Frequently Asked Questions

  1. Why did I receive a notice package?

    You or someone in your family may have purchased or acquired the publicly traded securities of Ocean Power Technologies, Inc. (“OPTT”) between January 14, 2014 and July 29, 2014, and/or purchased and/or acquired OPTT common stock in the April 4, 2014 follow-on stock offering.

    The Court ordered that the Notice be sent to you because you have a right to know about a proposed settlement of a class action lawsuit, and about all of your options, before the Court decides whether to approve the Settlement. If the Court approves it and after any objections or appeals are resolved, the Claims Administrator appointed by the Court will make the payments that the Settlement allows.

    The package explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.

    The Court in charge of the case is the United States District Court for the District of New Jersey, and the case is known as In re Ocean Power Technologies, Inc. Securities Litigation, Case No. 14-3799 (FLW) (LHG). The entity who sued is called the Lead Plaintiff, and the companies and individuals it sued, OPTT, Charles Dunlevy, and Roth Capital Partners LLC (“Roth Capital”), are called Defendants. Defendants have agreed to settle the claims made in this case.

    If you think you are part of this settlement and you did not receive a notice package, click here to download a copy of the Notice or click here to get one mailed to you.

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  2. What is this lawsuit about?

    Lead Plaintiff has filed this lawsuit alleging that OPTT and its former Chief Executive Officer, Charles Dunleavy, violated the federal securities laws by making false and misleading statements and/or omitting statements of material fact regarding OPTT’s business, including the capabilities of certain products and the viability of a now-terminated project with the Australian government. In addition, Lead Plaintiff alleges that OPTT, Dunleavy, and Roth Capital made materially false and misleading statements regarding OPTT’s business in connection with an April 4, 2014 follow-on stock offering, of which Roth Capital was the underwriter. The Defendants filed motions to dismiss in November 2015, arguing, among other things, that the statements were forward-looking statements that were accompanied by meaningful cautionary language, that Lead Plaintiff ignored the actual disclosures that Defendants made, and that Lead Plaintiff did not plead the requisite state of mind. The Defendants deny that they did anything wrong.

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  3. Why is this a class action?

    In a class action, one or more people or entities called “class representatives” (in this case, the Court-appointed Lead Plaintiff, FiveMore Special Situations Fund Ltd.) sue on behalf of people who have similar claims. Here, all these people are called a “Class” or “Class Members.” One court resolves the issues for all the Class Members, except for those who exclude themselves from the Class. Judge Freda Wolfson is in charge of this class action.

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  4. Why is there a settlement?

    The Court did not decide in favor of the Lead Plaintiff or Defendants. Instead, both sides agreed to a settlement. That way, they avoid the cost of a litigation, and eligible Class Members who make valid claims will get compensation. Lead Plaintiff and its attorneys think the Settlement is best for all Class Members.

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  5. How do I know if I am part of the Settlement?

    The Class includes all persons who purchased or otherwise acquired publicly traded securities of OPTT between January 14, 2014 and July 29, 2014 and/or purchased or otherwise acquired OPTT securities pursuant to and/or traceable to OPTT’s April 4, 2014 follow-on stock offering, except those persons or entities that are excluded, as described in FAQ 6.

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  6. Are there exceptions to being included?

    You are not a Class Member if you are:

    • A Defendant;
    • A director, officer, or employee of OPTT during the Class Period;
    • A member of the immediate family, trust, company, entity, or affiliate controlled or owned by any excluded party.

    If you sold OPTT securities between January 14, 2014 and July 29, 2014, that alone does not make you a Class Member. You are a Class Member only if you purchased or acquired OPTT securities, as described in FAQ 5.

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  7. What if I am still not sure if l am included?

    If you are still not sure whether you are included, you can ask for free help. You can contact the Claims Administrator toll-free at 1-866-708-0920, or you can fill out and return the Proof of Claim form enclosed with the Notice package, to see if you qualify.

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  8. What does the Settlement provide?

    Defendants have agreed to pay a total of $3,000,000 in cash and 380,000 shares of OPTT common stock.

    OPTT Settlement Stock

    The OPTT Settlement Stock will consist of 380,000 shares of OPTT common stock. OPTT is not providing any price protection for the OPTT Settlement Stock; the number of shares will not be adjusted regardless of whether the value of each share later increases or decreases before distribution to the Class Members. However, the number of shares constituting the OPTT Settlement Stock will be adjusted to account for stock splits, reverse stock splits, and other similar actions taken by OPTT. All costs associated with the delivery or distribution of the OPTT Settlement Stock shall be borne by OPTT.

    The OPTT Settlement Stock shall be exempt from the registration requirements of the Securities Act of 1933 under § 3(a)(10) of the Securities Act. The OPTT Settlement Stock shall not constituted “restricted securities” under the Securities Act and may be sold or transferred by recipients thereof who are not affiliates of OPTT (as that term is defined in Rule 144 of the Securities Act) or recipients deemed to be underwriters under the Securities Act without registration under § 5 of the Securities Act or compliance with Rule 144.

