EXHIBIT 10.15
AQUAMAX-XXXXXX-OCEAN POWER LICENSING AGREEMENT
THIS AGREEMENT ("Agreement"), made on the Effective Date as defined
herein, is by and among Ocean Power Corporation, a Delaware corporation having a
principal place of business at 5000 Xxxxxx X. Xxxxxxx Xxxxxxx, Xx Xxxxxx Xxxxx,
Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America ("OCEAN POWER"), Aquamax
(International) Holding B.V., a Dutch corporation having a principal place of
business at Locatellikade 1, Parnassustoren, 1076 AZ Amsterdam, X.X. Xxx 00000,
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx ("AQUAMAX"), and Xxxxxx Corporation N.V., a
Netherlands Antilles Corporation having a principal place of business at World
Trade Center Curacao, Xxxx XX.XX.00-00, Xxxxxxxxx Xxx, Xxxxxxxxxx, Xxxxxxx,
Xxxxxxxxxxx Antilles ("XXXXXX"). OCEAN POWER, AQUAMAX and XXXXXX may each be
referred to herein as a "Party" and collectively as the "Parties."
WHEREAS, OCEAN POWER, AQUAMAX and XXXXXX own all rights, title and
interest in and to certain patented and unpatented technology related to water
treatment;
WHEREAS, OCEAN POWER desires to obtain from AQUAMAX and XXXXXX, and
AQUAMAX and XXXXXX desire to grant to OCEAN POWER certain exclusive rights in
and to their technology for certain applications; and
WHEREAS, AQUAMAX desires to obtain from OCEAN POWER, and OCEAN POWER
desires to grant to AQUAMAX certain exclusive rights in and to its technology
for certain applications;
NOW, THEREFORE, in consideration of the terms, conditions, and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
Article 1
Definitions
As used in this Agreement, the following terms have the meanings set
out below and as further defined elsewhere in this Agreement.
1.1 "Affiliate(s)" means any entity:
a) in which AQUAMAX, XXXXXX or OCEAN POWER controls, or is under
common control, or is directly or indirectly owned by or under
common ownership to the extent of over fifty (50%) or more of
the voting shares, including shares owned beneficially by a
Party; or
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b) which owns or controls AQUAMAX, XXXXXX or OCEAN POWER.
1.2 "AQUAMAX Field" means the OCEAN POWER Patents and the Improvements that
may be used by AQUAMAX pursuant to the terms and conditions of this
Agreement with mechanical or thermal vapor compression distillation
application(s) in which the quantity of water processed in the
application(s) is less than one thousand cubic meters per day
(1,000m3/day).
1.3 "AQUAMAX-XXXXXX Patent(s)" means all patents issued in the United
States or any foreign country, or any applications for patents,
including any patents of addition, utility models, utility patents,
design patents, re-issues, divisions, continuations, or the like: (i)
owned by AQUAMAX and/or XXXXXX on the Effective Date or during the term
of this Agreement and (ii) to which AQUAMAX and/or XXXXXX has/have
rights during the term of this Agreement that may be granted,
transferred or otherwise conveyed to OCEAN POWER without violating the
terms of any obligations with respect to third parties. A current list
of AQUAMAX-XXXXXX Patents is attached hereto and incorporated herein as
Schedule A.
1.4 "Aquamax Mechanical Vapor Compression Technology" means any
distillation apparatus claimed in any AQUAMAX-XXXXXX Patent which
comprises a mechanical compressor (as distinct from a thermal
compressor).
1.5 "Aquamax Multi Effect Technology" means any distillation apparatus
claimed in any AQUAMAX-XXXXXX Patent: (a) which incorporates more than
one evaporator; and (b) in which the vapor from one evaporator is used
as a source of heat for another evaporator incorporated in the same
distillation apparatus.
1.6 "Desalination" shall have the same meaning as is set forth in Article 1
("Definitions") of the Hadwaco License (defined below).
1.7 "Effective Date" of this Agreement is the date of complete execution by
the Parties of the signature page of this Agreement. If this Agreement
is not executed by all parties on the same date, the Effective Date
shall be the date upon which the last party to execute the Agreement
does so.
