EXHIBIT 10.1
ACACIA RESEARCH CORPORATION
COMMON STOCK PURCHASE AGREEMENT
FEBRUARY 9, 2005
TABLE OF CONTENTS
Page
1. Purchase and Sale of Common Stock....................................1
1.1 Sale and Issuance of Shares.................................1
1.2 Closing.....................................................1
2. Representations and Warranties of the Company........................1
2.1 Organization; Good Standing; Qualification..................1
2.2 Authorization...............................................1
2.3 Consents....................................................2
2.4 Capitalization..............................................2
2.5 Financial Statements........................................2
2.6 Compliance With Law.........................................3
2.7 Compliance With Other Instruments...........................3
2.8 Litigation..................................................3
2.9 SEC Reports.................................................3
2.10 Form S-3A...................................................4
2.11 Changes.....................................................4
2.12 Material Contracts..........................................4
2.13 Valid Issuance..............................................4
2.14 Offering....................................................4
2.15 No Brokers or Finders.......................................5
2.16 Investment Company Act......................................5
3. Representations and Warranties of the Investors......................5
3.1 Requisite Power and Authority...............................5
3.2 Investment Representations..................................5
4. Conditions of the Investors' Obligations at Closing..................6
4.1 Representations and Warranties..............................6
4.2 Performance.................................................6
4.3 Compliance Certificate......................................6
4.4 Qualifications..............................................6
4.5 Shares Registered...........................................6
4.6 Investors' Rights Agreement.................................6
5. Conditions of the Company's Obligations at Closing...................6
5.1 Representations and Warranties..............................6
5.2 Performance of Obligations..................................6
5.3 Qualifications..............................................7
6. Lock Up Periods......................................................7
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7. Miscellaneous........................................................7
7.1 Entire Agreement............................................7
7.2 Survival of Warranties......................................7
7.3 Successors and Assigns......................................7
7.4 Governing Law...............................................7
7.5 Waiver of Jury Trial........................................8
7.6 Counterparts; Facsimile Signatures..........................8
7.7 Titles and Subtitles........................................8
7.8 Notices.....................................................8
7.9 Brokers/Finders' Fees.......................................8
7.10 Expenses....................................................8
7.11 Certain Definitions.........................................8
7.12 Amendments and Waivers......................................9
7.13 Severability................................................9
7.14 Effect of Amendment or Waiver...............................9
7.15 Publicity...................................................9
7.16 Exculpation Among Investors.................................9
7.17 Delays or Omissions........................................10
LIST OF SCHEDULES:
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Schedule A Schedule of Investors
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ACACIA RESEARCH CORPORATION
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered into on February 9, 2005, by and among Acacia Research Corporation, a
Delaware corporation (the "Company"), and the investors listed on SCHEDULE A
hereto (each, an "Investor" and collectively, the "Investors").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Common Stock.
1.1 SALE AND ISSUANCE OF SHARES. Subject to the terms and conditions of
this Agreement, each Investor agrees to purchase at the Closing and the Company
agrees to sell and issue to each Investor, severally and not jointly, at the
Closing that number of shares of the Company's Acacia Research-Acacia
Technologies Common Stock, par value $0.001 (the "Shares"), set forth opposite
each Investor's name on Schedule A hereto at a price of $5.60 per Share.
1.2 CLOSING. The purchase and sale of the Shares shall take place at
the offices of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, at 3:00 p.m. on February 9, 2005, or at such other time and
place as the Company and the Investors acquiring in the aggregate more than half
of the Shares sold pursuant hereto shall mutually agree, either orally or in
writing (which time and place are designated as the "Closing"). At the Closing,
the Company shall deliver to each Investor a certificate representing the Shares
that such Investor is purchasing against payment of the purchase price therefor
by check, wire transfer, or such other form of payment as shall be mutually
agreed upon by such Investor and the Company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Investor that with respect to the Company and
each of its subsidiaries (which for the purposes of this Section 2 are referred
to collectively as the "Company" unless the context makes clear that the
representation speaks to the Company alone):
2.1 ORGANIZATION; GOOD STANDING; QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Company is duly qualified to do business and is in
good standing as a foreign corporation in all jurisdictions in which the nature
of its activities and of its properties (both owned and leased) makes such
qualification necessary, except for those jurisdictions in which failure to do
so would not have a Material Adverse Effect (as hereinafter defined).
