EXECUTION COPY
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is
made andentered into as of July 6, 1997, by and among ACACIA
RESEARCH CORPORATION, a California corporation (the "Purchaser"),
H. XXX XXXXXX, an individual ("Xxxxxx"), and XXXXX X. XXXXXXX, an
individual ("Xxxxxxx" and, together with Xxxxxx, the Sellers").
R E C I T A L S:
WHEREAS, the Sellers desire to sell to the Purchaser, and
the Purchaser desires to purchase from the Sellers, shares of the
Common Stock, $0.001 par value, of Soundview Technologies
Incorporated, a Delaware corporation ("Soundview"), for the
consideration set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and
agreements herein, and subject to the terms and conditions
hereinafter set forth, the parties hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale. On the basis of the
representations, warranties, covenants, and agreements, and
subject to the satisfaction or waiver of the terms and
conditions, set forth herein, Xxxxxx agrees to sell to the
Purchaser and the Purchaser agrees to purchase from Xxxxxx
1,312,500 shares of Common Stock (the "Xxxxxx Shares") and
Xxxxxxx agrees to sell to the Purchaser and the Purchaser agrees
to purchase from Xxxxxxx 1,312,500 shares of Common Stock (the
"Xxxxxxx Shares" and, together with the Xxxxxx Shares the
"Soundview Shares") for an aggregate purchase price as follows:
(i) $250,000, paid in cash by the Purchaser to Xxxxxx
at the Closing;
(ii) $250,000, paid in cash by the Purchaser to Xxxxxxx
at the Closing;
(iii) 200,000 shares of common stock, no par value, of
the Purchaser, issued in the name of Xxxxxx within
5 business days of the Closing ("Xxxxxx'x Acacia
Shares");
(iv) 200,000 shares of common stock, no par value, of
the Purchaser, issued in the name of Xxxxxxx
within 5 business days of the Closing ("Xxxxxxx'x
Acacia Shares" and, together with Xxxxxx'x Acacia
Shares, the "Acacia Shares");
(v) a non-recourse promissory note in the aggregate
principal amount of $450,000, made by Purchaser in
favor of Xxxxxx (the "Xxxxxx Note") along with the
Pledge Agreement in the form of Exhibit A; and
(vi) a non-recourse promissory note in the aggregate
principal amount of $450,000, made by Purchaser in
favor of Xxxxxxx (the "Xxxxxxx Note" and, together
with the Xxxxxx Note, the "Notes") along with the
Pledge Agreement in the form of Exhibit A.
1.2 The Closing of Purchase and Sale of Common Stock. Such
purchase and sale shall take place at a closing (the "Closing")
to be held at the offices of Purchaser, 00 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, on July 6, 1997 at 10:00 a.m., or on
such other date and at such time as may be mutually agreed upon.
At the Closing, the Sellers will convey and deliver one or more
certificates, duly endorsed for transfer to Purchaser, evidencing
the Soundview Shares against two checks, each in the amount of
$250,000, payable to each of Xxxxxx and Xxxxxxx, and the Notes
and related Pledge Agreements, in payment of the purchase price
for the Soundview Shares. In addition, at the Closing (i) each
party hereto shall have entered into the Amended and Restated
Stockholders' Agreement in the form set forth as Exhibit B
hereto, and (ii) Soundview, on the one hand, and each of Xxxxxx
and Xxxxxxx, on the other hand, shall have entered into the
Employment Agreements in the form set forth in Exhibits C and D,
respectively.
1.3 Purchaser's Buy-Back Rights. In the event that any
Soundview Shares are held by either Seller following Purchaser's
failure to make timely payments under either Note, Purchaser may,
at any time prior to Xxxxx 0, 0000, xxxxxxxxxx any such Soundview
Share from such Seller at a price equal to the unpaid balance of
such Note as of November 1, 1997 plus an amount equal to 1.5% of
such unpaid balance multiplied by the number of months (and any
fraction thereof) from November 1, 1997 through the date of such
payment, divided by the number of Soundview Shares released to
Sellers pursuant to the terms of the Pledge Agreement.
ARTICLE 2
REPRESENTATIONS BY PURCHASER
Purchaser represents that:
2.1 Authorization.
(i) Purchaser is duly authorized to execute and
deliver this Agreement and all other agreements and instruments
executed in connection herewith;
(ii) Purchaser is a duly organized and validly
existing corporation in good standing under the laws of the State
of California and has all requisite corporate power and authority
for the ownership and operation of its properties and for the
carrying on of its business as now conducted and as proposed to
be conducted. Purchaser is duly licensed or qualified and in
good standing as a foreign corporation authorized to do business
in all jurisdictions in which the nature of the respective
business conducted or property owned by it makes such
qualification necessary.