1.8 "Fields" means the AQUAMAX Field and the OCEAN POWER Field.
1.9 "Hadwaco License" means that license agreement between AQUAMAX
(formerly known as Anthias (International) Holdings B.V.) and Hadwaco
Ltd. Oy, executed on October 18, 1994 and November 1, 1994, a copy of
which is attached hereto as Exhibit 1.9.
1.10 "Improvements" means any Technical Information which:
a) reduces production costs, improves performance, increases
service life, increases marketability, or improves the
appearance of Licensed Products;
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b) any modification to Licensed Products which comes within the
scope of one or more claims of any of the Patents;
c) any product, apparatus, or process which is similar to,
competitive to, a substitute or alternative for, or
supplements or complements Licensed Products;
d) any invention or discovery of any new apparatus or method for
producing Licensed Products, or
e) any new product which may be produced as Licensed Products.
1.11 "Licensed Product(s)" means any product(s) practicing the Patents
and/or Improvements in the AQUAMAX Field or the OCEAN POWER Field, as
the case may be, pursuant to the terms and conditions of this
Agreement.
1.12 "LICENSORS" means AQUAMAX and/or XXXXXX.
1.13 "OCEAN POWER Field" means the AQUAMAX-XXXXXX Patents that may be used
by OCEAN POWER pursuant to the terms and conditions of this Agreement
with mechanical or thermal vapor compression distillation or
desalination application(s) in which the quantity of water processed in
the application(s) is equal to or exceeds one thousand cubic meters per
day (1,000m3/day).
1.14 "OCEAN POWER Patent(s)" means all patents issued in the United States
or any foreign country, or any applications for patents, including any
patents of addition, utility models, utility patents, design patents,
re-issues, divisions, continuations, or the like: (a)(i) owned by OCEAN
POWER on the Effective Date or during the term of this Agreement, or
(a)(ii) to which OCEAN POWER has rights during the term of this
Agreement that may be granted, transferred or otherwise conveyed to
AQUAMAX without violating the terms of any obligations with respect to
third parties. A current list of applicable OCEAN POWER Patents is
included with Schedule B, which is attached hereto and incorporated
herein.
1.15 "Patents" means the OCEAN POWER Patent(s) and the AQUAMAX-XXXXXX
Patent(s).
1.16 "Technical Information" means inventions, trade secrets, confidential
information, and know-how applicable within the Fields on the Effective
Date or during the term of this Agreement, which the Parties have the
legal right to convey. Technical Information includes, but is not
limited to, research, engineering and manufacturing information,
information with respect to environmental and safety requirements,
analytical procedures and techniques, operating procedures, maintenance
practices, design information on manufacturing facilities and
equipment, machinery and equipment specifications, product test
methods, drawings, product production processes, computer files,
product information and other general information related to Licensed
Product(s).
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Article 2
Grant of Rights
2.1 Principal Rights Licensed to OCEAN POWER: LICENSORS hereby grant to
OCEAN POWER the exclusive, worldwide right and license to make, have
made, use, distribute, install, offer to sell and sell Licensed
Products within the OCEAN POWER Field for the term of this Agreement
(including the right to sub-license the rights granted to OCEAN POWER
herein). In order to avoid any doubt, the Parties acknowledge and agree
that LICENSORS are not licensing any rights in and to the:
(i) Aquamax Multi Effect Technology; and
(ii) the Aquamax Mechanical Vapor Compression Technology for
evaporators in which the quantity of water processed is less
than one thousand cubic meters per day (1,000m3/day).
2.2 Principal Rights Licensed to AQUAMAX: OCEAN POWER hereby grants to
AQUAMAX the exclusive, worldwide right and license to make, have made,
use, distribute, install, offer to sell and sell Licensed Products
within the AQUAMAX Field for the term of this Agreement. This license
includes the right to sub-license the rights granted to AQUAMAX herein,
subject to OCEAN POWER's prior written approval, which OCEAN POWER may
or may not grant in its sole discretion, but which approval OCEAN POWER
may not unreasonably withhold.
