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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),
George W. Taylor ("Dr. Taylor") and Joanne Burns ("Ms. Burns").
WITNESSETH:
WHEREAS, Dr. Taylor and Ms. Burns were parties to that certain
Voting and
Right of First Refusal Agreement, dated September 27, 2003 (the
"Prior
Agreement"), granting Dr. Taylor certain voting and other rights
with respect to
Ms. Burns' holdings of the Company's common stock, no par value per
share (the
"Common Stock"); and
WHEREAS, as of the date hereof, Ms. Burns 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, Ms.
Burns formerly desired to irrevocably constitute and appoint Dr.
Taylor as her
lawful agent and proxy to vote all of the Current Shares held by
Ms. Burns, 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, Dr. Taylor and Ms. Burns 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 Ms. Burns 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"), Ms. Burns hereby irrevocably constitutes and
appoints Dr.
Taylor 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 Ms.
Burns 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 Ms. Burns. Dr. Taylor hereby releases his existing proxy
and all other
rights and restrictions granted under the Prior Agreement related
to the
Released Shares. Ms. Burns, or any successor holder, shall be
entitled to vote
the Released Shares on any matter duly brought before the Company's
shareholders
and
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Ms. Burns 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 Dr. Taylor) upon all certificates
evidencing the
Released Shares.
1.2 In furtherance of the foregoing, Ms. Burns hereby acknowledges
that she
has executed an Irrevocable Proxy, in the form attached hereto as
Exhibit A (the
"Irrevocable Proxy"), granting to Dr. Taylor 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 Ms. Burns as fully, to
the same
extent, and with the same effect as Ms. Burns 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 Ms. Burns
in favor of
Dr. Taylor or any other party is hereby terminated.
1.3 Ms. Burns agrees that Dr. Taylor (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 Ms.
Burns arising solely with respect to the voting of the Proxy
Shares. Except as
provided herein, Dr. Taylor shall not have any liability whatsoever
to Ms. Burns
under the terms and provisions of this Agreement or the proxy
delivered
simultaneously herewith by Ms. Burns.
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 Ms. Burns 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 Dr. Taylor agrees to
promptly execute
and deliver to Ms. Burns any documentation evidencing such
termination as
reasonably requested by Ms. Burns.
1.6 Ms. Burns 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 Ms. Burns 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 Ms. Burns' 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
Ms. Burns 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 Ms. Burns' 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 Ms.
Burns, 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 Ms. Burns desires to
Transfer any
of her Proxy Shares, or any interest in such Proxy Shares, Ms.
Burns shall first
deliver written notice of her desire to do so (the "Notice") to Dr.
Taylor 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
Ms. Burns
proposes to sell or otherwise dispose o
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