Option Agreement
This
Agreement dated this 29th day of
April, 2009, by and between ALTERNATIVE WIND RESOURCES, LLC, a New York limited
liability company (hereinafter referred to as “AWR”), and WINDTAMER CORPORATION,
a New York State corporation (hereinafter referred to as
“WINDTAMER”).
WHEREAS,
WINDTAMER holds certain United States and International patents and patent
pending claims and rights for WindTamer Turbines; and
WHEREAS,
AWR desires to obtain Exclusive United States and International Licensing rights
to manufacture, lease and sell 15KW and larger WindTamer Turbines.
NOW
THEREFORE, for good and valuable consideration and in consideration of the
mutual covenants contained herein the parties hereto agree as
follows:
1. WINDTAMER
agrees to grant to AWR an Exclusive License and appropriate rights under all of
WINDTAMER's patents, patents pending and other intellectual property rights, to
enable AWR to manufacture, market, lease and defend patents for all 15KW and
larger WindTamer Turbines.
2. In
consideration for said Exclusive Licensing rights to be granted, AWR will pay to
WINDTAMER the sum of $6,000,000.00. In addition, AWR shall pay to WINDTAMER the
following royalties for each turbine that is sold or leased: for each 15KW
turbine $5,000.00; for each 20KW turbine $6,000,00; for each 30KW turbine
$7,000.00. Each year the base amount of all royalties to be paid will be
adjusted to reflect the US Federal Cost of Living Index.
3. This
Option Agreement shall remain in full force and effect for a period of 60 days
from the date of the execution or this Agreement.
4. This
Option Agreement is contingent upon WINDTAMER. providing AWR with all
documentation reasonably necessary in order to evidence that WINDTAMER holds
valid United States and International patents and patents pending claims and
rights, which were granted for a fluid driven enhanced generator Patent No.
6655907 issued December 2, 2003, and that WINDTAMER has the authority to grant
such exclusive rights to AWR. In the event that WINDTAMER cannot provide such
information in a form reasonably acceptable by AWR, this Option Agreement shall
be extended 45 days after such information is provided.
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5. In
consideration for the granting of this option, AWR will pay to WINDTAMER the sum
of $10,000.00.
6. The
License Agreement shall provide:
A. AWR
shall pay such royalty on all sales of WindTamer Turbines to WINDTAMER each
calendar quarter, no later than 30 days after the end of each calendar
quarter.
B. AWR
will keep and maintain records, during the term of this License Agreement, to
reflect the exact number of WindTamer units manufactured and sold.
C. WINDTAMER
shall have the right, upon reasonable prior notice, to audit AWR's records to
determine the accuracy of AWR's royalty payments. In the event any underpayments
are discovered, AWR is to immediately make payment to WINDTAMER to correct the
underpayment.
D. That
the parties shall remain at all times, independent contractors in the
performance of the Agreement and nothing contained herein shall be deemed to
create a joint venture, partnership or agency relationship between the parties.
Neither party shall have the right or authority to assume or to create any
obligation or responsibility, expressed or implied, on behalf of the other as
may be expressly provided otherwise in said Agreement. Each party shall be
solely responsible for the performance of its employees and for all costs and
expenses of its employees, to include, but not be limited to employee
benefits.
8. The
License Agreement shall be effective and commence upon the payment of
$6,000,000.00 and shall remain in full force and effect for a period of 50
years, AWR may renew the License Agreement for an additional term of 50 years by
providing a written renewal notice to WINDTAMER, no later than 90 days prior to
the end of the initial term.
9. Any
amendments or modifications to this Agreement must be in writing and signed by
authorized representatives of both parties. Any verbal agreements, discussions,
and understandings, expressed or implied, shall not constitute an amendment to
this Agreement.
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10. Unless
otherwise expressly provided for, all notices, requests, demands, consents or
other communications required or pertaining to this Agreement shall be sent by
next business day courier, fax followed by confirmation by mail, e-mail or some
other method that provided proof of deliver, to the address set forth
below.
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WindTamer
Corporation
000
Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
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Alternative
Wind Resources, LLC
Attn:
Xxxxx X. Xxxxxxxx
0000 Xxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
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IN
WITNESS WHEREOF, the parties have caused this agreement to be executed by their
duly authorized representatives.
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WINDTAMER
CORPORATION
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ALTERNATIVE
WIND RESOURCES, LLC
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By:
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/s/ Xxxxxx Xxxxx 4/29/2009
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By:
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/s/ Xxxxxx Xxxx
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Xxxxx Xxxxx
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Xxxxxx Xxxx
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President and CEO
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Managing
Member
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