SUBSCRIPTION AGREEMENT
EXHIBIT
10.2
Acacia
Research Corporation
000
Xxxxxxx Xxxxxx Xxxxx, 0xx
Xxxxx,
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
The
undersigned (the “Investor”)
hereby
confirms its agreement with you as follows:
1. This
Subscription Agreement (this “Agreement”)
is
made as of the date set forth below between Acacia Research Corporation, a
Delaware corporation (the “Company”),
and
the Investor.
2. The
Company has authorized the sale and issuance to certain investors of up to
_________ units (the “Units”),
each
consisting of (i) one share (the “Share”
and
collectively the “Shares”)
of its
Acacia Research-CombiMatrix Common Stock, par value $0.001 per share (the
“Common
Stock”)
and
(ii) one warrant (the “Warrant”
and
collectively the “Warrants”)
to
purchase 1.2 Shares of Common Stock (and the fractional amount being the
“Warrant
Ratio”),
in
substantially the form attached hereto as Exhibit
A,
subject
to adjustment by the Company’s Board of Directors, or a committee thereof, for a
purchase price of $1.02 per Unit (the “Purchase
Price”).
The
shares issuable upon the exercise of the Warrants are referred to herein as
the
“Warrant
Shares”
and,
together with the Units, the Shares and the Warrants, are referred to herein
as
the “Securities.”
3. The
offering and sale of the Securities (the “Offering”)
is
being made pursuant to an effective Registration Statement on Form S-3
(including the Prospectus contained therein (the “Base
Prospectus”)
and
the exhibits thereto and the documents incorporated therein by reference, the
“Registration
Statement”)
filed
by the Company with the Securities and Exchange Commission (the “Commission”),
if
applicable, certain preliminary prospectuses that have or will be filed with
the
Commission and delivered to the Investor on or prior to the date hereof (the
“Time
of Sale Prospectus”),
and a
Prospectus Supplement (the “Prospectus
Supplement”)
containing certain supplemental information regarding the Securities and terms
of the Offering that will be filed with the Commission and delivered, or
otherwise made available, to the Investor along with the Company’s counterpart
to this Agreement.
4. The
Company and the Investor agree that the Investor will purchase from the Company
and the Company will issue and sell to the Investor the Units as set forth
below
for the aggregate purchase price set forth below. The Units shall be purchased
pursuant to the Terms and Conditions for Purchase of Units attached hereto
as
Annex
I
and
incorporated herein by this reference as if fully set forth herein.
5. The
manner of settlement of the Shares included in the Units purchased by the
Investor shall be determined by such Investor as follows (check
one):
|
[____]
|
A.
|
Delivery
by electronic book-entry at The Depository Trust Company (“DTC”),
registered in the Investor’s name and address as set forth below, and
released by U.S. Stock Transfer , the Company’s transfer agent (the
“Transfer
Agent”),
to the Investor at the Closing. NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT
BY
THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
|
|
(I)
|
DIRECT
THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED
WITH THE
SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL AT CUSTODIAN
(“DWAC”)
INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS
WITH THE
SHARES, AND
|
|
(II)
|
REMIT
BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE
PRICE
FOR THE SHARES BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING
ACCOUNT:
|
Bank
of
New York
ABA
No.
000000000
GLA
111-565
Cust
A/C
# 102209
A/C
Name
Oppenheimer/Acacia Research Corporation
-
OR
-
|
[____]
|
B.
|
Delivery
versus payment (“DVP”)
through DTC (i.e., the Company shall deliver Shares registered in
the
Investor’s name and address as set forth below and released by the
Transfer Agent to the Investor at the Closing directly to the account(s)
at Xxxxxxxxxxx & Co. Inc. identified by the Investor and
simultaneously therewith payment shall be made from such account(s)
to the
Company through DTC). NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT
BY
THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
|
|
(I)
|
NOTIFY
XXXXXXXXXXX & CO. INC. OF THE ACCOUNT OR ACCOUNTS AT XXXXXXXXXXX &
CO. INC. TO BE CREDITED WITH THE SHARES BEING PURCHASED BY SUCH INVESTOR,
AND
|
|
(II)
|
CONFIRM
THAT THE ACCOUNT OR ACCOUNTS AT XXXXXXXXXXX & CO. INC. TO BE CREDITED
WITH THE SHARES BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE
EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING PURCHASED
BY
THE INVESTOR.
|
IT
IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR
CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR
SETTLEMENT BY WAY OF DWAC OR DVP IN A TIMELY MANNER. IF THE INVESTOR DOES NOT
DELIVER THE AGGREGATE PURCHASE PRICE FOR THE UNITS OR DOES NOT MAKE PROPER
ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE UNITS MAY NOT BE DELIVERED
AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING
ALTOGETHER.