Article 3
Parts
3.1 OCEAN POWER, its Affiliates and licensees will have the right to
purchase from AQUAMAX and/or XXXXXX parts for the Licensed Products
(including without limitation plastic heat exchangers) if available for
delivery anywhere in the world at prices to be negotiated between the
Parties, which price shall in no event exceed AQUAMAX's and/or XXXXXX'x
current lowest quoted sales prices. OCEAN POWER will regard AQUAMAX as
a preferred supplier for plastic heat exchangers for so long as
reasonable standards for quality, delivery, and price are met by
AQUAMAX.
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Article 4
Term of Agreement
4.1 This Agreement shall become effective as of the Effective Date and
shall continue in effect for a period of ten (10) years from the
Effective Date.
4.2 This Agreement may be terminated by OCEAN POWER or LICENSORS for the
other's uncured default under Paragraph 5.1 of this Agreement.
4.3 Upon termination of this Agreement, by expiration or otherwise, all
licenses, rights, privileges and obligations hereunder shall cease and
terminate except that the licenses and rights granted under Article 2
hereof shall continue as to all Licensed Products manufactured, or
actually in manufacture, during the term of this Agreement by the
Parties or by any of their Affiliates or licensees, for the full term
of the Patent(s) and life of the Licensed Products.
Article 5
Default
5.1 Default: A Party will be deemed in default under this Agreement if a)
the Party fails to pay any amount due and payable under this Agreement
within thirty (30) days after written notice that the same has become
due and payable; b) the Party becomes insolvent, bankrupt, or any of
its assets are seized or placed in trust for the benefit of creditors
and such insolvency, bankruptcy or seizure is not dissolved or cured in
sixty (60) days; or c) the Party fails to perform any other obligation
required to be performed by it under this Agreement or to cure, or
begin to effect a cure for any such failure, within thirty (30) days
after written notice from the other Party that the time herein provided
for such performance has passed.
5.2 Remedy for Default: OCEAN POWER and LICENSORS may pursue any remedy
under this Agreement or otherwise available, based on the default of
the other.
Article 6
Remuneration
6.1 Advance & Option: AQUAMAX acknowledges receipt of a payment of one
hundred thousand United States Dollars (US$100,000.00) from OCEAN POWER
as a non-refundable advance under this Agreement and as payment for an
option by OCEAN POWER to enter into this license agreement with AQUAMAX
for the AQUAMAX-XXXXXX Patent(s) and Improvements in the Field.
6.2 AQUAMAX Remuneration: In consideration for the licenses granted to
OCEAN POWER under Section 2.1, and the other terms and conditions of
this Agreement, OCEAN POWER will pay a fixed fee of four million United
States Dollars (US$4,000,000.00) to AQUAMAX as follows:
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Payments Amount Due Date
============================================================================================================
Payment 1 US$100,000.00 Paid per Section 6.1
------------------------ --------------------------------- -------------------------------------------------
Payment 2 US$300,000.00 Upon full execution and delivery of this
Agreement
------------------------ --------------------------------- -------------------------------------------------
Payment 3 US$1,600,000.00 Upon completion of the private placement of
OCEAN POWER CORPORATION stock (which is
expected to be an institutional private
placement anticipated to take place, subject to
regulatory approval, on or about 10/31/2000)
however, in any event, no later than 12/31/2000
------------------------ --------------------------------- -------------------------------------------------
Payment 4 US$2,000,000.00 No later than 12/31/2000
============================================================================================================
In further consideration of the licenses granted to OCEAN POWER under
Section 2.1, and the other terms of this Agreement, OCEAN POWER shall
issue six hundred thousand (600,000) shares of OCEAN POWER common stock
to XXXXXX as follows:
a) Within ten (10) days of the Effective Date, OCEAN POWER shall
issue and deliver to XXXXXX two hundred thousand (200,000)
shares of OCEAN POWER common stock;
b) OCEAN POWER shall issue and deliver to XXXXXX two hundred
thousand (200,000) shares of common stock of OCEAN POWER upon
the payment by OCEAN POWER to AQUAMAX of Payment 3, referred
to above, in the amount of one million, six hundred thousand
United States Dollars (US$1,600,000.00), which payment shall
be made by OCEAN POWER upon completion of the private
placement of OCEAN POWER CORPORATION stock (which is expected
to be an institutional private placement anticipated to take
place, subject to regulatory approval, on or about October 31,
2000) however, in any event, no later than December 31, 2000.
c) OCEAN POWER shall issue and deliver to XXXXXX two hundred
thousand (200,000) shares of common stock of OCEAN POWER upon
the payment by OCEAN POWER to AQUAMAX of Payment 4, referred
to above, in the amount of two million United States Dollars
(US$2,000,000.00), which payment shall be made no later than
December 31, 2000.