2.2 AUTHORIZATION. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement, the performance of all obligations of the
Company hereunder and the authorization, issuance (or reservation for issuance),
sale and delivery of the Shares being sold hereunder has been taken or will be
taken prior to the Closing. This Agreement constitutes a valid and legally
binding obligation of the Company, enforceable in accordance with its terms
except (a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting enforcement of
creditors' rights, and (b) as limited by laws relating to the availability of
specific performance, injunctive relief or other equitable remedies.
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2.3 CONSENTS. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority or Nasdaq is required in
connection with the consummation of the transactions contemplated by this
Agreement, except for such filings as have already been made and been declared
effective.
2.4 CAPITALIZATION.
(a) The Prospectus accurately sets forth the authorized and
outstanding capital stock of the Company. As of the date of this Agreement, the
aggregate number of shares of restricted stock and options to purchase shares of
Common Stock which may be issued under the Company's stock option plans is as
set forth in the Prospectus. All of the outstanding capital stock of the Company
has been duly authorized and validly issued and is fully paid and
non-assessable.
(b) Except as set forth in the Prospectus, there are no
options, warrants, conversion privileges, subscription or purchase rights or
other rights presently outstanding to purchase or otherwise acquire (A) any
authorized but unissued, unauthorized or treasury shares of the Company's
capital stock, (B) any stock equivalents or (C) any other securities of the
Company and there are no commitments, contracts, agreements, arrangements or
understandings to which the Company is a party to issue any shares of the
Company's capital stock or any stock equivalents or other securities of the
Company.
(c) The Company owns all of the shares of its subsidiaries
free and clear of any and all encumbrances and no third party has any option to
acquire any interest in any such entity.
2.5 FINANCIAL STATEMENTS. Each of the financial statements, together
with the related notes, included in the SEC Documents (as defined below) filed
with the United States Securities and Exchange Commission (the "SEC") complied
as to form, as of its date of filing with the SEC, with all applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto and present fairly in all material respects the consolidated
financial position of the Company and its subsidiaries as of and at the dates
indicated and the consolidated results of their operations and cash flows and
stockholder's equity for the periods specified. Such financial statements have
been prepared in conformity with U.S. generally accepted accounting principles
on a consistent basis throughout the periods involved ("GAAP"), except as may be
expressly stated in the related notes thereto. All non-GAAP financial measures
included or incorporated by reference in the Financial Statements comply in all
material respects with Regulation G and the applicable requirements of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") and the rules and
regulations promulgated by the Commission thereunder. The report of the
Company's independent auditors regarding the Company's consolidated financial
statements as of and for the periods ended December 31, 2003 and filed as part
of the Company's Annual Report on Form 10-K for the year ended December 31, 2003
has not been withdrawn, supplemented or modified, and the Company has received
no communication from its independent auditors concerning any such withdrawal,
supplement or modification.
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2.6 COMPLIANCE WITH LAW. To its knowledge, the Company is not in
violation, and has not received any notice of violation, of any applicable
statute, rule, regulation, order or restriction of any domestic or foreign
government or any instrumentality or agency thereof in respect of the conduct of
its business or the ownership of its properties, which violation would have a
Material Adverse Effect (as hereinafter defined).
2.7 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in violation,
and has not received any notice of violation, of any provision of its charter
documents nor, to its knowledge, in any material respect, of any agreement,
instrument, judgment, order, writ, decree or contract, statute, rule or
regulation to which the Company is a party or is subject and a violation of
which would have a Material Adverse Effect (as hereinafter defined). The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not result in any such violation, or
be in conflict with or constitute, with or without the passage of time and
giving of notice, either a default under any such provision or an event that
results in the creation of any lien, charge or encumbrance upon any assets of
the Company or the termination, suspension, revocation, impairment, forfeiture
or nonrenewal of any material agreement, instrument, permit, license,
authorization or approval applicable to the Company, its business or operations
or any of its assets or properties.