    Until distribution to Class Members, Lead Counsel agrees to vote the shares of OPTT Settlement Stock in the same proportion as those voted by the shares that are not OPTT Settlement Stock and that are eligible to vote on any matter presented to shareholders for such a vote and, if requested by OPTT, to enter into a voting trust agreement so providing.

    The Settlement Fund will be divided among all eligible Class Members who send in valid Proof of Claim forms, after payment of Court-approved attorneys’ fees and expenses and the costs of claims administration, including the costs of printing and mailing this Notice and the cost of publishing notice (the “Net Settlement Fund”).

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  9. How much will my payment be?

    Your share of the Net Settlement Fund will depend on several things, including how many Class Members submit timely and valid Proof of Claim forms, the total recognized losses represented by the valid Proof of Claim forms that Class Members send in, the total number of shares of OPTT common stock you purchased or acquired, how much you paid, when you purchased or acquired, and if you sold your securities and for how much.

    By following the instructions in the Plan of Allocation, you can calculate what is called your Recognized Loss. It is unlikely that you will get a payment for all of your Recognized Loss. After all Class Members have sent in their Proof of Claim forms, the payment you get will be a part of the Net Settlement Fund equal to your Recognized Loss divided by the total of everyone’s Recognized Losses. Your payment will be made in cash and OPTT Settlement Stock. See the Plan of Allocation contained in the Notice for more information.

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  10. How can I get a payment?

    To qualify for payment, you must be an eligible Class Member, and you must send in a Proof of Claim form. A Proof of Claim form was enclosed in the Notice package. Read the instructions carefully, fill out the form, include all the documents the form asks for, sign it, and mail it postmarked no later than October 31, 2016 to:

    Ocean Power Technologies, Inc. Securities Litigation
    Claims Administrator
    P.O. Box 4259
    Portland, OR 97208-4259

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  11. When would I get my payment?

    The Court will hold a hearing on November 14, 2016 to decide whether to approve the Settlement. If Judge Wolfson approves the class action Settlement, there may be appeals. It is always uncertain whether these appeals can be resolved, and resolving them can take time, perhaps several years. Everyone who sends in a Proof of Claim form will be informed of the determination with respect to their claim. Please be patient.

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  12. What am I giving up to get a payment or to stay in the Class?

    Unless you exclude yourself, you are staying in the Class, and that means that you cannot sue, continue to sue, or be part of any other lawsuit against the Defendants about the same legal issues in this case. It also means that all of the Court’s Order will apply to you and legally bind you, and you will release your claims in this case against the Defendants. The terms of the release are included in the Proof of Claim form.

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  13. How do I get out of the proposed Settlement?

    If you do not want a payment from this Settlement, but you want to keep the right to sue or continue to sue any of the Defendants on your own about the same legal issues in this case, then you must take steps to get out of the Class. This is called excluding yourself or is sometimes referred to as opting out of the Class.

    To exclude yourself from the Class, you must send a letter by mail stating that you want to be excluded from In re Ocean Power Technologies, Inc. Securities Litigation, Case No. 14-3799. You must include your name, address, telephone number, signature, the number and type of OPTT securities you purchased or acquired between January 14, 2014 and July 29, 2014, the number and type of securities sold during this time period, if any, and the dates of such purchases and sales. You must mail your exclusion request postmarked no later than October 31, 2016 to:

    Ocean Power Technologies, Inc. Securities Litigation
    Claims Administrator
    P.O. Box 4259
    Portland, OR 97208-4259

    You cannot exclude yourself by phone or by email. If you ask to be excluded, you are not eligible to get any Settlement payment, and you cannot object to the Settlement. You will not be legally bound by anything that happens in this lawsuit.

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  14. If I do not exclude myself, can I sue the Defendants and the other Released Defendant Parties for the same thing later?

    No. Unless you exclude yourself, you give up any right to sue the Defendants for the claims resolved by the class action Settlement. If you have a pending lawsuit against any of the Defendants, speak to your lawyer in that case immediately. Remember the exclusion deadline is October 31, 2016.

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  15. If I exclude myself, can I get money from the proposed Settlement?

    No. If you exclude yourself, do not send in a Proof of Claim form. But, you may sue, continue to sue, or be part of a different lawsuit against any of the Defendants.

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  16. Do I have a lawyer in this case?

    The Court asked the law firm Levi & Korsinsky LLP to represent you and other Class Members. These lawyers are called Lead Counsel. You will not be charged for the services of these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.

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  17. How will the lawyers be paid?

    Lead Plaintiff’s Counsel will ask the Court for attorneys’ fees of 33% of the Settlement Fund and for reimbursement of their out-of-pocket litigation expenses up to $25,000.00, which were advanced in connection with the Action. Such sums as may be approved by the Court will be paid from the Settlement Fund. Class Members are not personally liable for any such fees or expenses.