6. The
executed Warrant shall be delivered in accordance with the terms
thereof.
7. The
Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years
with
the Company or persons known to it to be affiliates of the Company, (b) it
is not a NASD member or an Associated Person (as such term is defined under
the
NASD Membership and Registration Rules Section 1011) as of the Closing, and
(c) neither the Investor nor any group of Investors (as identified in a
public filing made with the Commission) of which the Investor is a part in
connection with the Offering of the Units, acquired, or obtained the right
to
acquire, 20% or more of the Common Stock (or securities convertible into or
exercisable for Common Stock) or the voting power of the Company on a
post-transaction basis. Exceptions:
(If
no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
8. The
Investor represents that it has received, prior to or in connection with the
receipt of this Agreement, the final Base Prospectus, dated April 25, 2006,
which is a part of the Company’s Registration Statement, and the Prospectus
Supplement (collectively, the “Disclosure
Package”)
along
with the Company’s counterpart to this Agreement.
9. The
Company shall have the sole right to accept offers to purchase the Units and
may
reject any such offer, in its sole and absolute discretion, in whole or in
part.
No offer by the Investor to buy Units will be accepted and no part of the
purchase price will be delivered to the Company until the Company has accepted
such offer by countersigning a copy of this Agreement, and any such offer may
be
withdrawn or revoked, without obligation or commitment of any kind, at any
time
prior to the Company (or a Placement Agent on behalf of the Company) sending
(orally, in writing or by electronic mail) notice of its acceptance of such
offer. An indication of interest in response to the Investor signing this
Agreement will involve no obligation or commitment of any kind until this
Agreement is accepted and countersigned by the Company and notice of such
acceptance has been sent as aforesaid.
Number
of
Units:___________________________
Purchase
Price Per Unit: $_____________________
Aggregate
Purchase Price: $___________________
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing in the space provided below for that purpose.
Dated
as
of: December ___, 2006
_________________________________
INVESTOR
By:_______________________________
Print
Name:_________________________
Title:______________________________
Address:
__________________________________
__________________________________
__________________________________
Agreed
and Accepted
this
___
day of December, 2006:
ACACIA
RESEARCH CORPORATION
By: _______________________________
Name:
Title:
ANNEX
I
TERMS
AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization
and Sale of the Shares. Subject
to the terms and conditions of this Agreement, the Company has authorized the
sale of the Units, which consist of the Shares and the Warrants.
2. Agreement
to Sell and Purchase the Units; Placement Agent.
2.1 At
the
Closing (as defined in Section
3.1),
the
Company will sell to the Investor, and the Investor will purchase from the
Company, upon the terms and conditions set forth herein, the number of Units
set
forth on the last page of the Agreement to which these Terms and Conditions
for
Purchase of Units are attached as Annex
I
(the
“Signature
Page”)
for
the aggregate purchase price therefor set forth on the Signature
Page.
2.2 The
Company proposes to enter into substantially this same form of Subscription
Agreement with certain other investors (the “Other
Investors”)
and
expects to complete sales of Units to them for an aggregate purchase price
not
to exceed $10,000,000. The Investor and the Other Investors are hereinafter
sometimes collectively referred to as the “Investors,”
and
this Agreement and the Subscription Agreements executed by the Other Investors
are hereinafter sometimes collectively referred to as the “Agreements.”
