. Xxxxx' certificate(s) representing the Proxy Shares.
The Company will reasonably promptly remove the existing legend relating to the
contractual restrictions from the Released Shares.
2. Restrictions on Transfer.
2.1 Any sale, transfer or other disposition, whether voluntarily or by
operation of law ("Transfer") of any of the Proxy Shares by Xx. Xxxxx, other
than according to the terms of this Agreement, shall be void and transfer no
right, title, or interest in or to any of such Proxy Shares to the purported
transferee.
2.2 An original copy of this Agreement, duly executed by each of the
parties hereto, shall be delivered to the Secretary of the Company and
maintained at the principal executive office of the Company and made available
for inspection by any person requesting it.
3. Offer of Sale: Notice of Proposed Sale. If Xx. Xxxxx desires to Transfer any
of her Proxy Shares, or any interest in such Proxy Shares, Xx. Xxxxx shall first
deliver written notice of her desire to do so (the "Notice") to Xx. Xxxxxx and
the Company, in the manner prescribed in Section 7.4 of this Agreement. The
Notice must specify: (a) the name and address of the party to which Xx. Xxxxx
proposes to sell or otherwise dispose of the Proxy Shares or an interest in the
Proxy Shares (the "Offeror"), (b) the number of Proxy Shares Xx. Xxxxx proposes
to sell, transfer or otherwise dispose of (the "Offered Shares"), (c) the
consideration per Share to be delivered to Xx. Xxxxx for the proposed sale,
transfer or disposition, and (d) all other material terms and conditions of the
proposed transaction. For purposes of clarity, Xx. Xxxxx shall be entitled to
transfer the Released Shares free of restriction by this Agreement or any
predecessor agreement between the parties, subject to applicable securities and
other laws.
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4. Xx. Xxxxxx'x Option to Purchase.
4.1 Xx. Xxxxxx shall have the first option to purchase all or any part of
the Offered Shares for the consideration per share and on the terms and
conditions specified in the Notice. Xx. Xxxxxx must exercise such option, no
later than 30 days (the "Option Period") after such Notice is deemed under
Section 7.4 hereof to have been delivered to it, by written notice to Xx. Xxxxx.
4.2 In the event Xx. Xxxxxx duly exercises his option to purchase all or
part of the Offered Shares, the closing of such purchase shall take place at the
offices of the Company on the date five days after the expiration of the Option
Period.
4.3 To the extent that the consideration proposed to be paid by the Offeror
for the Offered Shares consists of property other than cash or a promissory
note, the consideration required to be paid by Xx. Xxxxxx under Sections 3 and 4
hereof may consist of cash equal to the value of such property, as determined in
good faith by agreement of Xx. Xxxxx and Xx. Xxxxxx acquiring such Offered
Shares.
5. Failure to Fully Exercise Option. If Xx. Xxxxxx does not elect to purchase
the full number of Offered Shares, Xx. Xxxxx shall be entitled to sell to the
Offeror, according to the terms set forth in the Notice, that number of her own
Shares which equals the difference between the number of Shares desired to be
purchased by the Offeror and the number of Shares Xx. Xxxxxx purchases pursuant
to Section 4. If Xx. Xxxxx wishes to Transfer any such Shares at a price per
Share which differs from that set forth in the Notice, upon terms different from
those previously offered to Xx. Xxxxxx, or more than 60 days after the
expiration of the Option Period, then, as a condition precedent to such
transaction, such Shares must first be offered to Xx. Xxxxxx on the same terms
and conditions as given the Offeror, and in accordance with the procedures and
time periods set forth above.
