Exhibit 10.1
Purchase Agreement Between Competitive Technologies, Inc. and
[*]
Agreement
AGREEMENT EFFECTIVE as of November 17th, 2003 ("Effective Date")
by mutual consent of Competitive Technologies, Inc., a Delaware
corporation (hereinafter referred to as "SELLER") having a place
of business at:
Competitive Technologies, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
and [*], an individual (hereinafter referred to as "PURCHASER")
having a place of residence at:
[*]
[*]
[*]
SELLER and PURCHASER being sometimes hereinafter referred to
singularly as a "Party" and collectively as "Parties".
WITNESSETH:
WHEREAS, SELLER and PURCHASER are contemplating entering into a
relationship that calls for SELLER to sell a portion of its
potential proceeds from a judgment award from the federal Lawsuit
in which a judgment has been entered by the Court;
WHEREAS, SELLER is willing to sell a portion of its award to
PURCHASER; and
WHEREAS, PURCHASER is willing to purchase a portion of the award
to which SELLER is entitled to receive from the Lawsuit.
NOW THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties agree as follows:
_____________
* Portions of this Exhibit (indicated by asterisks) have been
omitted pursuant to a request for confidential treatment pursuant
to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended, and such portions have been filed separately with the
Commission.
1.0 Definitions. The following definitions shall apply to
terms used in this Agreement:
1.1 "Adverse Party" - refers to American Cyanamid Company and
any other or later added party(ies) in the Litigation, whose
interests are or may become adverse to Plaintiffs or SELLER.
1.2 "Agreement" - refers to this Agreement, all documents
described herein as exhibits and documents referred herein as
part of this Agreement.
1.3 "Appeal" - refers to the appeal of the Lawsuit currently
pending in the United States Court of Appeals for the Federal
Circuit (CAFC) and any further appeals related thereto.
1.4 "Assigned Portion" - refers to the sum of three hundred
twelve thousand five hundred dollars ($312,500.00 USD).
1.5 "Assignment" - refers to the document entitled Assignment
of Litigation Proceeds, attached hereto as Exhibit 1 and
incorporated herein by this reference, and all those other or
related documents evidencing and acknowledging assignment of an
interest in the Judgment to PURCHASER executed by SELLER and
SELLER's successors and assigns.
1.6 "Attorney" - refers to Xxxxxx X. Xxxxxx, Esq., Xxxxxxx
Coie, LLP, 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, Tel.
No. (000) 000-0000; Xxxxxxx X. Xxxxxxx, Esq., Technology
Transfer/Research Compliance Attorney, University of Colorado,
System Technology Transfer Office, 0000 Xxxxxxxxx Xxxxx, Xxxxx
000, 000 XXX; Xxxxxxx, XX 00000-0000; Tel No. (000) 000-0000 /
Fax No. (000) 000-0000; and such other attorneys as may be
employed, consulted, or engaged by Plaintiffs in connection with
the Appeal and the Litigation.
1.7 "Proceeds Date" - refers to that date on which the PURCHASER
remits the Purchase Price to SELLER.
1.8 "Court" - refers to the United States District Court for the
District of Colorado.
1.9 "Discount" - refers to eighty percent (80.0%), which is the
percentage by which the Assigned Portion has been reduced to
establish the Purchase Price.
1.10 "Judgment" - refers to: (i) the judgment for the Plaintiffs
entered by the Court in the Lawsuit, a copy of which is attached
to this Agreement, as Reference Documents Exhibit, and
incorporated herein by this reference; (ii) any later amended,
modified, augmented, supplemental or other judgment and judgment
on appeal; and (iii) any and all rights of Plaintiffs and SELLER
and their successors and assigns to Proceeds, as defined below,
from the Litigation, as defined below.
1.11 "Judgment Amount Assigned" - refers to the Assigned Portion
plus the interest accruing on the Judgment, allocable to the
Assigned Portion, commencing on the Proceeds Date of Nov. 14th,
2003 . Provided however, if the Judgment is set aside and
remanded for Further Proceedings, and if interest is ultimately
awarded as to any claim for the period on or after the Proceeds
Date ("Accrual Period"), the Judgment Amount Assigned shall be
the Assigned Portion plus the portion of the interest awarded or
later accruing that is allocable to the Assigned Portion for the
Accrual Period. In addition, should SELLER be in default or
breach of this Agreement, there shall be added to the Judgment
Amount Assigned, all expenses, costs (including reasonable
attorneys fees), and the amount of all damages sustained by
PURCHASER on account of any such default or breach.
1.12 "Judgment Collateral" - refers to: (i) the bond or other
undertaking lodged with the Court to secure payment of the
Judgment, a copy of which is attached to this Agreement as
Exhibit 2, and incorporated herein; (ii) any other bond or other
undertaking, serving as collateral for the Judgment (including
all interest, income or proceeds accruing or paid thereon); and,
(iii) any additional or substitute security, guaranty, bond,
surety, segregated account or other undertaking given on account
of the Judgment.
1.13 "Judgment Debtor(s)" - refers to the Adverse Party and any
affiliate, successor, surety or guarantor, as may assume or be
bound by the Judgment or other obligations to Plaintiffs or
SELLER arising out of the Litigation.
1.14 "Lawsuit" - refer to the case of The University of Colorado
Foundation, Inc., et al. v. American Cyanamid Company, Civil
Action No. 93-K-1657, in which the Judgment was entered by the
Court and all related post-trial proceedings.