2.3 (a)
In
the event that the Warrant Shares are exchangeable for shares of CombiMatrix
Corporation (the “New
Company Shares”)
pursuant to a spin-out transaction of CombiMatrix Corporation from the Company
(the “Spin
Out”),
then
promptly following the effective date of the Spin Out (the “Spin
Out Date”),
but
in any event no later than 30 days after the Spin Out Date (the “Filing
Deadline”),
the
Company shall cause CombiMatrix Corporation to file a registration statement
on
Form S-3, if such form is available to CombiMatrix Corporation, covering the
resale of the New Company Shares, in an amount sufficient to cover the resale
of
the New Company Shares issuable upon exchange of the Warrant Shares, in
accordance with the terms of this Section 2.3. In the event that Form S-3 is
unavailable and/or inappropriate for such a registration of the New Company
Shares, CombiMatrix Corporation shall use such other form or forms as are
available and appropriate for such a registration. If a registration statement
covering the New Company Shares is not filed with the SEC on or prior to the
Filing Deadline, the Company shall cause CombiMatrix Corporation to make pro
rata payments to each Investor, as liquidated damages and not as a penalty,
in
an amount equal to 1.0% of the fair market value of the New Company Shares
issuable upon the exercise of such Investor’s Warrants or pro rata for any
portion thereof following the Filing Deadline for which no registration
statement is filed with respect to the New Company Shares. Such payments shall
constitute the Investors’ exclusive monetary remedy for such events, but shall
not affect the right of the Investors to seek injunctive relief. Such payments
shall be made to each Investor in cash. For purposes of the above calculation,
the “fair market value” of one share of New Company Shares shall mean (i) the
average of the closing sales prices for New Company Shares on the Nasdaq Global
Market or other trading market where such security is listed or traded as
reported by Bloomberg Financial Markets (or a comparable reporting service
of
national reputation selected by CombiMatrix Corporation and reasonably
acceptable to the Investors if Bloomberg Financial Markets is not then reporting
sales prices of such security) (collectively, “Bloomberg”)
for
the 10 consecutive trading days immediately preceding such date, or (ii) if
the
Nasdaq Global Market is not the principal trading market for the New Company
Shares, the average of the reported sales prices reported by Bloomberg on the
principal trading market for the New Company Shares during the same period,
or,
if there is no sales price for such period, the last sales price reported by
Bloomberg for such period, or (iii) if neither of the foregoing applies, the
last sales price of such security in the over-the-counter market on the pink
sheets or bulletin board for such security as reported by Bloomberg, or if
no
sales price is so reported for such security, the last bid price of such
security as reported by Bloomberg or (iv) if fair market value cannot be
calculated as of such date on any of the foregoing bases, the fair market value
shall be as determined by the Board of Directors of CombiMatrix Corporation
in
the exercise of its good faith judgment.
(b) The
Company shall cause CombiMatrix Corporation to use its commercially reasonable
efforts to cause the registration statement to be declared effective under
the
Securities Act as promptly as possible after the filing thereof. If (A) a
registration statement covering the New Company Shares is not declared effective
by the SEC prior to the earlier of (i) five (5) business days after the SEC
shall have informed CombiMatrix Corporation that no review of the registration
statement will be made or that the SEC has no further comments on the
registration statement or (ii) the 120th day after the Spin Out Date, or (B)
after the registration statement has been declared effective by the SEC, sales
cannot be made pursuant to such registration statement for any reason (including
without limitation by reason of a stop order, or CombiMatrix Corporation’s
failure to update the registration statement), but excluding the inability
of
any Investor to sell its New Company Shares due to market conditions and except
as excused pursuant to clause (c) below, then the Company shall cause
CombiMatrix Corporation to make pro rata payments to each Investor, as
liquidated damages and not as a penalty, in an amount equal to 1.0% of the
fair
market value of the New Company Shares issuable upon the exercise of such
Investor’s Warrants or pro rata for any portion thereof following the date by
which such registration statement should have been effective (the “Blackout
Period”).
Such
payments shall constitute the Investors’ exclusive monetary remedy for such
events, but shall not affect the right of the Investors to seek injunctive
relief. The amounts payable as liquidated damages pursuant to this paragraph
shall be paid monthly within three (3) business days of the last day of each
month following the commencement of the Blackout Period until the termination
of
the Blackout Period. Such payments shall be made to each Investor in
cash.
(c) For
not
more than twenty (20) consecutive days or for a total of not more than
forty-five (45) days in any twelve (12) month period, CombiMatrix Corporation
may delay the disclosure of material non-public information concerning the
CombiMatrix Corporation, by suspending the use of any prospectus included in
any
registration contemplated by this Section 2.3 containing such information,
the
disclosure of which at the time is not, in the good faith opinion of CombiMatrix
Corporation, in the best interests of CombiMatrix Corporation (an “Allowed
Delay”);
provided, that CombiMatrix Corporation shall promptly (i) notify the Investors
in writing of the existence of (but in no event, without the prior written
consent of an Investor, shall CombiMatrix Corporation disclose to such Investor
any of the facts or circumstances regarding) material non-public information
giving rise to an Allowed Delay, (ii) advise the Investors in writing to cease
all sales under the registration statement until the end of the Allowed Delay
and (c) use commercially reasonable efforts to terminate an Allowed Delay as
promptly as practicable.