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All common stock of OCEAN POWER issued to XXXXXX under this Agreement
is issued without any representation or warranty whatsoever, and shall
bear the following legend:
This common stock has not been registered under the Securities
Act of 1933 of the United States of America, has been sold in
reliance upon Regulation S (Rule 901 through Rule 905 and
preliminary notes) promulgated under said Act and shall be
transferred only, and the issuer is required to refuse to
register any transfer of the common stock not made, in
accordance with the requirements of said Regulation, pursuant
to registration under said Act or pursuant to an exemption
from the registration requirements of said Act. This common
stock shall not be offered or sold in the United States of
America, its territories and possessions, or to a "U.S.
Person" as defined in said Regulation, during the "restricted
period" of one year from the issue date of the common stock.
Hedging transactions involving these securities may not be
conducted unless in compliance with said Act.
XXXXXX recognizes that the common stock of OCEAN POWER issued pursuant
to this Agreement has not been registered under the Securities Act of
1933 of the United States of America, and further acknowledges receipt
of copies of Rules 901 through 905, inclusive, of Regulation S
promulgated under the Securities Act of 1933 of the United States of
America.
6.3 Wire Transfer: Payment shall be made by wire transfer payable to
AQUAMAX's account in the bank identified below or as otherwise
requested by AQUAMAX in writing:
Name of Bank: ABN AMRO BANK N.V.
Account No.: 576789119
Address of Bank: Xxxxxxx 000
0000 XX, Xxxxxxxxx, Xxx Xxxxxxxxxxx
Account Name: Aquamax (International) Holdings B.V.
6.4 OCEAN POWER Remuneration: In consideration for the licenses granted to
AQUAMAX under Section 2.2, and the other terms and conditions of this
Agreement, LICENSORS will pay to OCEAN POWER certain royalties on the
Licensed Product(s) to be produced by or made for LICENSORS, or such
other remuneration as the Parties may agree to in good faith on most
favored nation terms, provided, however, that LICENSORS will pay OCEAN
POWER fifty percent (50%) of any license royalty or amount(s) of a
similar nature LICENSORS receive from any third party under a
sub-license to make, use, install, lease and/or sell Licensed
Product(s) to the extent that such amounts are attributable to OCEAN
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POWER Patents or Improvements, as the Parties shall agree to in good
faith. Where LICENSORS enter into an agreement or other arrangement
with a third party that includes such a sub-license without
negotiating, or before completing negotiations, with OCEAN POWER as to
the appropriate amount OCEAN POWER shall receive, it will be presumed
that the amount is completely attributable to OCEAN POWER Patents
and/or Improvements and LICENSORS shall pay-over to OCEAN POWER fifty
percent (50%) of any amount LICENSORS receive from such third party
within thirty (30) days of AQUAMAX's or XXXXXX'x receipt of such
license royalty or amount(s) of a similar nature.
Article 7
Confidentiality of Information
7.1 LICENSORS and OCEAN POWER each acknowledge that, in the course of
performing their respective obligations hereunder, they will obtain or
come in contact with confidential information, including without
limitation Technical Information, of the other. LICENSORS and OCEAN
POWER shall:
a) use the other's confidential information only in connection
with fulfilling such Party's obligations under this Agreement.
Officers, employees, agents or independent contractors of
OCEAN POWER or LICENSORS will be given access to the
confidential information on a need to know basis. Each shall
obtain an agreement in a form satisfactory to the other, from
each such person to whom such disclosure is made pursuant to
which such person will agree to be bound by the provisions of
this Article 7, including, but not limited to, any third
parties a Party will have make any part for the Licensed
Products. Each hereto shall be responsible for any breach of
these provisions by it or any of its employees, officers,
agents or independent contractors. In the event that a Party
hereto believes it is compelled by law to disclose
confidential information of another Party, it shall
immediately notify that Party and shall cooperate with any
effort by that Party to obtain a protective order or otherwise
limit the disclosure of any such confidential information.