1.15 "Litigation" - refers to the (i) Lawsuit; (ii) all appellate
proceedings on remand, enforcement, ancillary, parallel or
alternate dispute resolution proceedings and processes arising
out of or related to the Lawsuit; (iii) any other proceedings
founded on the underlying facts giving rise to the Lawsuit, in
which SELLER or SELLER's successor in interest is a party; and
(iv) all arrangements made with SELLER by or among any Adverse
Party having the effect of resolving any of SELLER's claims
against any Adverse Party.
1.16 "Litigation Proceeds" - refers to all Proceeds of the
Litigation.
1.17 "Plaintiffs" - refers to: The University of Colorado
Foundation Inc. (hereinafter, "UCFI"); The University of
Colorado; The Board of Regents of the University of Colorado; Xx.
Xxxxxx X. Xxxxx; Xx. Xxxx X. Xxxxxxxx; and, any other party(ies)
in the Litigation owning rights, title, and interest in and to
the Judgment and any Proceeds of the Litigation.
1.18 "Purchase Price" - refers to the sum of two hundred fifty
thousand dollars ($250,000.00 USD).
1.19 "Proceeds" - refers to cash, negotiable instruments,
contract rights, annuities, and any other rights to payment of
cash and transfer of things of value or other property.
1.20 "Receipt" - refers to the SELLER's Acknowledgment of Receipt
of Purchase Price.
1.21 "SELLER's Attorney" - refers to the Vice President and
General Counsel, Competitive Technologies, Inc., 0000 Xxxxxxx
Xxxx, Xxxxxxxxx, XX 00000, Tel No. (000) 000-0000, and such
other attorneys as may be employed, consulted, or engaged by
SELLER.
1.22 "SELLER's Litigation Proceeds" - refers to all of SELLER's
legal and/or equitable rights, title and interest in and to the
Litigation Proceeds thereof, whether in the nature of ownership,
lien, security interest or otherwise, on account of SELLER's
claims against the Adverse Party, Attorney's fees and costs, or
any other agreement with one or more SELLER.
2.0 Underlying Facts.
SELLER represents and acknowledges the following underlying facts
as true and correct and on which PURCHASER has placed material
reliance in entering and which form the factual foundation for
this Agreement:
2.1 Plaintiffs are parties to the Lawsuit.
2.2 Xxxxxx X. Xxxxxx is Plaintiffs' attorney of record in the
Lawsuit.
2.3 Xxxxxxx X. Xxxxxxx is Plaintiffs' in-house attorney.
2.4 Plaintiffs have obtained the Judgment against the Adverse
Party(ies) at the District Court level. The Judgment was affirmed
by the CAFC on September 3rd, 2003. The Adverse Party(ies)
subsequently filed a petition for a Re-Hearing and Re-Hearing En
Banc at the CAFC. The petition of the Adverse Party(ies) was
denied on November 12th, 2003.
2.5 At the time the Lawsuit was filed, SELLER was doing business
as University Patents, Inc. (hereinafter, "UPI"). SELLER formally
changed its name to Competitive Technologies, Inc., in 1994.
2.6 By Agreement, dated August 1, 1993, between UCFI and UPI, a
copy of which is attached hereto as Exhibit 3 and incorporated
herein, Plaintiffs assigned to SELLER eighteen and two-tenths
percent (18.2%) of Plaintiffs' rights, title, and interest in and
to the entire Judgment and any and all Proceeds of the Litigation
after deduction of Attorney's contingent fee and out of pocket
expenses.
2.7 SELLER is entitled to receive approximately six million
dollars ($6,000,000.00 USD) of the Judgment, plus interest, by
virtue of the Agreement referenced in subparagraph 2.6
hereinabove and attached hereto as Exhibit 3.
2.8 The following documents in the Lawsuit, provided to
PURCHASER, (i) are complete, accurate and genuine, (ii) remain in
full force and effect as of the date hereof, and to the best of
SELLER's knowledge after due inquiry to Attorney and Plaintiffs,
have not been and (except as to issues that may be raised on
appeal), are not currently proposed by any party to be modified
or superseded (unless copy of the modifying, superceding or
amended document(s) or written notice thereof have been provided
to PURCHASER):
2.8.1 Reference Documents Exhibit, the Judgment and
Bond, Undertaking or other Judgment collateral, if any;
2.8.2 The Appellate Briefs, Notice(s) of Appeal and
other documents filed in the Appellate Court;
2.8.3 If all briefs have not been filed; all trial
briefs and related points and authorities filed in the
Lawsuit; the verdict, all post-trial motion papers and
rulings, if any;
2.8.4 All other papers and documents supplied by
Attorney with respect to the Appeal and the Lawsuit.
2.9 SELLER hereby irrevocably instructs Attorney and SELLER's
Attorney to do the following: (i) provide all documents requested
by PURCHASER relating to the Appeal, the Litigation, settlement
of the Litigation, Attorney's or other persons' interest in or
claim against the Judgment and the subject matter of this
Agreement; (ii) when requested by PURCHASER, to provide factual
information within the knowledge of Plaintiffs, Attorney, or
SELLER's Attorney; and (iii) to perform all those action(s) to be
taken by Attorney or by SELLER's Attorney, as agent of SELLER,
provided for in this Agreement. Provided, however, nothing in
this Agreement shall: (1) require the dissemination of
information to PURCHASER or other persons, which is subject to
attorney-client or other evidentiary privilege, unless it is done
in a manner that does not constitute a waiver of the applicable
privilege; or, (2) give PURCHASER any right to direct or control
Plaintiffs, Attorney, SELLER, or SELLER's Attorney in pursuing or
settling of the Litigation. Any information disclosed to
PURCHASER shall be treated as confidential by PURCHASER and may
be used by PURCHASER solely for purposes related to or arising
out of this Agreement.