(d) CombiMatrix
Corporation shall use its best efforts to keep such registration statement
effective (pursuant to Rule 415 if available) at all times until such date
as is
the earlier of (i) the date on which all such New Company Shares have been
sold
and (ii) the date on which such New Company Shares may be immediately sold
without restriction (including without limitation as to volume restrictions
by
each holder thereof) without registration under the Securities Act pursuant
to
Rule 144(k).
2.4 Investor
acknowledges that the Company intends to pay Xxxxxxxxxxx & Co. Inc. (the
“Placement
Agent”)
a fee
(the “Placement
Fee”)
in
respect of the sale of Units to the Investor.
2.5 The
Company has entered into a Placement Agent Agreement (the “Placement
Agreement”)
with
the Placement Agent that contains certain representations, warranties, covenants
and agreements of the Company that may be relied upon by the Investor, which
shall be a third party beneficiary thereof. As a condition to closing, the
Company shall cause its counsel(s) to issue to the Investor or to permit the
Investor to rely on any legal opinions being issued by such counsel(s) to the
Placement Agent in connection with the transactions contemplated hereby. A
copy
of the Placement Agreement is available upon request.
3. Closings
and Delivery of the Units and Funds.
3.1 Closing.
The
completion of the purchase and sale of the Units (the “Closing”)
will
occur at a place and time (the “Closing
Date”)
to be
specified by the Company and the Placement Agent, and of which the Investors
will be notified in advance by the Placement Agent. At the Closing, (a) the
Company will cause the Transfer Agent to deliver to the Investor the number
of
Shares (and Units) set forth on the Signature Page registered in the name of
the
Investor or, if so indicated on the Investor Questionnaire attached hereto
as
Exhibit B,
in the
name of a nominee designated by the Investor, (b) the Company shall cause
to be delivered to the Investor a Warrant to purchase the number of whole
Warrant Shares determined by multiplying the number of Shares (and Units) set
forth on the signature page by the Warrant Ratio and rounding up to the nearest
whole number and (c) the aggregate purchase price for the Units being
purchased by the Investor will be delivered by or on behalf of the Investor
to
the Company.
3.2 (a) Conditions
to the Company’s Obligations.
The
Company’s obligation to issue the Shares and the Warrants to the Investor will
be subject to the receipt by the Company of the purchase price for the Units
being purchased hereunder as set forth on the Signature Page and the accuracy
of
the representations and warranties made by the Investor and the fulfillment
of
those undertakings of the Investor to be fulfilled prior to the Closing
Date.
(b) Conditions
to the Investor’s Obligations.
The
Investor’s obligation to purchase the Units will be subject to the accuracy of
the representations and warranties made by the Company and the fulfillment
of
those undertakings of the Company to be fulfilled prior to the Closing Date,
including, without limitation, those contained in the Placement Agreement
(collectively, the “Company
Closing Conditions”),
and
to the condition that the Placement Agent shall not have: (1) terminated
the Placement Agreement pursuant to the terms thereof or (2) determined
that the conditions to the closing in the Placement Agreement have not been
satisfied. The Investor’s obligations are expressly not conditioned on the
purchase by any or all of the Other Investors of the Units that they have agreed
to purchase from the Company.
3.3 Delivery
of Funds.
(a) Delivery
by Electronic Book-Entry at The Depository Trust Company.
If the
Investor elects to settle the Shares purchased by such Investor through delivery
by electronic book-entry at DTC, no
later than one (1) business day after the execution of this Agreement by the
Investor and the Company,
the
Investor shall remit by wire transfer the amount of funds equal to the aggregate
purchase price for the shares being purchased by the Investor to the following
account designated by the Company and the Placement Agent pursuant to the terms
of that certain Escrow Agreement (the “Escrow
Agreement”)
dated
as of December 6, 2006, by and among the Company, the Placement Agent and The
Bank of New York (the “Escrow
Agent”):
Bank
of
New York
ABA
No.