These obligations shall extend for a period three (3) years
from the end of the term or termination of this Agreement; and
b) hold all confidential information of a Party in strict
confidence and exercise due care with respect to its handling
and protection, consistent with such Party's own policies
concerning protection of its confidential information of like
importance, but in no event less than reasonable care.
7.2 The obligations set forth in Section 7.1 will not apply to a Party's
confidential information which:
a) now or later becomes generally known or available through no
act or omission by the receiving Party;
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b) the receiving Party can demonstrate it independently developed
its confidential information without the use of, or access to,
the information furnished to it by the disclosing Party;
c) is or becomes publicly available through issued patents(s), or
other printed publications;
d) is hereafter disclosed to the disclosing Party by a third
party having no obligations of confidentiality to the
disclosing Party with respect to such information; or
e) was known to the receiving Party prior to its receipt from the
disclosing Party as established by written records of that
Party.
7.3 LICENSORS and OCEAN POWER may disclose the contents of this Agreement
to lenders, other financing sources and potential financing sources or
as may be required in filings with federal and/or state securities
authorities provided that such lenders and the other financing sources
and potential persons have a need to know and agree to be bound by a
confidential agreement acceptable to the Parties.
7.4 The provisions of this Article 7 shall survive for three (3) years
after the end of the term or the termination of this Agreement.
Article 8
Records, Reports, and Audits
8.1 Records: LICENSORS will make and maintain accurate business records
according to generally accepted accounting principles showing the
amounts received by LICENSORS pursuant to Section 6.4. LICENSORS will
maintain such records for a period of three (3) years after the end of
the calendar year in which the Licensed Product(s) or amounts described
in such records are sold or received, as the case may be.
8.2 Inspection: Upon OCEAN POWER's written request, from time to time
during the term of this Agreement (but not more than two (2) times per
year) and for three (3) years thereafter, AQUAMAX and/or XXXXXX, as the
case may be, shall permit an independent Certified Public Accountant
selected by OCEAN POWER and acceptable to LICENSORS (acceptance not to
be unreasonably withheld), during normal business hours, to inspect all
the records which LICENSORS are required to maintain pursuant to
Section 8.1.
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Article 9
Warranties and Representations
9.1 By LICENSORS: AQUAMAX and XXXXXX each represent(s) and warrant(s) that
individually or together (i) it(they) own(s) all right, title, and
control(s) all interests in and to the AQUAMAX-XXXXXX Patents and
Improvements in the OCEAN POWER Field or has(have) the right, power and
authority to grant all licensed rights thereto, (ii) it(they) has(have)
the right, power and authority to grant all licensed rights herein,
(iii) it(they) has(have) the right, power and authority to enter into
this Agreement, (iv) to the best of its(their) knowledge the rights
granted hereunder to OCEAN POWER do not infringe any third party's
intellectual property rights, and (v) its(their) performance of this
Agreement will not violate any agreement between AQUAMAX and/or XXXXXX
and any third party.
9.2 By OCEAN POWER: OCEAN POWER represents and warrants that it has the
right, power and authority to enter into this Agreement and that OCEAN
POWER's performance of this Agreement will not violate any agreement
between OCEAN POWER and any third party.
Article 10
Technical Assistance and Technology Transfer
10.1 The Parties contemplate that OCEAN POWER may require technical
assistance from LICENSORS in order to achieve the objectives of this
Agreement. Accordingly, LICENSORS will make available to OCEAN POWER,
its Affiliates, licensees and their employees and agents, technical
consulting services at the lowest quoted consulting rates for such
services from AQUAMAX or XXXXXX.
10.2 LICENSORS shall disclose to OCEAN POWER the existing documentation and
data related to the technology disclosed in the AQUAMAX-XXXXXX Patents
and Improvements, including without limitation related Technical
Information. OCEAN POWER will bear the direct cost of the transfer of
the information, including technical assistance and time required for
the disclosure.
