AMENDMENT TO STANDBY EQUITY DISTRIBUTION AGREEMENT
Exhibit
10.1
AMENDMENT
TO
STANDBY EQUITY DISTRIBUTION AGREEMENT
This
AMENDMENT TO STANDBY EQUITY DISTRIBUTION AGREEMENT (this “Amendment”),
is
made effective as of June 14, 2006 (the “Effective
Date”),
by and
between CORNELL
CAPITAL PARTNERS, LP,
a
Delaware limited partnership (“Investor”);
and
ACACIA
RESEARCH CORPORATION,
a
Delaware corporation (the “Company”),
with
reference to the following recitals:
A. Investor
and the Company entered into that certain Standby Equity Distribution Agreement,
dated June 14, 2006 (the “Master
Agreement”).
B. Investor
and the Company wish to amend the definition of “Commitment Amount” in the
Master Agreement to be 13,024,924 shares of common stock.
FOR
GOOD
AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, Investor and the Company agree as follows:
1. Commitment
Amount
Section
1.9 of the Master Agreement is hereby amended and restated as
follows:
“Commitment
Amount”
shall
mean the aggregate amount of Fifty Million Dollars ($50,000,000) which the
Investor has agreed to provide to the Company in order to purchase the Shares
of
Common Stock pursuant to the terms and conditions of this Agreement,
provided
that,
the Company shall not effect any sale under this Agreement and the Investor
shall not have the right or the obligation to purchase Shares of Common Stock
under this Agreement to the extent that after giving effect to such purchase
and
sale the aggregate number of shares issued under this Agreement would exceed
13,024,924 shares of the Company’s capital stock regardless of class (which is
less than 20% of the 66,876,811 outstanding shares of the Company’s capital
stock regardless of class as of the date of this Agreement) unless or until
the
Company obtains any necessary shareholder approval or consent in accordance
with
Nasdaq rules prior to such issuance.
2. Definitions.
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to them under the Master Agreement, and if not defined in the Master Agreement
shall have the meaning ascribed to them in the Operating Agreement.
3. Non-Impairment.
Except
as expressly modified herein, the Master Agreement shall continue in full
force
and effect, and the parties hereby reinstate and reaffirm the Master Agreement
as modified herein.
4. Inconsistencies.
In the
event of any inconsistency, ambiguity or conflict between the terms and
provisions of this Amendment and the terms and provisions of the Master
Agreement, the terms and provisions of this Amendment shall
control.
5. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which when
executed will be deemed an original and all of which, taken together, well
be
deemed to be one and the same instrument.
IN
WITNESS WHEREOF, the parties have executed this Amendment effective as of
the
date first written above.
INVESTOR:
|
COMPANY:
|
Cornell
Capital Partners, LP
|
Acacia
Research Corporation
|
By: Yorkville
Advisors, LLC
|
By: /s/
Xxxx X. Xxxx
|
Its: General
Partner
|
Name: Xxxx
X. Xxxx
|
Title: Chairman
& Chief Executive Officer
|
|
By:
/s/
Xxxx Xxxxxx
|
|
Name: Xxxx
Xxxxxx
|
|
Title: Portfolio
Manager
|
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