000000000
GLA
111-565
Cust
A/C
# 102209
A/C
Name
Oppenheimer/Acacia Research Corporation
Such
funds shall be held in escrow until the Closing and delivered by the Escrow
Agent on behalf of the Investors to the Company upon the satisfaction, in the
sole judgment of the Placement Agent, of the Company Closing Conditions. The
Placement Agent shall have no rights in or to any of the escrowed funds, unless
the Placement Agent and the Escrow Agent are notified in writing by the Company
in connection with the Closing that a portion of the escrowed funds shall be
applied to the Placement Fee. The
Company and the Investor agree to indemnify and hold the Escrow Agent harmless
from and against any and all losses, costs, damages, expenses and claims
(including, without limitation, court costs and reasonable attorneys fees)
(“Losses”)
arising under this Section
3.3
or
otherwise with respect to the funds held in escrow pursuant hereto or arising
under the Escrow Agreement, unless it is finally determined that such Losses
resulted directly from the willful misconduct or gross negligence of the Escrow
Agent. Anything in this Agreement to the contrary notwithstanding, in no event
shall the Escrow Agent be liable for any special, indirect or consequential
loss
or damage of any kind whatsoever (including but not limited to lost profits),
even if the Escrow Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action.
Investor
shall also furnish to the Placement Agent a completed W-9 form (or, in the
case
of an Investor who is not a United States citizen or resident, a W-8
form).
Investor
acknowledges that the Escrow Agent acts as counsel to the Placement Agent,
and
shall have the right to continue to represent the Placement Agent, in any
action, proceeding, claim, litigation, dispute, arbitration or negotiation
in
connection with the Offering, and Investor hereby consents thereto and waives
any objection to the continued representation of the Placement Agent by the
Escrow Agent in connection therewith based upon the services of the Escrow
Agent
under the Escrow Agreement, without waiving any duty or obligation the Escrow
Agent may have to any other person.
(b) Delivery
Versus Payment through The Depository Trust Company.
If the
Investor elects to settle the Shares purchased by such Investor by delivery
versus payment through DTC, no
later than one (1) business day after the execution of this Agreement by the
Investor and the Company,
the
Investor shall confirm that the account or accounts at Xxxxxxxxxxx & Co.
Inc. to be credited with the Shares being purchased by the Investor have a
minimum balance equal to the aggregate purchase price for the Units being
purchased by the Investor.
3.4 Delivery
of Shares.
(a) Delivery
by Electronic Book-Entry at The Depository Trust Company.
If the
Investor elects to settle the Shares purchased by such Investor through delivery
by electronic book-entry at DTC, no
later than one (1) business day after the execution of this Agreement by the
Investor and the Company,
the
Investor shall direct the broker-dealer at which the account or accounts to
be
credited with the Shares being purchased by such Investor are maintained, which
broker/dealer shall be a DTC participant, to set up a Deposit/Withdrawal at
Custodian (“DWAC”) instructing U.S. Stock Transfer, the Company’s transfer
agent, to credit such account or accounts with the Shares by means of an
electronic book-entry delivery. Such DWAC shall indicate the settlement date
for
the deposit of the Shares, which date shall be provided to the Investor by
the
Placement Agent. Simultaneously with the delivery to the Company by the Escrow
Agent of the funds held in escrow pursuant to Section
3.3
above,
the Company shall direct its transfer agent to credit the Investor’s account or
accounts with the Shares pursuant to the information contained in the DWAC.
(b) Delivery
Versus Payment through The Depository Trust Company.
If the
Investor elects to settle the Shares purchased by such Investor by delivery
versus payment through DTC, no
later than one (1) business day after the execution of this Agreement by the
Investor and the Company,
the
Investor shall notify Xxxxxxxxxxx & Co. Inc. of the account or accounts at
Xxxxxxxxxxx & Co. Inc. to be credited with the Shares being purchased by
such Investor. On the Closing Date, the Company shall deliver the Shares to
the
Investor directly to the account(s) at Xxxxxxxxxxx & Co. Inc. identified by
Investor and simultaneously therewith payment shall be made from such account(s)
to the Company through DTC.
4. Representations,
Warranties and Covenants of the Investor.