2.8 LITIGATION. There is no action, suit or proceeding pending, or to
the Company's knowledge, currently threatened against the Company that questions
the validity of this Agreement or the right of the Company to enter into such
agreement or to consummate the transactions contemplated hereby, or that might
result, either individually or in the aggregate, in any Material Adverse Effect,
or that is required to be disclosed in the Company's SEC Documents and that is
not so disclosed. The Company is not a party or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or government agency or
instrumentality that (x) is required to be disclosed in the Company's SEC
Documents and that is not so disclosed or (y) would reasonably be expected to,
individually or in the aggregate, result in a Material Adverse Effect.
2.9 SEC REPORTS. The Company has filed with the United States
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended (the "Securities Act") and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), all reports, definitive proxy materials and
registration statements for all periods ending on or subsequent to December 31,
2003 and on or prior to the date hereof (all of the foregoing being collectively
referred to as the "SEC Documents"), which are all such documents (other than
preliminary proxy materials) that the Company was required to file with the SEC
since December 31, 2003 through the date of this Agreement. As of their
respective filing dates, the SEC Documents complied in all material respects
with the requirements of the Securities Act, the Exchange Act and the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations promulgated thereunder. None of
the SEC Documents contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they were made,
not misleading.
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2.10 FORM S-3A. A registration statement on Form S-3A with respect to,
among other securities, Common Stock (including all documents incorporated by
reference therein and all information contained in any prospectus or prospectus
supplement filed a part or deemed to be a part of such registration statement,
each as amended, the "Registration Statement") was (i) prepared by the Company
in conformity with the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and the rules and regulations, including Rule 415 of the
SEC thereunder (the "Rules and Regulations"), (ii) filed with the Commission on
March 17, 2004, File #333-112885, and (iii) declared and remains effective. The
Company has prepared a prospectus (including a prospectus supplement) dated
February 9, 2005, relating to the sale of the Shares hereunder (collectively,
the "Prospectus"). The Registration Statement and the Prospectus conform in all
material respects to the requirements of the Securities Act and the Rules and
Regulations and do not and will not, as of the applicable effective date (as to
the Registration Statement and any amendment thereto) and as of the applicable
filing date (as to the Prospectus and any amendment or supplement thereto) and
as of the Closing contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The issuance of the Shares to the Investor
has been registered under the Registration Statement and, as a result of such
registration, the Shares will be transferable without restriction under the
Securities Act so long as the Investor does not become an Affiliate of the
Company.
2.11 CHANGES. Except as may be disclosed in the SEC Documents filed
prior to the date hereof, since December 31, 2003, there has not been,
individually or in the aggregate, any material adverse effect on the business,
condition (financial or otherwise), results of operations or prospects of the
Company (a "Material Adverse Effect") or any fact, event, change, development,
circumstance or effect that would reasonably be expected to result in a Material
Adverse Effect. Without limiting the generality of the foregoing, the Company
has no direct or indirect obligation or liability (the "Liabilities") that is
not fully reflected or reserved against in the Financial Statements for which
the Company is required to reserve against under GAAP. The Company has no
knowledge of any circumstance, condition, event or arrangement that could
reasonably be expected to give rise hereafter to any Liabilities of the Company
that, individually or in the aggregate, could have a Material Adverse Effect.
2.12 MATERIAL CONTRACTS. As of the date hereof, except as set forth in
the Company's SEC Documents filed prior to the date hereof, the Company is not a
party to or bound by any "material contract" (as term is defined in Item
601(b)(10) of Regulation S-K of the SEC).
2.13 VALID ISSUANCE. The issuance, sale and delivery of the Shares in
accordance with this Agreement have been duly authorized by all necessary
corporate action on the part of the Company. The Shares, when issued, sold and
delivered against payment therefor in accordance with this Agreement, will be
free and clear of all liens and other encumbrances (except as imposed pursuant
to this Agreement or otherwise imposed by any Investor), duly and validly
issued, fully paid and non-assessable and free from any preemptive rights.
