Exhibit 10.9
AGREEMENT
THIS AGREEMENT is made as of the 30th day of June, 2004 between Ovation
Products Corporation, a corporation organized and existing under the laws of the
State of Delaware, with principal offices at 0 Xxxxxxxxx Xxxxx, Xxxxxx, XX 00000
("Ovation"), and WMS Family I LLC, a Delaware limited liability company with
principal offices at 000 Xxxxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("WMS").
WHEREAS, Ovation`s predecessor in interest and WMS entered into certain
Agreements dated as of August 21, 1997 related to the advance of certain monies
by WMS and the grant of certain right to WMS in return therefor;
WHEREAS, in a series of amendments, the parties have altered their
understandings, including the issuance to WMS of notes in the total aggregate
amount of approximately $500,000 and warrants for the purchase of approximately
200,000 shares of Ovations common capital stock; and
WHEREAS, WMS and Ovation have, in connection with the acquisition of WMS
of certain of Ovation's securities and the extension of certain obligations due
to WMS by Ovation, agreed that WMS will obtain and retain license rights to
certain Ovation's technology on the terms set forth herein.
NOW THEREFORE, inconsideration of the premises and good and valuable
consideration, the receipt and sufficiency of which is hereby mutually
acknowledged, WMS and Ovation further agree as follows:
1. GRANT. If products based on Ovation's technology but not then pursued
by Ovation or its partners are conceived by WMS or its designee, Ovation will
grant WMS an exclusive license for the development, manufacture, sale and
distribution of such products on terms and at royalties similar to those
contained in the License Agreement of even date.
2. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
3. NOTICES. All notices, requests and other communications provided for
herein shall be in writing and shall be deemed to have been made or given when
delivered, or mailed postage prepaid, to each party at its address first stated
above or such other address as such party may hereafter specify for such purpose
by notice to the other party referred to above.
4. AMENDMENTS AND WAIVERS. Any provisions of this Agreement may be amended
or waived if, but only if, such amendment or waiver is in writing and is signed
by Ovation and WMS. No failure or delay by Ovation or WMS in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the law of the State of Massachusetts.
6. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
hereof and thereof and supersedes any previous agreement among the parties with
respect to such subject matter.
IN WITNESS WHEREOF, the parties have duly executed this Agreement, each by
its duly authorized representative, under seal, as of the date and year first
above written.
OVATION PRODUCTS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Title: President and COO
WMS FAMILY I LLC
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Xxxxxxx X. Xxxxxxx
