Ravin Crossbows, LLC v. Hunter's Manufacturing Company, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

RAVIN CROSSBOWS, LLC, ) CASE NO. 5:18-cv-1729

)

)

PLAINTIFF, ) JUDGE SARA LIOI

)

vs. ) MEMORANDUM OPINION

) AND ORDER

HUNTER’S MANUFACTURING )

COMPANY, INC., d/b/a TenPoint Crossbow )

Technologies, )

)

)

DEFENDANT. )

By Order dated November 13, 2019, the Court, with the parties’ agreement, directed initial

briefing on two possibly dispositive, or narrowing, issues: (a) whether plaintiff’s exercise of the

“buy-out” option in the parties’ Patent License Agreement was timely; and (b) whether, at the time

of plaintiff’s attempted exercise, it still possessed the option. (Doc. No. 83.)

Now before the Court is a motion for summary judgment of plaintiff Ravin Crossbows,

LLC (“Ravin” or “plaintiff”). (Doc. Nos. 84–85 [“Mot.”].) Defendant Hunter’s Manufacturing

Company, Inc. d/b/a TenPoint Crossbow Technologies (“TenPoint” or “defendant”) filed a brief

in opposition. (Doc. No. 89 [“Opp’n”].) Ravin filed a reply brief. (Doc. No. 96 [“Reply”].) With

leave, TenPoint filed a surreply. (Doc. No. 99 [“Surreply”].)

I. BACKGROUND1

Ravin and TenPoint are both engaged in the design, manufacture, and sale of crossbows

and related products. In late 2015, Ravin was newly organized, with no commercialized products

or customers; TenPoint was well-established in the crossbow market and had patented several

designs. (Mot. at 829.2) Ravin reached out to TenPoint seeking to license some of TenPoint’s

patents. (Id.; Opp’n at 881.) In late 2015, Ravin and TenPoint entered into a Patent License

Agreement (Doc. No. 32-1 [“Agreement”]), under which TenPoint licensed certain patents to

Ravin for incorporation into Ravin’s products in exchange for Ravin’s payment of royalties. (Mot.

at 829; Opp’n at 881; see also Agreement §§ 1.1, 2.1.)3 The Agreement also gave Ravin, under

certain conditions, an option to “buy-out” the royalty for the balance of the Agreement’s term.4

(Agreement § 2.1.)

The legal construction of Section 2.1 of the Agreement, in particular the “buy-out” option,

largely underlies the dispute between the parties. Section 2.1 provides as follows:

2.1 Royalty Payments. For the license granted herein, Licensee [Ravin] shall pay

to Licensor [TenPoint] a royalty of eight percent (8%) (“Royalty”) of the net sales

1 For reasons that are apparent in light of the procedural background of this case, the parties’ briefs cite to the pleadings

to establish the basic factual underpinnings—which would typically not be permitted on summary judgment. The

relevant facts are largely undisputed. The issue currently before the Court is a legal question of contract interpretation

and does not depend on anyone’s particular version of the facts. For ease of citation herein, the Court will cite to

relevant pages in the parties’ briefs, without repeating citations to the pleadings.

2 All page number references are to the page identification number generated by the Court’s electronic docketing

system.

3 Ravin also cross-licensed to TenPoint, royalty free, certain of its patents and patent applications. (See Agreement §

1.2.)

4 With respect to its “term,” the Agreement provided:

6.1 Term. This Agreement shall commence on the Effective Date and, unless terminated earlier as

provided in Section 6.3 below [Termination for Breach], shall continue until the last to expire of the

Licensed Patents and the Cross-Licensed Patents (the “Term”) expires. The obligation to pay

Royalties for a particular Licensed Product shall terminate when such Licensed Product is no longer

covered by any claim of any of the Licensed Patents, whether due to expiration, nullification,

abandonment, or a final judgment of invalidity or unenforceability of the applicable Licensed

Patents, or as determined according to Section 2.7.

(Agreement § 6.1.)

price for each Licensed Product manufactured, used or sold in the U.S., or sold by

Licensee anywhere in the world if manufactured in the U.S. In consideration of the

royalty-free Cross-License Grant in Section 1.2 and a pre-paid, non-refundable

Royalty payment of $250,000.00 US (“Pre-Paid Royalty”) due within 10 days of

the Effective Date, Licensor agrees to modify the Royalty to be (i) a fixed fee of

$20.00 US for each Licensed Product manufactured in the U.S. and shipped

anywhere in the world, less Excluded Units; and (ii) after the Pre-Paid Royalty is

allocated to the Licensed Products, Licensee shall have the option to buy-out the

Royalty for the balance of the Term for a one-time Royalty payment of $500,000.00

US, less any Royalties paid in excess of the Pre-Paid Royalty. As used herein,

“Excluded Units” means Licensed Products that are returns, warranty

replacements, write-offs, promotional units, including demonstration and

evaluation units, donations, and sponsorship or pro-staff units.