2.10 The transaction provided for in this Agreement involves
substantial economic risk to PURCHASER.
3.0 Purposes.
3.1 SELLER is in need of funds to provide for SELLER's
obligations and to accomplish SELLER's current economic
objectives. The parties have entered into this Agreement for the
underlying purpose of providing SELLER the opportunity to receive
cash now on account of the Litigation, without regard to the
decision on the pending Appeal and the outcome of the Litigation.
PURCHASER is interested in acquiring a partial assignment of a
civil money judgment during appeal for cash. Being a purchase,
PURCHASER is at risk as to the result of the court's decision on
the appeal and the outcome of the Litigation. In arriving at the
Purchase Price, the Litigation Proceeds to be purchased under the
Agreement have been discounted, taking into account PURCHASER's
risks in buying a portion of the Litigation Proceeds when an
appeal has been taken, among other things.
3.2 PURCHASER has offered to pay SELLER the Purchase Price in
exchange for an assignment of the Litigation Proceeds in the
amount of the Judgment Amount Assigned. SELLER has accepted
PURCHASER's offer and the parties intend to set forth their
contract in this Agreement. The Purchase Price and Judgment
Amount Assigned have been agreed to on an arm's length basis.
4.0 Nature of Transaction.
The parties recognize and acknowledge that the rights granted
PURCHASER will be purchased and an ownership interest will be
sold, transferred and assigned by SELLER to PURCHASER. This
transaction is not a loan. It is not intended as collateral for
any loan. Unless otherwise stated in this Agreement, SELLER has
no personal obligation to pay any amount to PURCHASER.
5.0 Agreement To Sell And Buy/Non-Assumption By Purchaser.
5.1 Under and subject to the terms and conditions of this
Agreement and in exchange for the Purchase Price, SELLER agrees
to and, upon remittance of the Purchase Price by PURCHASER, shall
sell, transfer, assign and deliver to PURCHASER, SELLER's legal
and equitable rights, title and interest in and to the SELLER's
Litigation Proceeds, the Judgment Collateral and all Proceeds and
or other rights and property SELLER has the right to recover on
account of the Litigation or that arise therefrom in and up to
the amount of the Judgment Amount Assigned. PURCHASER agrees to
buy all of said rights and interests from SELLER and to pay the
Purchase Price under and subject to the terms and conditions of
this Agreement.
5.2 In making this Agreement and purchasing a portion of
SELLER's Litigation Proceeds, PURCHASER is not otherwise
acquiring or assuming any responsibility, obligation or liability
of SELLER or arising out of any rights or interests of SELLER
being purchased including, but not limited to, any duty or
obligation to the Judgment Debtor(s), the SELLER or any
obligation or expense with regard to the Litigation, the Appeal
or any retrial of the subject matter of the Litigation or issues
related thereto (including court costs or sanctions).
5.3 It is acknowledged and agreed that, this Agreement does not,
and shall not be interpreted so as to affect any rights of SELLER
to make such claims against Attorney, as may be otherwise
permitted by law or rule of professional conduct. SELLER having
disclosed to PURCHASER the material provisions of the fee
agreement between Plaintiffs and Attorney, and in reliance
thereon by PURCHASER, it is understood that the agreement of
SELLER to permit the sale and assignment to PURCHASER a portion
of SELLER's Litigation Proceeds for cash hereunder shall in no
way supersede, amend, modify, or otherwise detract from or expand
SELLER's or Plaintiffs' rights or obligations under Attorney's
existing contract with Plaintiffs for legal representation.
6.0 Rights In Proceeds.
6.1 That portion of the Litigation Proceeds and the rights to
the Judgment Collateral and the Litigation assigned to PURCHASER
shall be satisfied and paid to PURCHASER in full, on a priority
basis in accordance with Exhibit 4, prior to any Proceeds or
other consideration paid to or received by SELLER, but shall be
secondary to any assignment made to an assignee listed in Exhibit
4 with a priority higher than that of PURCHASER. SELLER shall not
be entitled to receive any recovery or any rights or interests on
account of the Litigation, unless and until the full Judgment
Amount Assigned has been received by PURCHASER.
6.1.1 There may be one (1) or more purchasers, but no
more than four (4) purchasers (hereinafter the "Purchase
Class"), who will be given equal priority with that of
PURCHASER hereunder. The Purchase Class shall consist of
certain select stockholders of the SELLER's common stock who
have been given the opportunity to participate in the herein
described transaction. The Purchase class shall receive any
Litigation Proceeds on a pro-rata basis as determined by
each purchaser's Puchase Price. Each of the purchasers in
the Purchase Class shall be given the same terms of purchase
relative to discount rates.
6.2 PURCHASER's rights in the Litigation Proceeds and Judgment
Collateral shall be satisfied at such time as PURCHASER has
received the full Judgment Amount Assigned.
6.3 The rights of SELLER to recover and receive amounts due
under the Judgment and Judgment Collateral and the Litigation, in
excess of the Judgment Amount Assigned, are and shall remain the
property of SELLER.