Article 11
Patent Maintenance
11.1 LICENSORS shall continue to maintain responsibility (and costs
associated therewith) for filing, prosecution, and maintenance of the
AQUAMAX-XXXXXX Patents. In the event that LICENSORS desire(s) to
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discontinue such activity, LICENSORS shall give OCEAN POWER adequate
written notice of its/their decision so that OCEAN POWER may decide
whether to have LICENSORS assign ownership of such patents and patent
applications to OCEAN POWER so that OCEAN POWER may assume
responsibility for their continued maintenance or prosecution. Where,
in OCEAN POWER's sole discretion, OCEAN POWER decides to assume the
responsibility for the continued maintenance or prosecution of the
applicable AQUAMAX-XXXXXX Patents pursuant to this Section 11.1,
LICENSORS shall assign ownership for such patents and patent
applications subject to LICENSORS' royalty-free right to continue to
use such patents outside of the OCEAN POWER Field during the term of
this Agreement and for the duration of such applicable patent(s).
Article 12
Assignment
12.1 Nonassignability: Except as otherwise provided in this Agreement, no
Party shall be entitled to transfer, assign, convey, sell, encumber, or
in any way alienate ("Transfer") all or any part of its rights or
obligations under this Agreement, except that a Party may at any time,
with the prior written consent of the other Parties (such consent not
to be unreasonably withheld or delayed) Transfer all, but not less than
all, of its rights and obligations under this Agreement to any entity
that owns or acquires a controlling portion of the stock or assets of
such Party, and such rights and obligations may only be Transferred by
any such assignee subject to the provisions of this Article 12.
Transfers in violation of this Article 12 or in violation of any other
provision of this Agreement shall be void ab initio and of no effect
whatsoever.
Article 13
Covenants
13.1 AQUAMAX and XXXXXX, individually and together, covenant(s) to disclose
to OCEAN POWER on a reasonably prompt basis all Improvements it/they or
its/their Affiliates or licensees develop during the term of this
Agreement.
13.2 OCEAN POWER covenants to disclose to AQUAMAX on a reasonably prompt
basis all Improvements it or its Affiliates or licensees develop during
the term of this Agreement.
13.3 AQUAMAX and XXXXXX, individually and together, covenant(s), to the
extent that any director, member, officer or employee of LICENSORS or
its(their) Affiliates or licensees or any agents thereof over which
LICENSORS has(have) control ("LICENSORS' Agent(s)") has or have
knowledge of the OCEAN POWER Field, that LICENSORS' Agents will be
available, and LICENSORS will make LICENSORS' Agents available to OCEAN
POWER for consultation regarding the OCEAN POWER Field and the Licensed
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Products during the term of this Agreement. OCEAN POWER is aware of
LICENSORS' limited resources in enforcing the obligations hereunder in
respect to those not employees, officers, directors or members of
LICENSORS.
Article 14
Integration
14.1 This Agreement sets forth the entire agreement and understanding
between the Parties as to the subject matter hereof and merges all
prior discussions between them. No Party shall be bound by any
warranties, understanding or representations with respect to such
subject matter other than as expressly provided herein or in a writing
signed with or subsequent to execution hereof by an authorized
representative of the Party to be bound thereby.
Article 15
Severability
15.1 If at any time during the term of this Agreement any provision hereof
proves to be or becomes invalid or unenforceable under any applicable
law, then such provision shall be deemed modified to the extent
necessary in order to render such provision valid and enforceable; if
such provision may not be saved, it shall be severed and the remainder
of this Agreement shall remain in full force and effect.
Article 16
Headings
16.1 The captions in this Agreement are for convenience only and shall not
be considered a part of or affect the construction or interpretation of
any provision hereof.
Article 17
Relationship of the Parties
17.1 Nothing in this Agreement shall be construed as making OCEAN POWER and
LICENSORS the partner, joint venturer, agent, employer, or employee of
the other. Neither OCEAN POWER nor LICENSORS shall have the authority
to make any statements, representations or commitments of any kind, or
to take any action which shall be binding on the other, except as
provided for herein or authorized in writing by the Party to be bound.