    The attorneys’ fees and expenses requested will be the only payment to Lead Counsel for their efforts in achieving this Settlement and for the risk in undertaking this representation on a wholly contingent basis. To date, Lead Counsel has not been paid for their services for conducting this litigation on behalf of the Lead Plaintiff and Class nor for their substantial out-of-pocket expenses. The fees requested will compensate Lead Counsel for their work in achieving the Settlement Fund, and they are well within the range of fees awarded to class counsel under similar circumstances in other cases of this type. The Court may award less than this amount.

    Lead Counsel will also request reimbursement of attorneys’ fees and expenses for administration of the Settlement, including costs associated with notice and the fees and expenses of the Claims Administrator. Those amounts will be requested before distribution of the Net Settlement Fund to Class Members. Again, such sums as may be approved by the Court will be paid from the Settlement Fund.

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  18. How do I tell the Court that I object to the proposed Settlement?

    If you are a Class Member, you can object to the Settlement if you do not like any part of it. You can give reasons why you think the Court should not approve it. The Court will consider your views. To object, you must send a letter saying that you object to the Settlement in In re Ocean Power Technologies, Inc. Securities Litigation, Case |No. 14-3799 (FLW) (LHG). Be sure to include your name, address, telephone number, signature, the OPTT common stock purchased and sold between January 14, 2014 and July 29, 2014, and the reasons you object to the Settlement. Any objection to the Settlement must be mailed or delivered such that it is received by Lead Counsel no later than October 31, 2016. Address for Lead Counsel:

    Nicholas I. Porritt, Esq.
    Levi & Korsinsky LLP
    1101 30th Street, N.W.
    Suite 115
    Washington, D.C. 20007

    Lead Counsel will then immediately provide to Defendants’ Counsel any such objection.

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  19. What is the difference between objecting and excluding myself?

    Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you do not want to be part of the Class. If you exclude yourself, you have no basis to object because the case no longer affects you.

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  20. When and where will the Court decide whether to approve the proposed Settlement?

    The Court will hold a Settlement Hearing at 10:00 a.m., on November 14, 2016 at the United States Courthouse, Clarkson S. Fisher Building & U.S. Courthouse, 402 East State Street, Courtroom 5E, Trenton, NJ 08608. At this hearing, the Court will consider whether the Settlement of the Action is fair, reasonable, and adequate. If there are objections, the Court will consider them. Judge Wolfson will listen to people who have asked to speak at the hearing. The Court will also consider how much to pay to Lead Counsel. The Court may decide these issues at the hearing or take them under consideration. We do not know how long these decisions will take.

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  21. Do I have to come to the hearing?

    No. Lead Counsel will answer questions Judge Wolfson may have. But, you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary.

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  22. May I speak at the hearing?

    You may ask the Court for permission to speak at the Settlement Hearing. To do so, you must send a letter saying that it is your “intention to appear in In re Ocean Power Technologies, Inc. Securities Litigation, Case No. 14-3799 (FLW) (LHG).” Be sure to include your name, address, telephone number, signature, and the number and type of OPTT securities purchased or acquired between January 14, 2014 and July 29, 2014. Your notice of intention to appear must be received no later than October 31, 2016 by Lead Counsel at the address listed in FAQ 18. You cannot speak at the hearing if you exclude yourself from the Class.

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  23. What happens if I do nothing at all?

    If you do nothing, you will get no money from this Settlement. But, unless you exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the Defendants about the same legal issues in this case.

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  24. Are there more details about the proposed Settlement?

    More details are in the Stipulation and Agreement of Class Settlement, available for download here.

    You can also obtain a copy of the Stipulation and Agreement of Class Settlement from the Clerk’s Office during regular business hours:

    Clerk of Court
    U.S. Courthouse
    402 East State Street
    Room 2020
    Trenton, NJ 08608

    Other inquiries can be directed the Claims Administrator at:

    Ocean Power Technologies, Inc. Securities Litigation
    Claims Administrator
    P.O. Box 4259
    Portland, OR 97208-4259

    OR

    Lead Counsel at:
    Nicholas I. Porritt, Esq.
    Levi & Korsinsky LLP
    1101 30th Street, N.W.
    Suite 115
    Washington, D.C. 20007

    DO NOT TELEPHONE THE COURT OR DEFENDANTS’ COUNSEL REGARDING THIS SETTLEMENT.

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Important Dates

  • January 14, 2014 through and
    including July 29, 2014

    Common Stock Class Period
  • On or About April 4, 2014
    Follow-On Stock Offering
  • October 31, 2016
    Deadline to Request Exclusion from the Class
  • October 31, 2016
    Deadline to Object
  • October 31, 2016
    Deadline to Submit a Proof of Claim
  • November 14, 2016 at 10:00 a.m. EST
    Settlement Hearing