6. Termination and Exceptions.
6.1 This Agreement and all rights of Xx. Xxxxxx and restrictions upon Xx.
Xxxxx hereunder and the Proxy Shares shall terminate on the earlier of the
following: (a) April 18, 2008; (b) the termination thereof by the written
consent of Xx. Xxxxx and Xx. Xxxxxx; (c) the death of Xx. Xxxxxx; (d) the
permanent mental incapacity of Xx. Xxxxxx (determined by the consensus of three
qualified physicians, one of whom shall be selected by Xx. Xxxxxx'x family, one
of whom shall be selected by Xx. Xxxxx and the third physician shall be selected
by the other two physicians); (e) the consummation of an initial public offering
by the Company of its Common Stock pursuant to an effective Registration
Statement filed with the U.S. Securities and Exchange Commission with gross
proceeds to the Company of at least $25 million; (f) the consummation of the
sale of all, or substantially all, of the assets or stock of the Company; and
(g) the sale by Xx. Xxxxxx to an unaffiliated third party of more than 3,212,873
shares of the Company's Common Stock, adjusted for stock splits and similar
events.
6.2 Transfer Restriction Exception. Notwithstanding Section 3 hereof,
during the term of this Agreement, in the event Xx. Xxxxxx sells more than
2,000,000 shares (as adjusted for stock splits and similar events) of his
current holdings (the "Threshold Amount"), Xx. Xxxxx
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shall be entitled to sell one share for each share sold by Xx. Xxxxxx in excess
of the Threshold Amount free of the transfer restrictions set forth herein. Xx.
Xxxxxx shall provide Xx. Xxxxx with reasonably prompt notice of each sale he
makes.
7. General.
7.1 Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
7.2 Specific Performance. In addition to any and all other remedies that
may be available at law in the event of any breach of this Agreement, each party
shall be entitled to specific performance of the agreements and obligations of
the Company, Xx. Xxxxx and Xx. Xxxxxx hereunder and to such other injunctive or
other equitable relief as may be granted by a court of competent jurisdiction.
7.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New Jersey (without reference
to the conflicts of law provisions thereof).
7.4 Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be deemed delivered (i) three
business days after being sent by registered or certified mail, return receipt
requested, postage prepaid or (ii) one business day after being sent via a
reputable nationwide overnight courier service guaranteeing next business day
delivery, in each case to the intended recipient as set forth below:
(a) If to the Company, at 0000 Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, Attention: President, or at such other address as may have been
furnished in writing by the Company to the other parties hereto, with a
copy to Xxxxxx, Xxxxx & Bockius LLP, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000, Attention: Xxxxxx Xxxxxxx, Esq.;
(b) If to Xx. Xxxxxx, at c/o Ocean Power Technologies, Inc. 0000 Xxxx
Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, or at such other address as may have
been furnished in writing by Xx. Xxxxxx to the other parties hereto; or
(c) If to Xx. Xxxxx, at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000,
or at such other address as may have been furnished in writing by Xx. Xxxxx
to the other parties hereto, with a copy to Xxxxx, Xxxxxxx & Xxxxxxx, PC,
000 Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx X.
Xxxxxxx, Esq.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
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7.5 Complete Agreement; Termination of Prior Agreement. This Agreement
constitutes the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings relating to such subject matter, including without limitation,
the Prior Agreement which is expressly superseded by this Agreement and is of no
further force and effect.
7.6 Amendments and Waivers. This Agreement may only be amended or
terminated and the observance of any term of this Agreement may be waived with
respect to all parties to this Agreement (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company, Xx. Xxxxxx, and Xx. Xxxxx. No waivers of or exceptions to any term,
condition or provision of this Agreement, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
7.7 Counterparts; Facsimile Signatures. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and
all of which together shall constitute one and the same document. This Agreement
may be executed by facsimile signatures.
7.8 Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their successors and assigns and shall inure to the benefit
of the estate, heirs, executors, administrators and personal representatives of
Xx. Xxxxx.
7.9 Additional Parties. Persons or entities that, after the date hereof,
purchase Shares or are transferred Shares pursuant to a valid Transfer hereunder
shall become parties to this Agreement by executing and delivering a counterpart
signature page and execute the attached Irrevocable Proxy, and shall be deemed
to be subject to the voting restrictions and transfer restrictions set forth in
Sections 1 and 2 hereunder.