6.4 In the event that any distribution of Litigation Proceeds to
the Purchaser Class identified in Exhibit 4 results in an amount
that is less than the Assigned Portion for each of the members of
the Purchaser Class, then the Litigation Proceeds shall be
distributed pro-rata in accordance with the percentage of
Purchase Price paid by each member of the Purchase Class. Any
shortfall between the Assigned Portion and the distributed
portion shall be made whole by SELLER in the form of shares of
common stock of the SELLER with a market value as determined on
the day of distribution.
6.4.1 In no event will the PURCHASER be made whole under
subparagraph 6.4 if the Judgment in the Lawsuit is reversed
in an unappealable decision by the appropriate court; or, if
there are no Litigation Proceeds to be distributed.
6.5 Notwithstanding subparagraph 6.1, it is understood and
acknowledged that the rights purchased by PURCHASER hereunder are
subject to: the liens identified in Exhibit 4, or approved in
writing by PURCHASER in accordance with the provisions of this
Agreement; and the rights of Attorney to costs and attorneys'
fees under the presently existing fee agreement between
Plaintiffs and Attorney.
7.0 Representations.
SELLER hereby represents, warrants and agrees with PURCHASER as
follows:
7.1 The documents and information provided by SELLER to
PURCHASER, attached hereto, are accurate and complete and, as of
the date hereof, have not been superseded or altered as to legal
effect, validity or amount by the Court, stipulation or
otherwise. As of the date of this Agreement, no action has been
taken and, as of the Closing Date, no action shall have been
taken which has the effect of settling or deciding the Appeal or
which materially alters or changes the legal validity, effect of
or amounts stated in said documents and information or the value
of SELLER's Litigation Proceeds, the Judgment, or Judgment
Collateral.
7.2 The representations and warranties of SELLER contained in
this Agreement shall be true and correct in all material respects
on and as of the Closing Date with the same force and effect as
though such representations and warranties had been made on and
as of that date. Notwithstanding any other provisions of this
Agreement, should the case be settled or decided in whole or in
part or all representations or warranties not be fully true and
correct at the xxxx XXXXXX receives the Purchase Price, the sale
shall not close and PURCHASER's rights under Section 20.0, below,
will apply. SELLER shall not be entitled to accept the Purchase
Price without first giving written notice to PURCHASER and
obtaining PURCHASER's written consent.
7.3 Except as set forth in Exhibit 4 as to assignment of a
portion of the proceeds, SELLER has not assigned, transferred or
given, as collateral to any party other than PURCHASER, any right
or interest of SELLER in the Litigation, the Litigation Proceeds,
the Judgment, the Judgment Collateral, or any Proceeds thereof.
SELLER shall not: make any assignment or transfer or give, as
collateral, any right or beneficial interest of SELLER in the
Litigation, the Litigation Proceeds, the Judgment, the Judgment
Collateral or any Proceeds thereof or rights therein, or take any
other action that could have the effect of impairing or delaying
PURCHASER's receipt of the Judgment Amount Assigned. It is
intended and understood that any assignment or transfer of right
or beneficial interest in the Litigation, the Litigation
Proceeds, the Judgment, the Judgment Collateral, or any Proceeds
thereof or rights therein shall be subordinate to and shall not
adversely affect any right or interest of PURCHASER in the
Litigation, the Litigation Proceeds, the Judgment, the Judgment
Collateral or any Proceeds thereof or rights therein. Except as
disclosed by SELLER in Exhibit 4, or otherwise agreed to by
PURCHASER in writing, all Proceeds to which SELLER is entitled on
account of Litigation, the Litigation Proceeds, the Judgment and
the Judgment Collateral shall be paid first to Law Finance Group
and secondly to PURCHASER, until the full Judgment Amount
Assigned to the extent remaining has been paid to PURCHASER.
7.4 Except as set forth in Exhibit 4, there are no persons who
have liens against amounts to which SELLER may be entitled on
account of the Litigation. SELLER agrees to refrain from causing
or permitting any other liens to be placed against the Judgment,
without the prior written consent of PURCHASER, which consent may
not be withheld unless a proposed lien materially impairs the
rights, value, priority or collectability of the rights assigned
to PURCHASER hereunder.
7.5 Except as set forth in Exhibit 4, SELLER is not aware of any
asserted or unasserted claims, liens or judgments against the
SELLER which would materially impair the rights, value, priority
or collectability of the rights assigned to PURCHASER hereunder.
7.6 SELLER has the power, authority, right and competence to
enter into this Agreement, and does so willingly and freely. All
approvals, actions and consents required to authorize SELLER to
enter into this Agreement have been obtained and taken and, upon
execution by SELLER, this Agreement and all documents
contemplated to be signed by SELLER herein shall be valid and
binding obligations and undertakings of SELLER. Entering into
this Agreement and carrying out the actions provided for in this
Agreement and the Exhibits will not cause SELLER to be in breach
or violation of any other agreement or legal obligation to which
SELLER is a party or subject.
7.7 SELLER shall use best efforts and exercise good faith to
pursue SELLER's rights in the Litigation, to bring the Litigation
to good faith settlement or final judgment; and to enforce
collection of all money and other Proceeds due on account of the
Litigation, including any settlement with Judgment Debtor(s).
7.8 SELLER has not and shall not, directly or indirectly, delay,
seek to prevent, impair, or frustrate the rights granted to
PURCHASER under this Agreement, or payment of the Judgment Amount
Assigned to PURCHASER, in any way.