4.1 The
Investor represents and warrants to, and covenants with, the Company that
(a) the Investor is knowledgeable, sophisticated and experienced in making,
and is qualified to make decisions with respect to, investments in shares
presenting an investment decision like that involved in the purchase of the
Units, including investments in securities issued by the Company and investments
in comparable companies, and has requested, received, reviewed and considered
all information it deemed relevant in making an informed decision to purchase
the Units, (b) the Investor has answered all questions on the Signature
Page and the Investor Questionnaire for use in preparation of the Prospectus
Supplement and the answers thereto are true and correct as of the date hereof
and will be true and correct as of the Closing Date, and (c) the Investor,
in connection with its decision to purchase the number of Units set forth on
the
Signature Page, is relying only upon the Disclosure Package, the documents
incorporated by reference therein and the representations and warranties of
the
Company contained herein, and the representations and warranties of the Company
in the Placement Agreement.
4.2 The
Investor acknowledges, represents and agrees that no action has been or will
be
taken in any jurisdiction outside the United States by the Company or any
Placement Agent that would permit an offering of the Units, or possession or
distribution of offering materials in connection with the issue of the Units
in
any jurisdiction outside the United States where action for that purpose is
required. Each Investor outside the United States will comply with all
applicable laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or delivers Units or has in its possession or
distributes any offering material, in all cases at its own expense. The
Placement Agent are not authorized to make and have not made any representation
or use of any information in connection with the issue, placement, purchase
and
sale of the Units, except as set forth or incorporated by reference in the
Disclosure Package or the Prospectus.
4.3 The
Investor further represents and warrants to, and covenants with, the Company
that (a) the Investor has full right, power, authority and capacity to
enter into this Agreement and to consummate the transactions contemplated hereby
and has taken all necessary action to authorize the execution, delivery and
performance of this Agreement, and (b) this Agreement constitutes a valid
and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as the indemnification agreements of the Investors herein may be
legally unenforceable.
4.4 The
Investor understands that nothing in this Agreement or any other materials
presented to the Investor in connection with the purchase and sale of the Units
constitutes legal, tax or investment advice. The Investor has consulted such
legal, tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of Units.
4.5 The
Investor represents, warrants and agrees that, since the earlier to occur of
(i) the date on which the Placement Agent first contacted the Investor
about the Offering and (ii) the date that is the tenth (10) trading
day prior to the date of this Agreement, it has not engaged in any short selling
of the Company’s securities, or established or increased any “put equivalent
position” as defined in Rule 16(a)-1(h) under the Securities Exchange Act of
1934, as amended, with respect to the Company’s securities.
5. Survival
of Representations, Warranties and Agreements. Notwithstanding
any investigation made by any party to this Agreement or by the Placement Agent,
all covenants, agreements, representations and warranties made by the Company
and the Investor herein will survive the execution of this Agreement, the
delivery to the Investor of the Units being purchased and the payment
therefor.
6.
For
purposes of this Section 6, the following definitions shall
apply:
(a)
“Approved
Stock Plan”
means
any employee benefit plan which has been approved by the Board of Directors
of
the Company, pursuant to which the Company’s securities may be issued to any
employee, officer or director for services provided to the Company.
(b)
“Common
Stock Equivalents”
means,
collectively, Options and Convertible Securities.
(c)
“Convertible
Securities”
means
any stock or securities (other than Options) convertible into or exercisable
or
exchangeable for Common Stock.
(d)
“Excluded
Securities”
means
Common Stock issued or issuable: (i) as a stock dividend to holders of
Common Stock or upon any subdivision or combination of shares of Common Stock;
(ii) in connection with any Approved Stock Plan; (iii) any securities
issued to the seller as consideration for the acquisition of another entity
by
the Company by merger or share exchange (whereby the Company owns no less than
51% of the voting power of the surviving entity) or purchase of substantially
all of such entity’s stock or assets; (iv) any securities issued in
connection with a license, strategic partnership, joint venture or other similar
agreement, provided that the purpose of such arrangement is not primarily the
raising of capital; (v) upon exercise of warrants issued as a part of the
issuance of straight debt securities (with no equity or equity-linked feature)
issued to a financial institution or lender in connection with a bank loan,
credit, lease, or other debt transaction with such financial institution or
lender (where warrant coverage is not greater than 5%); or (vi) upon
conversion of any Options or Convertible Securities which are outstanding on
the
day immediately preceding the Closing Date, provided that the terms of such
Options or Convertible Securities are not amended, modified or changed on or
after the Closing Date.
