Exhibit 10.26
20 July, 2001
SIDE LETTER
The parties to this Side Letter are as follows:
(1) Balantum Oy ("Newco"), a company organised and existing under the laws
of Finland (Business ID 1646698-0) having its registered domicile in
the City of Helsinki and its registered address at c/o Asianajotoimisto
Waselius & Wist Oy, Etelaesplanadi 24 A, 00130 Helsinki, Finland;
(2) Aquamax (International) Holding B.V., ("Aquamax"), a company organised
and existing under the laws of the Netherlands having its registered
domicile in the City of Amsterdam and its registered address at
Locatellikade 1, Parnassustoren, 1076 AZ Amsterdam, P.O. Box 7215, 1070
AE Amsterdam, the Netherlands;
(3) Keeran Corporation N.V. ("Keeran"), a company organised and existing
under the laws of the Netherlands Antilles having its registered
domicile in the City of Willemstad and its registered address at World
Trade Center Curacao, Unit BC.II.01-04, Piscadera Bay, Willemstad,
Curacao, the Netherlands Antilles;
(4) Hadwaco Ltd Oy ("Hadwaco"), a company organised and existing under the
laws of Finland, having its registered domicile in the City of Helsinki
and its registered address at Hameentie 135, 00560 Helsinki, Finland
and
(5) Ocean Power Corporation, a Delaware corporation having a principal
place of business at 5000 Robert J. Mathews Parkway, El Dorado Hills,
California 95762, United States of America ("Ocean Power")
WHEREAS, Newco, Aquamax and Keeran have today signed a Patent
Assignment Agreement (The "Agreement"); and
WHEREAS, Newco, Aquamax, and Keeran have today signed a License
Agreement (The "License Agreement"); and
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WHEREAS, Newco, Aquamax and Keeran have today signed a Co-Operation and
Sales Agreement (The "Co-Operation and Sales Agreement"); and
WHEREAS, Aquamax, Keeran and Ocean Power have today signed a Mutual
Release (The "Mutual Release"); and
WHEREAS, Aquamax and Hadwaco have today signed a Settlement Agreement
(The "Settlement Agreement")
Each of the parties are hereinafter referred to as a "Party" and
together as the "Parties". The Agreement, the License Agreement, the
Co-Operation and Sales Agreement, the Mutual Release and the Settlement
Agreement are hereinafter referred collectively as the "Agreements".
NOW, THEREFORE, for good and valuable consideration, the receipt and
suffiiceny of which are hereby acknowledged by the Parties, the Parties
have agreed as follows:
1. In the event that the transactions contemplated by the Agreements do
not close on or before 31 August, 2001, as agreed between the Parties,
all the Agreements shall thenceforth be null and void, and none of the
Parties shall be bound by any of the terms or provisions of any of the
Agreements or be entitled to enforce any obligations or rights under
any of the Agreements. Without limiting the foregoing, it is expressly
agreed by and between the Parties that the transaction contemplated by
the Agreement cannot and shall not close until and unless Aquamax and
Keeran have completed Schedule "A" attached to said Agreement to the
satifaction of Newco. If Newco does not present any claims on or before
17 August, 2001, Schedule "A" shall be considered as accepted.
2. Notwithstanding any provision in any of the Agreements to the contrary,
including but not limited to section 11.9 of the Agreement, section
9.15 of the License Agreement and section 22.1 of the Co-operation and
Sales Agreement, this Side Letter shall be incorporated into the
Agreements and shall supersede, modify and amend any and all terms or
provisions of any of the Agreements which conflict with the terms of
this Side Letter.
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3. Notwithstanding section 11.2. of the Agreement, section 8 of the
License Agreement and section 17 of the Co-operation and Sales
Agreement, if the Agreements become null and void by operation of
paragraph 1 of this Side Letter, they shall become so automatically and
without any notice to any Party.
4. In the event that the Agreements shall become null and void as provided
herein the Licensing Agreement fully executed on September 21, 2000
between Ocean Power, Aquamax, and Keeran (the "Original Agreement")
shall remain fully valid and the validity of the Original Agreement has
not been interrupted at any stage.
5. This Side Letter modifies and amends the Agreements, is made in
consideration of the same obligations and promises as specified in the
Agreements, and is intended by the Parties to consititue an integral
part of each of the Agreements, notwithstanding any provisions in any
of the Agreements to the contrary.
6. Notwithstanding section 11.3 of the Agreement, section 9.7 of the
License Agreement and section 26 of the Co-operation and Sales
Agreement, any dispute, difference or claim arising beween the Parties
in respect of any of the terms and conditions of this Side Letter or of
performance thereof by any of the Parties, which cannot be settled
amicably by means of negotiation, shall be subject to arbitration by
three (3) arbitrators, unless otherwise agreed by the Parties under the
laws of Finland. The place of arbitration shall be in Helsinki,
Finland, and the proceedings shall be conducted in English or Finnish,
as the Parties might agree.
NEWCO AQUAMAX (INTERNATIONAL)
HOLDING B.V.
By /s/ Juhani Kujala By /s/ Rainer Sjostrum
Name Juhani Kujala Name Rainer Sjostrum
Title_________________ Title__________________
Date 20 July 2001 Date 20 July 2001
KEERAN CORPORATION N.V. HADWACO LTD OY
By /s/ Rainer Sjostrum By_____________________
Name___________________ Name___________________
Title__________________ Title__________________
Date 20 July 2001 Date___________________
OCEAN POWER CORPORATION
By /s/ Philip Johnson
Name________________________
Title_______________________
Date 20 July 2001
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