(Id.) The Agreement also specified the timing and method for royalty payments, required Ravin to

supply TenPoint with reports to substantiate all royalty payments, and allowed for independent

audits at TenPoint’s request. (See id. §§ 2.2–2.3.)

The parties agree that, in November 2015, Ravin timely paid TenPoint the $250,000 pre-

paid royalty. They also generally agree that, at some point during the third quarter of 2017, Ravin’s

sales resulted in the exhaustion of the pre-paid royalty of $250,000, based upon allocation of the

$20-per-crossbow royalty. They agree that, on or about May 3, 2018, Ravin purported to advise

TenPoint that it was exercising its early buy-out right under the Agreement and sent TenPoint a

payment in the amount of $257,120, purportedly computed according to the contractual buy-out

formula. There is no dispute that TenPoint received the notice and the payment,5 that TenPoint

refused (and still refuses) to concede that Ravin properly exercised the buy-out right, and that

TenPoint continues to demand royalty reports and royalty payments from Ravin.

Ravin asserts that it properly exercised its buy-out option. TenPoint argues that Ravin’s

attempt at a buy-out was ineffective (and waived) because it was not timely exercised.

5 The parties also agree that TenPoint eventually returned the $257,120 check to Ravin uncashed. (Doc. No. 41,

Countercl. ¶ 29; Doc. No. 61, Reply to Countercl. ¶ 29.)

After well over a year of proceedings in the case with little progress toward resolution and

following numerous discovery disputes, the Court conducted a status conference with counsel and

party representatives. Following a lengthy discussion, and with the agreement of counsel and

parties, the Court stayed all matters (including motions and discovery disputes) pending resolution

“with respect to two issues under [the parties’ Agreement] that may be dispositive of all issues in

the case[.]” (Doc. No. 83, Order at 815.) The Court ordered:

1. Audit under § 2.3 of the Agreement: By December 31, 2019, the parties shall

complete an audit1 under § 2.3 of the Agreement to determine whether, when

plaintiff purportedly exercised its option under § 2.1 of the Agreement to buy out

the license with a one-time payment of $500,000 less any royalties paid in excess

of the pre-paid royalty (after first making its pre-paid non-refundable royalty

payment of $250,000 under that section), plaintiff properly calculated the “royalties

paid in excess of the pre-paid royalty.”

1 By November 21, 2019, the parties shall agree on a reputable accounting firm to

conduct this audit under the Agreement. Should they be unable to agree, they shall

submit by that date the names of three (3) accounting firms and the Court will

thereafter make the selection.

2. Briefing on Construction of § 2.1 of the Agreement: The parties agreed that

two fundamental issues are in dispute — (a) whether plaintiff’s exercise of the

“buy-out” option was exercised timely under the terms of the cont[r]act; and (b)

whether, at the time of plaintiff’s exercise, it still possessed the option (in light of

royalty payments already made as of that date). The Court directs briefing on these

two issues as follows: plaintiff’s opening brief, not to exceed 20 pages, shall be due

on December 13, 2019; defendant’s response brief, not to exceed 20 pages, shall be

due on January 17, 2020; and plaintiff’s reply brief, not to exceed 10 pages, shall

be due by January 31, 2020. No surreply brief will be permitted unless ordered by

the Court.

(Id. at 815–16 (footnote in original).)

On December 13, 2019, pursuant to the above order, plaintiff filed the instant motion.

On December 30, 2019, the parties jointly moved to extend the royalty audit deadline to

January 21, 2020 (see Doc. No. 88), which the Court granted the next day. There was no request

to extend the January 17, 2020 deadline for TenPoint’s brief in response to Ravin’s motion and it

was timely filed on that date.

Then, on January 21, 2020, Ravin moved for a further extension of the royalty audit

deadline to February 25, 2020 (see Doc. No. 90), which TenPoint opposed (see Doc. No. 94). The

Court granted the extension. It further extended to March 20, 2020 Ravin’s deadline to file its reply

with respect to the instant motion, and also ordered, over Ravin’s objection, that TenPoint would

be permitted to file a surreply by April 3, 2020. (See Doc. No. 95.)