2.14 OFFERING. The Common Stock is registered pursuant to Section 12(g)
of the Exchange Act and is admitted for quotation on the Nasdaq, and the Company
has taken no action designed to, or likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act or delisting or
disqualifying the Common Stock from Nasdaq, nor has the Company received any
notification that the SEC or Nasdaq is contemplating terminating such
registration or admission for quotation.
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2.15 NO BROKERS OR FINDERS. No person, entity, broker, finder,
investment banker or other intermediary has been retained by or is authorized to
act on behalf of the Company, or is entitled to or could reasonably be expected
to be entitled to any brokerage, finder's or other fee or commission from the
Company in connection with the negotiation, preparation, execution or delivery
of this Agreement or the transactions contemplated hereby.
2.16 INVESTMENT COMPANY ACT. The Company is not and, after giving
effect to the offering and sale of the Offered Securities, will not be an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. Each Investor
hereby represents and warrants, severally and not jointly, to the Company, that:
3.1 REQUISITE POWER AND AUTHORITY. Investor has all necessary power and
authority to execute and deliver this Agreement and to carry out its provisions.
All action on Investor's part required for the lawful execution and delivery of
this Agreement has been taken. Upon execution and delivery, this Agreement will
be valid and binding obligations of Investor, enforceable in accordance with its
terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights, and (b) as limited by general principles of
equity that restrict the availability of equitable remedies.
3.2 INVESTMENT REPRESENTATIONS. Investor hereby represents and warrants
as follows:
(a) Such Investor has reviewed the SEC Documents, and has
acquired sufficient information about the Company to reach an informed and
knowledgeable decision to purchase the Shares. Such Investor has had access to
information about the Company and its Affiliates that it has requested and has
had an opportunity to discuss the business affairs and financial condition of
the Company and its Affiliates with the officers of the Company.
(b) Such Investor is acquiring the Shares solely for the
purpose of investment (as defined in 16 CFR 801.1(i)(1)) and has no present
intention of participating in the formulation, determination or direction of the
basic business decisions of the Company.
(c) Such Investor has received and reviewed a copy of the
Prospectus, dated March 17, 2004, contained in the Registration Statement, as
supplemented by the Prospectus supplement dated April 14, 2004. Such Investor
acknowledges and agrees that the Company has not and will not provide the
Investor or any other person or entity with a Prospectus for use by such person
or entity in selling any of the Shares except as may be required by the
Investors' Rights Agreement (defined below).
(d) NO BROKERS OR FINDERS. No person, entity, broker, finder,
investment banker or other intermediary has been retained by or is authorized to
act on behalf of Investor, or is entitled to or could reasonably be expected to
be entitled to any brokerage, finder's or other fee or commission from the
Company or Investor in connection with the negotiation, preparation, execution
or delivery of this Agreement or the transactions contemplated hereby.
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4. CONDITIONS OF THE INVESTORS' OBLIGATIONS AT CLOSING. The obligations
of each Investor to purchase the Shares at Closing are subject to the
fulfillment on or before the Closing of each of the following conditions, the
waiver of which shall not be effective against any Investor who does not consent
in writing thereto:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Company contained in Section 2 shall be true and correct as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of the Closing.
4.2 PERFORMANCE. The Company shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
4.3 COMPLIANCE CERTIFICATE. The President of the Company shall deliver
to each Investor at the Closing a certificate stating that the conditions
specified in Sections 4.1 and 4.2 have been fulfilled.
4.4 QUALIFICATIONS. All authorizations, approvals or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state or Nasdaq that are required in connection with the lawful issuance and
sale of the Shares pursuant to this Agreement shall be duly obtained and
effective as of the Closing, except any notices of sale required to be filed
with applicable federal and state agencies, which will be timely filed within
the applicable periods therefor.
4.5 SHARES REGISTERED. The Shares shall have been accepted for and
approved for inclusion and quotation on the Nasdaq.