7.9 SELLER shall make all reasonable, good faith efforts to
cause Plaintiffs to vigorously:
7.9.1 Defend the Judgment on Appeal and fully
prosecute and enforce all rights in the Judgment in both
the Appeal and any further proceedings ordered or
permitted by the Court or applicable law.
7.9.2 Pursue Plaintiffs' and SELLER's underlying
claims in the Litigation, unless advised by Attorney or
SELLER's Attorney that pursuit of such claims would be
fruitless or not economically feasible, in light of the
likely cost and risks in doing so.
7.9.3 Pursue collection of the Judgment and promptly
exercise collection rights against the Judgment
Collateral.
7.10 SELLER shall notify PURCHASER and keep PURCHASER advised
regarding: the name(s), address(es), telephone and fax numbers
of SELLER and of all legal counsel engaged to represent
Plaintiffs or SELLER in the Litigation; and the nature and scope
of representation of all such legal counsel and any change
therein.
7.11 SELLER shall give PURCHASER prompt written notice of any
material change in any of the information contained in the
representations and warranties or Exhibits to this Agreement.
8.0 Litigation Documentation.
Unless otherwise requested in writing by PURCHASER and subject to
subparagraph 2.4, SELLER shall, and SELLER hereby instructs
Attorney and SELLER's Attorney, as SELLER's agent, to promptly
provide and continue to provide PURCHASER with:
8.1 All future Court documents, including, but not limited to,
any Notices, Orders of Briefs presented to any party to the
Litigation or filed with any court.
8.2 All future correspondence, written proposals or agreements,
and notice of any oral proposals or agreements between SELLER,
Plaintiffs and Judgment Debtor(s) relating to the Litigation, the
Judgment Collateral, settlement, alternative dispute resolution
procedures, or collection and payment of the Judgment or the
Litigation.
8.3 Any proposed assignment by SELLER or any interest in the
Judgment, Judgment Collateral or rights in the Litigation, and
written notice of any other similar proposed action on the part
of SELLER. Unless waived in writing by PURCHASER, such proposed
assignment or notice shall be provided to PURCHASER not less than
seven (7) days prior to SELLER making the proposed assignment or
taking the proposed action.
8.4 Notice of and documents relating to payment or receipt of
any money, consideration or other Proceeds by Plaintiffs,
Attorney, SELLER or SELLER's Attorney on account of the Judgment,
the Judgment Collateral or the Litigation, settlement or payment
of the Judgment, and all accountings of the application of said
money or other things of value received.
8.5 Information requested by PURCHASER relating to the status of
the Appeal, the Litigation, settlement, alternative dispute
resolution proceedings and any efforts to enforce the Judgment.
9.0 Assignment Of Litigation proceeds.
It is understood and agreed that the Assignment evidences the
transfer of the Judgment Amount Assigned and PURCHASER's right to
receive payment hereunder and shall remain in full force and
effect until the entire Judgment Amount Assigned has been
received by PURCHASER. Upon PURCHASER's remittance of the
Purchase Price to SELLER, PURCHASER shall be the sole and
absolute owner of the first Litigation Proceeds which SELLER is
entitled to collect or receive on account of the Judgment, the
Judgment Collateral and the Litigation, up to the full Judgment
Amount Assigned, whether by way of enforcement of the Judgment,
compromise and settlement of SELLER's rights arising out of the
Judgment and Litigation, or otherwise. As collateral for and to
secure SELLER's representations, warranties, undertaking and
agreements made or given under this Agreement, SELLER hereby
grants PURCHASER a security interest in all of SELLER's
Litigation Proceeds and interests in the Judgment, the Judgment
Collateral and the Litigation not other wise assigned and
transferred to PURCHASER under this Agreement (the "Collateral").
This shall constitute a security agreement between SELLER and
PURCHASER for that purpose. It shall not in any way affect or
impair any rights or fee lien of Attorney in and to the Judgment,
the Judgment Collateral, or the Litigation, absent an express
written agreement with Attorney to the contrary. SELLER shall
execute, and PURCHASER may file, one or more UCC-1 Financing
Statement Forms for the purpose of perfecting PURCHASER's
security interest in the Collateral, and as notice to third
parties that SELLER has conveyed an interest in the SELLER's
Litigation Proceeds.
10.0 Acknowledgment/Assignment Of Litigation Proceeds.
It is understood and agreed that the Assignment is intended to
serve as evidence and notice of the Assignment. Upon PURCHASER's
remittance of the Purchase Price, PURCHASER is fully authorized
to and shall insert the Closing Date on the Assignment. The
Assignment may be filed by PURCHASER with the Court, on or after
the Closing Date, pursuant to the provisions of applicable laws,
court rules or local custom, and served upon such persons as may
be deemed necessary by PURCHASER to perfect and give effect to
PURCHASER's ownership of and right to receive the Judgment Amount
Assigned.
11.0 Breach.
SELLER understands and acknowledges that PURCHASER is relying on
all of SELLER's agreements, representations and warranties in
entering into this Agreement and in purchasing the Judgment
Amount Assigned. The parties agree that, if SELLER breaches any
material part of this Agreement of if any of SELLER's
representations or warranties fail to be correct in any respect,
SELLER will be in breach of this Agreement.