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Article 18
Authority and Enforceability
18.1 The signature of a Party's representative constitutes an express
representation that said representative has the authority to bind that
Party to the terms of this Agreement and that the Agreement is a
binding obligation of that Party, enforceable according to its terms.
Further, AQUAMAX and XXXXXX each respectively make the representations
and warranties set forth in Exhibit 18.1 attached hereto.
Article 19
Communications
19.1 For the purpose of all written communications and notices between the
Parties, their addresses shall be:
LICENSORS: Aquamax (International) Holding X.X.
Xxxxxxxxxxxxx 0, Xxxxxxxxxxxxxx
1076 AZ Amsterdam
X.X. Xxx 00000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: Xxxxxx Xxxxxxxx
and
OCEAN POWER: Ocean Power Corporation
5000 Xxxxxx X. Xxxxxxx Xxxxxxx
Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Xxxxxx Xxxxxx of America
Attn: Xxxxxx X. Xxxxxx, President
or any other addresses of which a Party shall notify the others in
writing. All notices required or permitted to be given under this
Agreement shall be in writing and will be deemed effectively given upon
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personal delivery or delivery by confirmed fax to the Party or Parties
to be notified or two (2) days after deposit with a recognized
overnight courier service with tracking capability to the above
address(es).
Article 20
Force Majeure
20.1 No Party shall be held liable to another Party to perform its
obligations where such performance is prevented or interfered with by
riots, war or hostilities between any nation, acts of God, fire, storm,
flood, earthquake, strikes, labor disputes, shortage or curtailment of
raw materials, labor power or other utility services or any
governmental restrictions.
Article 21
Governing Law
21.1 All matters of construction, validity, and performance, shall be
governed by and construed and enforced in accordance with the laws of
the State of Delaware, as applied to contracts made, executed, and to
be fully performed in such state by citizens of such state, without
regard to its conflict or choice of law rules. All unresolved disputes
arising out of or related to this Agreement shall be settled by
arbitration in accordance with the arbitration rules of the
International Chamber of Commerce. Arbitral proceedings shall be
conducted in the English language and take place in the City of London.
Article 22
Waiver
22.1 No waiver of any right or remedy in respect to any occurrence or event
on one occasion will be deemed a waiver of such right or remedy in
respect of such occurrence or event on any subsequent occasion.
Article 23
Publications
23.1 In the event that a Party desires to publish or disclose to a third
party the terms of this Agreement, a description of the nature of the
relationship created by this Agreement, data, costs, or performance
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attributes of any Licensed Products, such intent will be communicated
to the other Party or Parties, and such publication shall be permitted
only upon prior agreement of the Parties. Notwithstanding any agreement
between the Parties to the contrary, OCEAN POWER may publish that the
Parties' have entered into an exclusive licensing agreement for the
AQUAMAX-XXXXXX Patents and Improvements in the OCEAN POWER Field.
Article 24
Patent Marking
24.1 Each Party hereto agrees to xxxx or have marked all Licensed Products
sold, respectively, by it, or any of its respective Affiliates or
licensees, with the word "Patent" or "Patents," and the number or
numbers of the applicable OCEAN POWER Patent(s) and/or AQUAMAX-XXXXXX
Patent(s).
Article 25
Miscellaneous
25.1 (a) Patent, Trademarks and Tradenames: No Party to this Agreement
grants to another Party any rights in any patents, trademarks, service
marks, tradenames or any other intellectual property rights of such
Party other than those rights specifically set out in this Agreement.
25.2 (b) Counterparts: This Agreement may be excuted in counterparts, each
of which shall be deemed an original, but all of which shall constitute
one and the same instrument.
THE REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date, as defined in Section 1.7 above. Each Party has caused this
Agreement to be executed on its behalf by one of its duly authorized
representatives as of the date(s) set forth below.
AQUAMAX (INTERNATIONAL) HOLDING B.V.
By:_________________________________________
Name:_______________________________________
(typed or printed)
Title:______________________________________
Date: September 21, 2000
______________________________________
XXXXXX CORPORATION N.V.