Briefing on the two issues outlined in the MOO cited above is now complete and ripe for

resolution.

II. LEGAL STANDARD

Under Ohio law,6 “the interpretation of written contract terms, including the determination

of whether those terms are ambiguous, is a matter of law for initial determination by the court.”

Savedoff v. Access Grp., Inc., 524 F.3d 754, 763 (6th Cir. 2008) (citing cases applying Ohio law);

see also Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 474 N.E.2d 271, 272–

73 (Ohio 1984) (“If a contract is clear and unambiguous, then its interpretation is a matter of law

and there is no issue of fact to be determined. However, if a term cannot be determined from the

four corners of a contract, factual determination of intent or reasonableness may be necessary to

supply the missing term.” (citations omitted)).

“When confronted with an issue of contract interpretation, [a court’s] role is to give effect

to the intent of the parties.” Sunoco, Inc. (R&M) v. Toledo Edison Co., 953 N.E.2d 285, 292 (Ohio

2011). To that end, courts should “examine the contract as a whole and presume that the intent of

the parties is reflected in the language of the contract.” Id. In addition, courts should “look to the

plain and ordinary meaning of the language used in the contract unless another meaning is clearly

apparent from the contents of the agreement.” Id.; see also Alexander v. Buckeye Pipe Line Co.,

6 There is no dispute that, under Section 7.5 of the Agreement, Ohio law governs its construction.

274 N.E.2d 146, 150 (Ohio 1978) (“common words appearing in a written instrument are to be

given their plain and ordinary meaning unless manifest absurdity results or unless some other

meaning is clearly intended from the face or overall contents of the instrument”). “When the

language of a written contract is clear, a court may look no further than the writing itself to find

the intent of the parties.” Sunoco, Inc. (R&M), 953 N.E.2d at 292.

Courts may use extrinsic evidence to determine the parties’ intent only if the contract is

ambiguous. Shifrin v. Forest City Enters., Inc., 597 N.E.2d 499, 501 (Ohio 1992). “As a matter of

law, a contract is unambiguous if it can be given a definite legal meaning.” Westfield Ins. Co. v.

Galatis, 797 N.E.2d 1256, 1261 (Ohio 2003) (citation omitted). “Ambiguity exists only when a

provision at issue is susceptible of more than one reasonable interpretation.” Lager v. Miller–

Gonzalez, 896 N.E.2d 666, 669 (Ohio 2008).

“[These] principles of contract interpretation establish that ordinarily judges interpret the

language of contracts as a matter of law.” Royal Ins. Co. of Am. v. Orient Overseas Container Line

Ltd., 525 F.3d 409, 421 (6th Cir. 2008).

III. DISCUSSION

In this case, as in Orient Overseas Container Line, supra, “none of the parties have argued

that the contract is ambiguous or that a factual controversy exists regarding [their] contractual

intent, which would require resolution by a fact-finder. . . . Both sides argue that the plain language

of the contract unambiguously favors the interpretations they advance.” Id. at 422. Therefore, “the

only questions of contract interpretation in this case are matters of law[.]” Id.

Ravin argues that the Agreement is “straightforward and unambiguous,” and “reasonably

susceptible of only one interpretation[.]” (Mot. at 836.) As a result, “the Court cannot review

extrinsic evidence to interpret or vary its clear language[.]” (Id.) Ravin claims that Section 2.1 can

be interpreted in only one way:

Ravin had the option to buy out the Royalty for the balance of the Term by paying

TenPoint $500,000 less the incremental Royalties Ravin paid in excess of the Pre-

Paid Royalty. The parties specified how (“one-time Royalty payment”) and at what

price (“$500,000.00 US, less any Royalties paid in excess of the Pre-Paid Royalty”)

Ravin could exercise its Buyout right.

(Id. at 836–37, internal citations omitted.)

TenPoint argues that the Agreement “contains two separate agreements.” (Opp’n at 887.)