11.1 If SELLER breaches any material part of this Agreement, and
SELLER fails to cure said breach within fifteen (15) days of
PURCHASER's notice to SELLER of such breach, PURCHASER is granted
the right to immediately recover from the SELLER all amounts due
under this Agreement and the Judgment Amount Assigned. This right
of PURCHASER is in addition to any other rights to which
PURCHASER is entitled by law because of any breach by SELLER,
including PURCHASER's rights in and to Collateral given by
SELLER. Any breach or failure of the representations and
warranties of subparagraph 7.2, above, shall not be subject to
cure and SELLER shall have no rights to receive any payment
absent the expressed written approval of PURCHASER.
11.2 Should SELLER fail to adhere to the representations and
warranties set forth in subparagraph 7.9, above, then PURCHASER
is fully authorized and permitted, but not obligated, on behalf
of SELLER and PURCHASER and subject always to the rights and
informed consent of SELLER to engage a new Attorney, to pursue
any of SELLER's rights with respect to the Appeal and prosecute,
enforce and resolve the rights of SELLER, and PURCHASER in
furtherance of the Appeal and the Litigation, to the fullest
extent as if done by the SELLER. SELLER hereby appoints PURCHASER
as SELLER's attorney-in-fact, in the event of such default or
breach under this sub-section, to do all things and take all
actions in its own name and as attorney-in-fact, for SELLER to
pursue such actions and to engage such legal counsel for the
account of SELLER and PURCHASER, subject always to the rights and
informed consent of the SELLER, as PURCHASER shall, in its good
faith judgment, deem to be in the best interests of the
PURCHASER, SELLER and Attorney. In such event, any amounts
recovered on account of the SELLER's interests in the SELLER's
Litigation Proceeds, shall be applied: (i) first, to recoup all
fees and expenses incurred in exercise of said authority
(including attorneys fees and costs); (ii) next, to PURCHASER on
account of the Judgment Amount Assigned; (iii) the balance to
SELLER, as SELLER's interests may appear and as SELLER may
direct.
12.0 Indemnification.
12.1 PURCHASER agrees to indemnify, defend and hold SELLER
harmless from and against any and all losses, costs, damages,
claims and expenses (including reasonable attorneys' fees) which
SELLER may sustain at any time by reason of: (i) any debt,
liability or obligation incurred by PURCHASER, (ii) any liability
or obligation of any kind for prosecution or defense thereof, or
(iii) the breach of, inaccuracy of, or failure to comply with, or
the existence of any facts resulting in the inaccuracy of, any of
the warranties, representations, or covenants of PURCHASER
contained in this Agreement or in any exhibits or documents
delivered pursuant hereto or in connection with the subject
matter of this Agreement.
12.2 SELLER agrees to indemnify, defend and hold PURCHASER
harmless from and against any and all losses, costs, damages,
claims and expenses (including reasonable attorneys' fees) which
PURCHASER may sustain at any time by reason of: (i) any debt,
liability or obligation incurred by SELLER, (ii) any liability or
obligation of any kind for prosecution or defense of such debt,
liability or obligation incurred by SELLER, and (iii) the breach
of, inaccuracy of, or failure to comply with, or the existence of
any facts resulting in the inaccuracy of, any of the warranties,
representations, or covenants of SELLER contained in this
Agreement or in any exhibits or documents delivered pursuant
hereto or in connection with the subject matter of this
Agreement.
12.3 Any party who receives notice of a claim for which it will
seek indemnification ("Indemnified Party") hereunder shall
promptly notify the party from which the Indemnified Party will
seek indemnification ("Indemnifying Party") of such claim in
writing. The Indemnifying Party shall have the right to assume
the defense of such action at its cost with counsel reasonably
satisfactory to the Indemnified Party. The Indemnified Party
shall have the right to participate in such defense with its own
counsel at its cost.
13.0 Attorney-Client Relationship.
13.1 Nothing in this Agreement is intended to require action that
may impair the attorney-client privilege, or other evidentiary
privilege as may exist in favor of SELLER in connection with the
Litigation. This Agreement shall not be interpreted or enforced
in a manner that would have the effect of loss of any such
privilege. If redacting portions of any writing, required to be
given PURCHASER in this Agreement, would avoid waiver or loss of
any such privilege: the writing shall be redacted by Attorney or
SELLER's Attorney so as to avoid waiver or loss of privilege and
provided to PURCHASER. PURCHASER shall be notified that the
writing was redacted for that purpose and shall be advised of the
general subject matter of the redacted material. Further, nothing
in this Agreement is intended to prevent or impair Plaintiffs',
Attorney's, SELLER's, and SELLER's Attorney's ability to
vigorously conduct the Litigation in such manner as they deem in
good faith and in their sole discretion will benefit Plaintiffs
and SELLER, without interference from PURCHASER. Provided,
however, nothing shall be interpreted as restricting PURCHASER's
exercise of its discretion in analysis of the results of its due
diligence under Section 15.0, below, or enforcement of
PURCHASER's rights under this Agreement and the Assignment, in
the event of a breach of the terms of this Agreement.
13.2 Should a dispute arise at any time between Plaintiffs,
SELLER, and Attorney, or any of them, regarding payment or
application of any sums recovered on the Judgment, which dispute
may delay, reduce or otherwise affect payment or retention of the
Judgment Amount Assigned to PURCHASER, SELLER shall promptly
notify PURCHASER in writing and shall nevertheless immediately
pay, on a pro rata basis, any undisputed portion of the sums
recovered. The Notice shall state the facts of the dispute in
order that PURCHASER may fully assert its rights. In order to
allow PURCHASER to become fully aware of the dispute, SELLER
hereby authorizes Attorney and SELLER'S Attorney to provide
PURCHASER all facts and information related to the dispute.