4.6 INVESTORS' RIGHTS AGREEMENT. The Company and the Investors
identified on Schedule B hereto shall have entered into an Investors' Rights
Agreement, substantially in the form attached as Exhibit A hereto (the
"Investors' Rights Agreement").
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations
of the Company to each Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by that
Investor:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Investor contained in Section 3 shall be true and correct in all material
respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing.
5.2 PERFORMANCE OF OBLIGATIONS. The Investor shall have performed and
complied with all agreements and conditions herein required to be performed or
complied with by the Investor on or before the Closing.
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5.3 QUALIFICATIONS. All authorizations, approvals or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall be duly obtained and effective as of the
Closing. Additionally, the issuance of the Shares shall be exempt from the
notification requirements of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976.
6. LOCK UP PERIODS. Until the Closing, Investor will not, directly or
indirectly, make or participate in any sale of shares of the Company's common
stock, including, without limitation, any "short sales" as defined in Rule 200
under Regulation SHO, whether or not short exempt, or sales of a long position.
7. Miscellaneous.
7.1 ENTIRE AGREEMENT. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and supersede all prior
agreements and understandings, written or oral, between the parties relating to
the subject matter hereof. No party shall be liable or bound to any other party
in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Each party expressly represents and
warrants that it is not relying on any oral or written representations,
warranties, covenants or agreements outside of the Agreement or the documents to
be delivered at the Closing that are contemplated herein.
7.2 SURVIVAL OF WARRANTIES. The warranties, representations and
covenants of the Company and each Investor contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing for a period of one year following the Closing. Notwithstanding the
foregoing, Section 7 hereof shall continue to bind any person to whom the Shares
have been transferred and who has agreed in accordance with this Agreement to be
bound by the provisions of Section 7 for so long as such person beneficially
owns any of the Shares.
7.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
permitted transferees of any Shares sold hereunder). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
7.4 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California. The parties agree that any action brought by either party under or
in relation to this Agreement, including without limitation to interpret or
enforce any provision of this Agreement, shall be brought in, and each party
agrees to and does hereby submit to the jurisdiction and venue of, any state or
federal court located in Orange County, California.
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7.5 WAIVER OF JURY TRIAL. Each party acknowledges and agrees that any
controversy arising under this Agreement is likely to involve complicated and
difficult issues, and therefore each such party hereby irrevocably and
unconditionally waives any right such party may have to a trial by jury in
respect of any litigation directly or indirectly arising out of or relating to
this Agreement or the transactions contemplated by this Agreement. Each party
certifies and acknowledges that (i) no representative, agent or attorney of the
other party has represented, expressly or otherwise, that such other party would
not, in the event of litigation, seek to enforce the foregoing waiver, (ii) each
such party understands and has considered the implications of this waiver, (iii)
each such party makes this waiver voluntarily, and (iv) each such party has been
induced to enter into this Agreement by, among other things, the waivers and
certifications in this Section 7.5.
7.6 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one instrument. This Agreement may be
executed and delivered by facsimile and upon such delivery the facsimile
signature will be deemed to have the same effect as if the original signature
had been delivered to the other parties.
7.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.8 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed electronic mail, telex or
facsimile if sent during normal business hours of the recipient, if not, then on
the next business day, (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one (1) day
after deposit with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt. All communications shall be
sent to the Company and to the Investors at their respective addresses as set
forth herein or at such other address or electronic mail address as the Company
or Investor may designate by ten (10) days advance written notice to the other
parties hereto.
7.9 BROKERS/FINDERS' FEES. Each party represents that it neither is nor
will be obligated for any broker's or finder's fee or commission in connection
with this transaction. Each Investor agrees to indemnify and to hold harmless
the Company from any liability for any commission or compensation in the nature
of any broker's or finder's fee (and the costs and expenses of defending against
such liability or asserted liability) for which such Investor is responsible.
The Company agrees to indemnify and hold harmless each Investor from any
liability for any commission or compensation in the nature of any broker's or
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers, employees or
representatives is responsible.
7.10 EXPENSES. Each party shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance of
this Agreement.