TenPoint describes these as follows:

The main agreement, inter alia, allows Ravin to practice TenPoint’s patents in

consideration for royalty payments. That main agreement also grants Ravin an

option: TenPoint agreed to hold open a separate offer for Ravin to buy out the

royalty payments for the balance of the term of the Agreement. (Id.) This option’s

offer, acceptance, and consideration terms are as follows:

In consideration of the royalty-free Cross-License Grant in Section

1.2 and a pre-paid, non-refundable Royalty payment of $250,000.00

US (“Pre-Paid Royalty”) due within 10 days of the Effective Date,

Licensor agrees to modify the Royalty to be (i) a fixed fee of $20.00

US for each Licensed Product manufactured in the U.S. and shipped

anywhere in the world, less Excluded Units; and (ii) after the Pre-

Paid Royalty is allocated to the Licensed Products, Licensee shall

have the option to buy-out the Royalty for the balance of the Term

for a one-time Royalty payment of $500,000.00 US, less any

Royalties paid in excess of the Pre-Paid Royalty.

(Id., internal citation omitted; quoting Agreement § 2.1 (underlying in original; italics added in

brief).) According to TenPoint, once the prepaid royalty is allocated to the licensed products, “the

option ripens and could be accepted by a ‘one-time Royalty payment of $500,000 US, less any

Royalties paid in excess of the Pre-Paid Royalty.’” (Id.)7 Then, if Ravin “properly and timely

7 One Ohio appellate court explains option contracts under Ohio law as follows:

An option contract consists of two independent elements: (1) an offer to buy, sell, or perform some

act, which becomes a contract if properly accepted; and (2) the binding agreement to leave the offer

open for a specified period of time. Aldahan v. Tansky Sales, Inc. (June 20, 2000), Franklin App.

No. 99AP–651; Stuller v. Levering (Aug. 23, 1996), Knox App. No. 95–CA–26. Thus, an option is

accepted the collateral offer held open by the option, with sufficient consideration, this would

result in an agreement to modify the main underlying agreement such that royalty payments would

not be required further.” (Id.)8

In reply, Ravin urges the Court to reject TenPoint’s invitation to “spawn[] one agreement

into two” (Reply at 956), arguing that TenPoint’s contractual construction is not “premised on a

coherent reading of Section 2.1 of the Agreement, nor any other language in the Agreement.” (Id.

at 957.) In Ravin’s view, the Agreement is “one integrated agreement” with several promises

supported by one consideration. (Id. (citing Fuchs v. United Motor Stage Co., 22 N.E.2d 1011,

1013 (Ohio Ct. App. 1938).) Ravin claims that “‘[t]he contract construction urged by [TenPoint]

would not be a construction at all but would amount to the making of a new contract for the parties

which is not the function of the court.’” (Id. (quoting Aultman Hosp. Ass’n v. Cmty. Mut. Ins., Co.,

544 N.E.2d 920, 923–24 (Ohio 1989)).)

The fundamental dispute in this case is over the meaning of “after” in Section 2.1 of the

Agreement. Ravin’s view is expansive (that its buy-out option could be exercised at any time

within the term of the Agreement so long as it was after the triggering event), whereas TenPoint’s

a continuing offer, as well as a unilateral contract, binding the offeror of the option. Leb v. Hoover

Co. (Dec. 28, 1982), Stark App. No. C.A. 5717. “An option to buy may be exercised by giving

notice of an intention to purchase; such a notice is in effect an acceptance of the offer to sell.”

Rossman & Co. v. Donaldson (Dec. 6, 1994), Franklin App. Nos. 94APE03–388, 94APE03–389

and 94APE03–695. Although the holder of the option is not required to exercise it, once the option

is exercised, a bilateral contract arises between the parties to the option to perform in accordance

with the option terms. 1 Williston on Contracts (Lord Rev.1990) 726–727, Section 5:16.

Cent. Funding, Inc. v. CompuServe Interactive Servs., Inc., No. 02AP-0972, 2003 WL 22177226, at *8 (Ohio Ct. App.

Sept. 23, 2003).

8 TenPoint offers argument in both its brief in opposition and its surreply regarding the sufficiency of the consideration

that Ravin was required to pay in order to accept the option offer (assuming it had been timely exercised). (See Opp’n

at 888–90; Surreply, passim.) The question is whether Ravin paid enough when it attempted to exercise the option.

To that end, the parties requested, and the Court granted, that an independent royalty audit be conducted. Given the

Court’s conclusion herein that Ravin failed to timely exercise the option, the Court need not address this portion of

TenPoint’s argument.

view is more narrow (that Ravin needed to exercise the option within a reasonable time after the

triggering event). Given this conflict of meaning, the Court must undertake construction of the

contract, applying Ohio law.