Notwithstanding any other provisions of this Agreement, including
subparagraph 13.1, above, SELLER expressly waives attorney-client
privilege as to information requested by PURCHASER under these
limited circumstances and for this limited purpose. Should the
dispute delay payment of any amount otherwise due or payable to
PURCHASER, all amounts due or payable to PURCHASER shall begin to
bear interest at the rate of eight percent (8%) per annum, or
such lesser rate as shall be the maximum rate permitted by
applicable law, from the date any amounts are paid or payable by
the Adverse Party until said sums due or payable to PURCHASER
have been paid in full.
14.0 Cooperation.
SELLER will, and will so instruct Attorney and SELLER's Attorney
to, keep PURCHASER fully advised about and will cooperate and
consult with PURCHASER in connection with, any and all matters
relating to the Appeal and the Litigation including, but not
limited to, matters with regard to Plaintiffs', SELLER's, and
Attorney's legal positions, briefs and oral arguments, settlement
negotiations, alternate dispute resolution proceedings, and
engagement of appellate or other counsel.
15.0 Contingencies.
This Agreement is expressly conditioned upon PURCHASER conducting
and completing its due diligence with regard to the subject
matter of this Agreement and providing SELLER with PURCHASER's
written approval of its intent to complete the purchase.
PURCHASER's approval and intention to complete the purchase shall
be determined in PURCHASER's sole and absolute discretion.
PURCHASER shall have fifteen (15) days from the receipt of all
documents and Exhibits, properly signed and witnessed, or three
(3) business days of PURCHASER'S receipt of the opinion letter
referenced in Section 16.0, whichever is later, but not later
than thirty (30) days, to provide SELLER and SELLER's Attorney
with written approval of its intention to complete the purchase.
16.0 Purchaser's Due Diligence/Seller's Payment of Due Diligence
Costs.
SELLER understands that PURCHASER will incur costs and expenses
in connection with the completion of PURCHASER's due diligence
referred to herein above. It is understood that upon receipt of
the signed Agreement, PURCHASER will incur expenses for a credit
and liabilities investigation and report. It is further
understood that upon receipt of the signed Agreement, PURCHASER
will engage an attorney, for the purpose of reviewing the Lawsuit
and advising PURCHASER as part of PURCHASER's due diligence. It
is acknowledged that any analysis or opinion received by
PURCHASER from legal counsel engaged to review and evaluate the
Litigation: (i) is legal advice rendered solely for PURCHASER's
benefit in completing its due diligence; (ii) is subject to
certain privileges in favor of PURCHASER and said attorney; (iii)
and in no way constitutes legal advice to, nor may it be relied
upon by Plaintiffs, Attorney, SELLER or SELLER's Attorney, should
information relating to said attorneys' advice be made available
to Plaintiffs, Attorney, SELLER, or SELLER's Attorney, absent
prior written consent from the individual attorney engaged by
PURCHASER.
17.0 Delivery By Purchaser/Closing.
PURCHASER shall pay SELLER the Purchase Price (less any amounts
deductible therefrom) within ten (10) business days after it has
completed its due diligence and approved of and expressed its
intention, in writing, to complete the purchase. Except as
hereafter provided, upon PURCHASER's tender of the Purchase Price
to SELLER: the PURCHASER's rights in the SELLER's Litigation
Proceeds, the Judgment Proceeds, the Judgment Amount Assigned,
and the Litigation, and all of PURCHASER's rights, as provided
for in this Agreement, shall be fully vested; SELLER'S assignment
shall be absolute and irrevocable by SELLER; and PURCHASER shall
be entitled to file with the Court and serve the exhibit(s)
evidencing SELLER's Assignment and the form UCC-1 giving effect
to the parties agreements hereunder.
18.0 Miscellaneous.
18.1 Entire Agreement. This Agreement, including the exhibits
hereto, sets forth the entire agreement and understanding between
the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements and understandings
of every kind and nature between them. No party hereto shall be
bound by any term, condition, warranty or representation other
than as expressly provided for in this Agreement, or as may be on
a date on or after to the date hereof duly set forth in writing
signed by the party hereto which is to be bound thereby. This
Agreement shall not be changed, modified or amended except by a
writing dated and signed by the party to be charged.
18.2 Governing Law. This Agreement and its validity,
construction and performance shall be governed in all respects by
the laws of the State of Connecticut, but without recourse to
that State's conflict of laws provisions.
18.3 Severability. If any provisions of this Agreement or the
application of any provision hereof to any person or circumstance
is held invalid, the remainder of this Agreement and the
application of such provision to other persons or circumstances
shall not be affected unless the provision held invalid shall
substantially impair the benefits of the remaining portions of
this Agreement.
18.4 Benefits of Parties. This Agreement shall be binding
upon, and inure to the benefit of the parties hereto,
individually and to each and all their agents, attorneys,
beneficiaries, representatives and its respective successors,
spouses, heirs, legal representatives and assigns. No
assignments by any party shall relieve the assigning party from
any obligation, duty, representation, warranty or agreement
absent an express written release given by the non-assigning
party.
18.5 Headings Singular/Plural. The headings in the section of
this Agreement are inserted for convenience or reference only and
shall not constitute a part hereof. Where context so permits, the
singular form of a word shall include the plural and the plural
form shall include the singular.