7.11 CERTAIN DEFINITIONS. For purposes of this Agreement, an
"Affiliate" of a person is (i) any other person or entity (each a "Controlling
Person") who, directly or indirectly, is in control of such person and (ii) all
entities that are direct or indirect subsidiaries of such Controlling Person.
For purposes of this Agreement, an entity will be deemed to be a subsidiary of a
Controlling Person if more than 50% of any class of the capital stock or other
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equity interests of such entity are "beneficially owned" directly or indirectly
by such Controlling Person or if such Controlling Person and its other direct or
indirect subsidiaries have the right to elect a majority of the members of the
board of directors or other governing body of such entity whether by ownership
of voting securities, by contract or otherwise. For purposes of this Agreement,
the term "control" shall have the meaning ascribed to it by Rule 12b-2 of the
Exchange Act. For purposes of this Agreement, the term "beneficial ownership"
(or any variant thereof) shall have the meaning ascribed to it by Rule 13d-3
under the Exchange Act.
7.12 AMENDMENTS AND WAIVERS. No modifications or amendments to, or
waivers of, any provision of this Agreement may be made except pursuant to a
document signed by Company and a majority of the Investors.
7.13 SEVERABILITY. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
7.14 EFFECT OF AMENDMENT OR WAIVER. Each Investor acknowledges that by
the operation of Section 7.12 hereof the holders of more than half of the Shares
will have the right and power to diminish or eliminate all rights of such
Investor under this Agreement.
7.15 PUBLICITY. Neither party hereto shall issue any press release or
otherwise make any statements to any third party or any public disclosure with
respect to this Agreement or the transactions contemplated hereby, other than
the issuance by the Company of a press release announcing this Agreement or as
required by applicable law.
7.16 EXCULPATION AMONG INVESTORS. Each Investor acknowledges that it is
not relying upon any person, entity or corporation, other than the Company and
its officers and directors, in making its investment or decision to invest in
the Company. The obligations of each Investor hereunder are several and not
joint with the obligations of any other Investor, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor hereunder. Nothing contained herein, and no action taken by any
Investor pursuant hereto, shall be deemed to constitute the Investors as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Investors are in any way acting in concert or as a
group with respect to such obligations or the transactions contemplated
hereunder. Each Investor shall be entitled to independently protect and enforce
its rights hereunder, and it shall not be necessary for any other Investor to be
joined as an additional party in any proceeding for such purpose. Each Investor
has been represented by its own separate legal counsel in their review and
negotiation of this Agreement. The Company has elected to provide all Investors
with the same terms and forms of Transaction Documents for the convenience of
the Company and not because it was required or requested to do so by the
Investors.
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7.17 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of or in
any similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
any Investor's part of any breach, default or noncompliance under this Agreement
or any waiver on such party's part of any provisions or conditions of the
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, the Company's certificate of formation, bylaw, or otherwise afforded
to any party, shall be cumulative and not alternative.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ACACIA RESEARCH CORPORATION,
a Delaware corporation
By /S/ ▇▇▇▇ ▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇
Chairman and Chief Executive Officer
ADDRESS:
--------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
11
SIGNATURE PAGE TO
COMMON STOCK PURCHASE AGREEMENT
BY AND AMONG
ACACIA RESEARCH CORPORATION
AND EACH INVESTOR NAMED THEREIN
The undersigned hereby executes and delivers the Common Stock Purchase
Agreement (the "Agreement") to which this Signature Page is attached effective
as of the date of the Agreement, which Agreement and Signature Page, together
with all counterparts of such Agreement and signature pages of the other
Investors named in such Agreement, shall constitute one and the same document in
accordance with the terms of such Agreement.
__________________________________________
[Print Name of Investor]
By _______________________________________
Address __________________________________
__________________________________________
Email ____________________________________
Facsimile ________________________________
Dated: February ____, 2005
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SCHEDULE A
SCHEDULE OF INVESTORS
Name Number of Shares Purchase Price
---------------------------- -------------------- -----------------
-------------------- -----------------
Total
==================== =================