(e)
“Options”
means
any rights, warrants or options to subscribe for or purchase Common Stock or
Convertible Securities.
From
the
date hereof until the date that is 90 days after the Closing Date, the Company
will not, directly or indirectly, offer, sell, grant any option to purchase,
or
otherwise dispose of (or announce any offer, sale, grant or any option to
purchase or other disposition of) any of its or its subsidiaries’ equity or
equity equivalent securities, including without limitation any debt, preferred
stock or other instrument or security that is, at any time during its life
and
under any circumstances, convertible into or exchangeable or exercisable for
shares of Common Stock or Common Stock Equivalents. The restrictions contained
in this Section shall not apply in connection with the issuance of any Excluded
Securities.
7. Notices.
All
notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile or (b) if delivered from outside
the
United States, by International Federal Express or facsimile, and will be deemed
given (i) if delivered by first-class registered or certified mail domestic,
three business days after so mailed, (ii) if delivered by nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by
International Federal Express, two business days after so mailed and (iv) if
delivered by facsimile, upon electric confirmation of receipt and will be
delivered and addressed as follows:
(a) if
to the
Company, to:
Acacia
Research Corporation
000
Xxxxxxx Xxxxxx Xxxxx, 0xx
Xxxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Attention:
Chief Financial Officer
Phone:
(000) 000-0000
Telecopy:
(000) 000-0000
with
copies to:
Xxxxxxxxx
Xxxxxxx, LLP
000
Xxxx
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx
Xxxx, Xxxxxxxxxx 00000
Attention:
Xxxxxxx X. Xxx
Phone:
(000) 000-0000
Telecopy:
(000) 000-0000
(b) if
to the
Investor, at its address on the Signature Page hereto, or at such other address
or addresses as may have been furnished to the Company in writing.
8.
Changes.
This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
9.
Headings.
The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this
Agreement.
10. Severability.
In
case
any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the
remaining provisions contained herein will not in any way be affected or
impaired thereby.
11. Governing
Law. This
Agreement will be governed by, and construed in accordance with, the internal
laws of the State of New York, without giving effect to the principles of
conflicts of law that would require the application of the laws of any other
jurisdiction.
12. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which will
constitute an original, but all of which, when taken together, will constitute
but one instrument, and will become effective when one or more counterparts
have
been signed by each party hereto and delivered to the other parties. The Company
and the Investor acknowledge and agree that the Company shall deliver its
counterpart to the Investor along with the Prospectus Supplement.
13. Confirmation
of Sale.
The
Investor acknowledges and agrees that such Investor’s receipt of the Company’s
counterpart to this Agreement, together with the Prospectus Supplement, shall
constitute written confirmation of the Company’s sale of Shares to such
Investor.
14. Press
Release. The
Company and the Investor agree that the Company shall issue a press release
announcing the Offering prior to the opening of the financial markets in New
York City on the business day immediately after the date hereof, which press
release the Company agrees to provide to the Investor for review prior to its
issuance.
15. Termination.
In the
event that the Placement Agreement is terminated by the Placement Agent pursuant
to the terms thereof, this Agreement shall terminate without any further action
on the part of the parties hereto.
Exhibit
A
[FORM
OF WARRANT]
Exhibit
B
ACACIA
RESEARCH CORPORATION
INVESTOR
QUESTIONNAIRE
Pursuant
to Section
3
of
Annex
I
to the
Agreement, please provide us with the following information:
| 1. |
The
exact name that your Shares and Warrants are to be registered in.
You may
use a nominee name if appropriate:
|
|
|
| 2. |
The
relationship between the Investor and the registered holder listed
in
response to item 1 above:
|
|
|
| 3. |
The
mailing address of the registered holder listed in response to item
1
above:
|
|
|
| 4. |
The
Social Security Number or Tax Identification Number of the registered
holder listed in the response to item 1 above:
|
|
|
| 5. |
Name
of DTC Participant (broker-dealer at which the account or accounts
to be
credited with the Shares are maintained):
|
|
|
| 6. |
DTC
Participant Number:
|
|
|
| 7. |
Name
of Account at DTC Participant being credited with the
Shares:
|
|
|
| 8. |
Account
Number at DTC Participant being credited with the Shares:
|
|