Even if the Court were to construe Section 2.1 as containing a separate “option contract”—

that is, a continuing offer—TenPoint’s argument fails to address the fact that Section 2.1 contains

no express time for the exercise of the option. It merely says that it can be exercised “after” the

single triggering event—the full allocation of the $250,000 pre-paid royalty. The contract does not

say “immediately after” or “upon,” nor does it specify a particular number of days (as it does for

the payment of the pre-paid royalty (i.e., “within 10 days of the Effective Date”), nor does it state

that “time is of the essence.”

That said, “[a]n offer without time given for its acceptance must be accepted immediately,

or not at all[.]” Longworth v. Mitchell, 26 Ohio St. 334, 342 (1875). Therefore, under Longworth,

if Section 2.1 is to be viewed as an option provision, one might conclude that “after” means

“immediately after” the triggering event, or at the very least, within a reasonable time after the

triggering event. See Lake Ridge Acad. v. Carney, 613 N.E.2d 183, 187 (Ohio 1993) (the option

may not be exercised after the relevant time has passed) (citing Longworth); 17 Ohio Jur. 3d § 20

(“[T]he offer, as well as the power to accept it, terminates at the time specified in the offer or, if

no time is specified, at the end of a reasonable time.”). Further, if an option provides for the time

of acceptance but is silent as to manner, “it is sufficient to give timely notice and then later tender

performance within a reasonable time.” Kenney v. Chesapeake, 31 N.E.3d 136, 150–51 (Ohio Ct.

App. 2015) (citing In re Estate of de Saint–Rat, No. CA2007-02-052, 2008 WL 1932485, at *3

(Ohio Ct. App. May 5, 2008) (further citation omitted)).

Here, the parties agree that the triggering event occurred roughly around September 2017,

and that Ravin did not attempt to exercise the option until May 2018. They disagree on whether

this exercise was timely under the Agreement.

Reading the Agreement as a whole,9 which Ohio contract law requires, the Court concludes

that TenPoint’s view as to the requisite timing for the exercise of the option is generally correct.

That is, “after” is used in Section 2.1 in the sense that, “upon” completion of the target event (i.e.,

the full allocation of the $250,000 prepaid royalty), the option may (but need not) be exercised.

Further, since “a party may exercise its option only in the manner provided in the contract[,]” Lake

Ridge Academy, 613 N.E.2d at 187 (emphasis in original), the Court looks to the contract for

guidance as to the method and specific timing for Ravin’s exercise and payment.

Here, the Agreement required Ravin to make royalty payments quarterly according to a

schedule set forth in Section 2.2. The parties agree that, some time during the third quarter of 2017

(i.e., between July 1, 2017 and September 30, 2017), the allocation of royalties against the prepaid

amount was exhausted, triggering Ravin’s right to exercise the buy-out. (Mot. at 831; Opp’n at

881.) Under the royalty payment schedule set by the Agreement, the 2017 third quarter royalty

payment was due no later than November 14, 2017. That date would have been the first opportunity

for Ravin to exercise the buy-out option “in the manner provided in the contract.” There was no

need for Ravin to exercise the option mid-quarter, that is, as soon as the prepaid royalty was

9 This is a Patent License Agreement. In exchange for TenPoint allowing Ravin to practice TenPoint’s patents, Ravin

agreed to pay royalties. It is no more complicated than that. Ravin also had the option of limiting the total amount it

would ever owe for royalties by paying a prepaid royalty of $250,000 (which lowered the royalty from 8% of the net

sales price to $20 for each licensed product), followed by timely buying out the remainder of the term for $500,000.

If, for whatever reason, Ravin did not exercise the buy-out, it would simply continue to pay $20 per licensed product

sold for the remainder of the term—which was defined very broadly in the Agreement. Most of the cases cited by both

parties are not particularly helpful because they address contracts where a failure to timely perform amounts to a

breach of the contract. That is not the case here.

exhausted (although there is also nothing in the language prohibiting such a prompt exercise), and

TenPoint does not argue otherwise.

Therefore, the Court concludes that Ravin should have exercised its buyout option under

the Agreement on (or before) November 14, 2017.

As an alternative, it would also have been “reasonable” for Ravin to notify TenPoint at the

time of its November 14, 2017 royalty payment of its intent to exercise the option (because it had

exhausted the prepaid royalty), while waiting until its next quarterly royalty payment on February

14, 2018 to pay, that is, to perform the option requirement. To reach this conclusion, the Court

finds guidance in Ohio law.