7.10 Representations. Xx. Xxxxxx represents that he understands and
acknowledges that the shares of Common Stock of the Company which may be
distributed to him, pursuant to this Agreement have not been registered under
the Securities Act of 1933(the "Act") or any other act and have been issued by
reason of specific exemption for the Act, and various state securities laws,
which exemptions depend upon, among other things, the bona fide nature of the
undersigned's representations as expressed herein.
The undersigned represents that he understands and acknowledges that the
shares of common stock of the Company must be held indefinitely unless they are
subsequently registered under the Act or any exemption from said registration is
available, and that there is not a market for these shares and that none may be
developed in the future. The undersigned represents that he is receiving or
acquiring the shares of common stock of the Company for investment for its
account only, not with a view to, or for resale in connection with a
"distribution" within the meaning of the Act.
The undersigned represents that the certificate representing the shares of
common stock of the Company shall be stamped or otherwise imprinted with a
legend in the following form, in addition to any legend required under
applicable state law:
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"These securities have not been registered under the Securities Act of
1933, or any state securities laws. They may not be sold or offered for sale in
the absence of an effective registration statement as to the securities under
said Act and any applicable state securities laws or an opinion of counsel
satisfactory to the Company that such registration is not required."
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Voting and Right of First Refusal Agreement to be executed as of the
date first above written.
OCEAN POWER TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: C.F.O.
[as to paragraphs 1.1, 1.7, 1.9,
2.1 and 2.2 only]
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx Xxxxx
---------------------------------------
Xxxxxx Xxxxx
EXHIBIT A
IRREVOCABLE PROXY
The undersigned shareholder of Ocean Power Technologies, Inc., a New Jersey
corporation (the "Company"), hereby irrevocably constitutes and appoints Xxxxxx
X. Xxxxxx ("Xx. Xxxxxx") her true and lawful agent and proxy, with absolute
discretion and authority to: (a) represent, vote, give consents and in all other
ways to act in her place and stead, on any matter at any meeting of the
shareholders (whether regular, general, special or otherwise) of the Company to
the same extent as the undersigned could if personally present at any such
meeting, and (b) express consent or dissent to any and all corporate action in
writing without a meeting on behalf of the undersigned, with respect to all
shares of the Common Stock of the Company which the undersigned is now entitled
to vote.
This Irrevocable Proxy is issued under and subject to the terms of an
Amended and Restated Voting and Right of First Refusal Agreement dated as of the
date hereof entered into by and among the Company, Xx. Xxxxxx and Xxxxxx Xxxxx,
and shall terminate upon the earlier of: (a) April 18, 2008; (b) the termination
thereof by the written consent of Xx. Xxxxx and Xx. Xxxxxx; (c) the death of Xx.
Xxxxxx; (d) the permanent mental incapacity of Xx. Xxxxxx (determined by the
consensus of three qualified physicians, one of whom shall be selected by Xx.
Xxxxxx'x family, one of whom shall be selected by Xx. Xxxxx and the third
physician shall be selected by the other two physicians); (e) the consummation
of an initial public offering by the Company of its Common Stock pursuant to an
effective Registration Statement filed with the U.S. Securities and Exchange
Commission with gross proceeds to the Company of at least $25 million; (f) the
consummation of the sale of all, or substantially all, of the assets or stock of
the Company; and (g) the sale by Xx. Xxxxxx to an unafflliated third party of
more than 3,212,873 shares of the Company's Common Stock, adjusted for stock
splits and similar events. The undersigned hereby acknowledges that this proxy
shall be irrevocable and is coupled with an interest.
IN WITNESS WHEREOF, the parties hereto have caused this Irrevocable Proxy
to be executed as of the 18th day of April, 2005.
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Number of Proxy Shares of Common Stock
Held by Xx. Xxxxx:
3,212,873