18.6 Notices.
Any notices given under this Agreement shall be in writing and
delivered by first class mail or by overnight courier service
(such as Federal Express, DHL, UPS, etc.) to the parties as
follows unless changed by written notice:
In the case of Competitive Technologies, Inc.:
Xx. Xxxx X. Nano
President and CEO
Competitive Technologies, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
with a copy to:
V.P. and General Counsel
Competitive Technologies, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
In the case of [*]:
[*]
[*]
[*]
with a copy to:
Name:
Title:
Firm:
Street Address:
City, State, Zip:
18.7 Attorney's Fees. In the event that any action or
proceeding is brought to enforce or interpret any provision,
covenant or condition contained in the Agreement on the part of
PURCHASER or SELLER, the prevailing party in such action or
proceeding shall be entitled to recover from the party not
prevailing its expenses therein, including reasonable attorneys'
fees and allowable costs.
_____________
* Portions of this Exhibit (indicated by asterisks) have been
omitted pursuant to a request for confidential treatment pursuant
to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended, and such portions have been filed separately with the
Commission.
18.8 Disputes Between The Parties. At the request of any
party, any dispute between the parties arising out of the
transaction provided for in this Agreement, and the exhibits to
this Agreement, shall be submitted to final and binding
arbitration in Fairfield, Connecticut, by a three (3) member
panel, under the Commercial Arbitration Rules of the American
Arbitration Association then in effect. The Association shall be
requested to provide a panel of prospective arbitrators
consisting of persons experienced in business law matters. Prior
to appointment of the arbitrator, either party may commence
judicial proceedings, in either the state or federal court having
jurisdiction over the party against whom relief is sought, to
obtain preliminary relief, including injunctive relief, for the
purposes of: (i) enforcement of this arbitration provision; (ii)
obtaining appointment of arbitrator(s); (iii) preserving the
status quo; (iv) preventing the disbursement by any person of
disputed funds; and (v) preserving and protecting the rights of
either party pending the outcome of the arbitration. Any party
may have judgment entered on the arbitration award. subparagraph
18.7, above, shall apply to any arbitration or court proceeding
between the parties.
18.9 Further Assurances. Each party agrees to execute and file
or caused to be filed such other or further documents as may be
requested by the other party to give effect to the purposes of
the Agreement. Such further documents shall include, but not be
limited to: (i) documents intended to perfect PURCHASER's
ownership of and power to exercise the rights herein granted by
SELLER; (ii) if the Judgment is modified, vacated and there are
further proceedings, a replacement Assignment in order to give
effect to PURCHASER's rights in and to the Litigation Proceeds,
the Judgment Collateral, Judgment and this Agreement.
18.10 Force Majeure. Neither of the Parties hereto shall be
liable in damages or have the right to cancel this Agreement for
any delay or default in performing hereunder if such delay or
default is caused by conditions beyond its control, including,
without limitation, acts of God, government restrictions, wars or
insurrections.
18.11 No Waiver. Failure by either Party to enforce any
provision of this Agreement or assert a claim on account of
breach hereof shall not be deemed a waiver of its right to
enforce the same or any other provision hereof on the occasion of
a subsequent breach.
18.12 Remedies. The remedies expressed in this Agreement are
not and shall not be deemed to be exclusive and shall be in
addition to any other remedies that either Party may have at law
or in equity.
18.13 Counterparts. This Agreement may be executed in two (2)
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
19.0 Resolution of Litigation Prior to Closing.
In the event the Appeal is resolved, whether by settlement,
judicial decision, or otherwise, on or before Proceeds Date,
PURCHASER's obligation to purchase and SELLER's obligation to
sell under this Agreement shall cease.
20.0 Arm's Length.
The parties each acknowledge and agree that: (i) this Agreement
has been entered into voluntarily and freely; and (ii) the
Purchase Price has been determined at arm's length and is
reasonable in light of the risks assumed by PURCHASER.
*****
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the Effective Date first set forth above.
for Competitive Technologies, Inc. for [*]
By: s/Xxxx X. Nano By: s/[*]
Name: Xxxx X. Nano Name: [*]
Title: President and CEO Title: Individual Investor
Date: 11/17/03 Date: 11-14-03
_____________
* Portions of this Exhibit (indicated by asterisks) have been
omitted pursuant to a request for confidential treatment pursuant
to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended, and such portions have been filed separately with the
Commission.
ACKNOWLEDGMENT
For Competitive Technologies, Inc.
STATE OF Connecticut)
)
COUNTY OF Fairfield )
On (Date) 11/17/03 before me, (Notary's name, title)
Xxxxxxxx Xxxxxxxxxxx , personally appeared Xxxx X. Nano,
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on
the instrument the person, or the entity upon behalf of which the
he acted, executed the instrument.
WITNESS my hand and official seal.
s/Xxxxxxxx Xxxxxxxxxxx
Notary's Signature
XXXXXXXX XXXXXXXXXXX
NOTARY PUBLIC
MY COMMISSION EXPIRES SEP. 30, 2008
ACKNOWLEDGMENT
For [*]:
STATE OF ______________________)
)
COUNTY OF _____________________)
On __________________ before me,_______________________,
personally appeared______________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
____________________________
Notary's Signature
_____________
* Portions of this Exhibit (indicated by asterisks) have been
omitted pursuant to a request for confidential treatment pursuant
to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended, and such portions have been filed separately with the
Commission.