In Estate of de Saint-Rat, cited by Kenney v. Chesapeake, supra, a party gave timely notice

of her intent to exercise an option to purchase certain real estate, but did not simultaneously tender

the purchase price. The probate court ruled that, because the option contract—a settlement

agreement—was silent as to when the purchase price had to be paid, the party was not required to

pay at the time she timely exercised the option and, further, that 60 days was a “reasonable time”

for her to pay the purchase price. 2008 WL 1932485, at * 1. The court of appeals affirmed.

Here, after the pre-paid royalty was exhausted, it would have been reasonable for Ravin to

have given notice to TenPoint at the time of its very next royalty deadline (November 14, 2017)

of its intent to exercise its option, while waiting until the second-next royalty deadline (February

14, 2018) to make the actual performance payment.

Therefore, the Court concludes that, for Ravin to properly and completely exercise the

option under the terms of the Agreement, it should have done so between November 14, 2017 and

February 14, 2018, and could have properly acted in two steps: notice of intent, followed by

payment.10

Instead Ravin attempted to exercise the option in May 2018, when it made its 2018 first

quarter royalty payment. (Mot. at 832; Opp’n at 882; Countercl. Ex. 2 [Doc. No. 41-2].) By that

time, the option had expired under the terms of the Agreement. No reasonable person would

believe that the intent of the parties was to allow Ravin to exercise the option at any time between

the triggering event and the end of the Agreement’s term (which is defined, in part, as “continu[ing]

until the last to expire of the Licensed Patents and the Cross-Licensed Patent . . . expires[]”)

(Agreement § 6.1).

If the buy-out window were interpreted in that broad a fashion, it would permit exercise of

the option so many quarters after it had been triggered, and so late in the term, that Ravin could

have unilaterally converted the second half of § 2.1 of the Agreement (i.e., the potential royalty

cap) into the primary contract, rather than merely an option, effectively nullifying the first half of

§ 2.1 of the Agreement (i.e., the agreed royalty payment of $20 for each licensed product through

the end of the term, in the absence of the timely exercise of the option provision). “‘In the

construction of a contract courts should give effect, if possible, to every provision therein

contained, and if one construction of a doubtful condition written in a contract would make that

condition meaningless, and it is possible to give it another construction that would give it meaning

and purpose, then the latter construction must obtain.’” Foster Wheeler Enviresponse, Inc. v.

Franklin Cty. Convention Facilities Auth., 678 N.E.2d 519, 526 (Ohio 1997) (quoting Farmers

10 The probate court in Estate of de Saint-Rat determined, and the court of appeals affirmed, that, as a matter of law,

60 days for payment was “reasonable” because, in another portion of the same settlement agreement 60 days had been

set as the time frame for a different payment. Here, the parties’ Agreement contemplates quarterly royalty payments.

Therefore, those quarterly deadlines are “reasonable” deadlines for performance of the option requirements under the

Agreement.

Bank vy. Delaware Ins. Co., 94 N.E. 834 (Ohio 1911), paragraph six of the syllabus). The

construction herein gives meaning to the entirety of § 2.1 in the context of the whole Agreement.

The Court concludes, on the limited issue before it, that Ravin did not timely or effectively

exercise the buy-out option under the Agreement.!!

IV. CONCLUSION

For the reasons set forth herein, the Court concludes that, under the terms of the Patent

License Agreement between the parties, construed under Ohio law, plaintiff Ravin Crossbows,

LLC did not timely exercise the buy-out option in Section 2.1, and Ravin’s motion for summary

judgment is denied.

The parties shall now confer and, by August 7, 2020, submit a joint report as to what issues

remain for resolution and how they propose these issues be addressed. In addition, they shall

indicate whether they are amenable to additional mediation. The Court will conduct a telephone

conference with counsel on August 14, 2020 at 3:00 p.m. to discuss a plan for going forward;

directions for joining the call will be sent prior to the conference by email.

IT IS SO ORDERED.

Dated: July 29, 2020 S “.

HONORABLE SARA LIOI

UNITED STATES DISTRICT JUDGE

Ravin has asserted that the Agreement “capped” its royalties at $750,000 since it pre-paid $250,000. (Mot. at 843.)

TenPoint disagrees. (Opp’n at 890.) Obviously, if Ravin exercised the buy-out option, it would have, in effect, capped

the royalties at $750,000. Whether there is any such cap in the absence of the exercise of the option is a question

currently not before the Court, but the Court sees no support for any such construction in the Agreement.

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