By: /s/ Xxxxxx Matzhgrer
_________________________________________
Name: Xxxxxx Matzhgrer
_______________________________________
(typed or printed)
Title:______________________________________
Date: September 20, 2000
_______________________________________
OCEAN POWER CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
_________________________________________
Name: Xxxxxx X. Xxxxxx
_______________________________________
(typed or printed)
Title: President
______________________________________
Date: September 14, 2000
_______________________________________
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SCHEDULE A
Aquamax and Xxxxxx Patents & Patents Pending
17
SCHEDULE A (continued)
Aquamax and Xxxxxx Patents & Patents Pending
PCT Publication No. WO 98/31529
(PCT Serial No. PCT/FI98/00038)
and all related patent applictions worldwide including
but not limited to those maturing from this application
filed by Hadwaco Ltd. Oy.
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SCHEDULE B
Ocean Power Patents & Patents Pending
1. U.S. Serial No. 60/228,826
For: Method for Pretreting Water for Desalination
2. U.S. Serial No. 60/226,067
For: Heat Exchange Element with Hydrophilic Evaporator Surface
3. U.S. Serial No. 60/226,387
For: High Efficiency Steam Ejector
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EXHIBIT 1.9
The Hadwaco Licence
20
EXHIBIT 18.1
Supplemental Representations and Warranties
A. Aquamax expressly represents and warrants that:
1. TMF Management B.V. ("TMF Management") is a private limited
liability company duly formed and existing under the laws of
the Netherlands.
2. TMF Management is the sole statutory director of Aquamax.
3. Under the law of the Netherlands and the applicable corporate
resolutions and by-laws of TMF Management and Aquamax, any
natural person(s) who has(have) the power and authority,
acting solely or jointly, to act on behalf of TMF Management
and bind it to legally binding contractual obligations also
has(have) the power and authority to act on behalf of TMF
Management in its capacity as sole statutory director of
Aquamax and, in so acting, bind Aquamax to legally binding
contractual obligations.
4. Under the law of the Netherlands and the applicable corporate
resolutions and by-laws of TMF Management and Aquamax, one
natural person who duly holds the title of "attorney-in-fact"
and one natural person who duly holds the title of
"attorney-in-fact with title Managing Director" may, acting
together, bind TMF Management to legally binding contractual
obligations. When such persons act on behalf of TMF Management
in its capacity as sole statutory director of Aquamax, such
persons have the power and authority to bind Aquamax to
legally binding contractual obligations including those
contained in this Agreement
5. Xx. Xxxxx Xxxxxxx, a signatory of this Agreement on behalf of
Aquamax, holds the title of "attorney-in-fact" within TMF
Management.
6. Xx. Xxxxxxxx Xxxxxxx Schellingerhout, a signatory of this
Agreement on behalf of Aquamax, holds the title of
"attorney-in-fact with title Managing Director" within TMF
Management.
X. Xxxxxx expressly represents and warrants that:
1. TMF (Netherlands Antilles) N.V. ("TMF Antilles") is a private
limited liability company duly formed and existing under the
laws of the Netherlands Antilles.
2. TMF Antilles is the sole statutory director of Xxxxxx.
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3. Under the law of the Netherlands Antilles and the applicable
corporate resolutions and by-laws of TMF Antilles and Xxxxxx,
any natural person who has the power and authority to act on
behalf of TMF Antilles and bind it to legally binding
contractual obligations also has the power and authority to
act on behalf of TMF Antilles in its capacity as sole
statutory director of Aquamax and, in so acting, bind Aquamax
to legally binding contractual obligations.
4. Under the law of the Netherlands Antilles and the applicable
corporate resolutions and by-laws of TMF Antilles and Xxxxxx,
one natural person who duly holds the title of "Managing
Director" may bind TMF Antilles to legally binding contractual
obligations. When such persons act on behalf of TMF Antilles
in its capacity as sole statutory director of Xxxxxx, such
person has the power and authority to bind Xxxxxx to legally
binding contractual obligations including those contained in
this Agreement
5. Xx. Xxxxxx Xxxxxxxxx, a signatory of this Agreement on behalf
of Xxxxxx, holds the title of "Managing Director" within TMF
Antilles.
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