(iii) this Agreement and such other agreements and
instruments constitute the valid and binding obligations of
Purchaser, enforceable against it in accordance with their
respective terms;
(iv) the execution, delivery and performance of
this Agreement will not breach, violate or conflict with any
agreement to which Purchaser is a party or is bound; and this
Agreement and each other agreement contemplated hereby constitute
the legal, valid and binding obligations of Purchaser enforceable
against Purchaser in accordance with their respective terms;
(v) Purchaser is not in breach of, or default
under, its Articles of Incorporation or Bylaws, or any material
contract to which it is a party; and
(vi) no consent or approval of any Person is
required in connection with the execution, delivery and
performance of this Agreement and such other agreements and
instruments by Purchaser which has not heretofore been obtained.
2.2 Acacia Shares. The Acacia Shares have been duly
authorized, are validly issued and are fully paid and
nonassessable.
2.3 Investment.Purchaser is acquiring the Soundview Shares
for investment for its own account, and not with the view to, or
for resale in connection with, any "distribution" of all or any
portion thereof within the meaning of the Securities Act.
Purchaser understands that the Soundview Shares to be purchased
hereunder have not been registered under the Securities Act by
reason of a specific exemption from the registration provisions
of the Securities Act which depends upon, among other things, the
bona fide nature of Purchaser's investment intent and the
accuracy of Purchaser's representations as expressed herein.
Purchaser also represents that it has not been organized solely
for the purpose of acquiring the Soundview Shares. Purchaser
acknowledges that the Soundview Shares being purchased hereunder
must be held indefinitely unless the transfer thereof is
registered under the Securities Act or unless an exemption from
such registration is available.
2.4 Accuracy of Information. Except as otherwise
disclosed to Sellers, as of the date hereof, all of Purchaser's
reports filed with the Securities and Exchange Commission under
the Exchange Act comply in all material respects with all
applicable requirements, and all information made publicly
available by Purchaser in such reports is true and complete in
all material respects and does not contain any untrue statement
of a material fact or omit to state a material fact necessary to
make any statement therein not misleading.
2.5 Other. No Person has or will have, as a result of the
transactions contemplated by this Agreement, any right, interest
or valid claim upon or against Sellers for any commission, fee or
other compensation as a finder or broker because of any act or
omission by such Purchaser and Purchaser agrees to indemnify and
hold Soundview harmless against any such commissions, fees or
other compensation.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLERS
Xxxxxx represents and warrants that:
3.1 Good and Marketable Title. Xxxxxx has, and at the
Closing Purchaser will receive, good and marketable title to the
Xxxxxx Shares, free and clear of all liens, claims, security
interests, charges and encumbrances (other than those imposed by
the Pledge Agreement or the Stockholders' Agreement).
3.2 Authority; Enforceable Agreements. Xxxxxx has full
legal capacity and authority to enter into this Agreement and
each other agreement contemplated hereby to which such Xxxxxx is
a party; the execution, delivery and performance of this
Agreement will not breach, violate or conflict with any agreement
to which Xxxxxx is a party or is bound; and this Agreement and
each other agreement contemplated hereby constitutes the legal,
valid and binding obligation of Xxxxxx, enforceable against
Xxxxxx in accordance with its terms.
Xxxxxxx represents and warrants that:
3.3 Good and Marketable Title. Xxxxxxx has, and at the
Closing Purchaser will receive, good and marketable title to the
Xxxxxxx Shares, free and clear of all liens, claims, security
interests, charges and encumbrances (other than those imposed by
the Pledge Agreement or the Stockholders' Agreement).
3.4 Authority; Enforceable Agreements. Xxxxxxx has full
legal capacity and authority to enter into this Agreement and
each other agreement contemplated hereby to which Xxxxxxx is a
party; the execution, delivery and performance of this Agreement
will not breach, violate or conflict with any agreement to which
Xxxxxxx is a party or is bound; and this Agreement and each other
agreement contemplated hereby constitutes the legal, valid and
binding obligation of Xxxxxxx, enforceable against Xxxxxxx in
accordance with its terms.
Sellers jointly and severally represent and warrant that:
3.5 Material Contracts. Schedule 3.5 contains an accurate
and complete list of all contracts, agreements, licenses,
instruments and understandings (whether or not in writing) to
which either Seller or Soundview is a party or is bound and that
are material to the business, assets, financial condition or
results of operations of Soundview. Without limiting the
generality of the foregoing, such list includes all such
contracts, agreements, licenses and instruments: (a)providing for
payments of more than $25,000; (b)with any Affiliate; (c)for the
employment or retention or any director, officer, employee,
agent, shareholder, consultant or advisor; and (d)in the nature
of a profit sharing, bonus, stock option, stock purchase,
pension, deferred compensation or retirement, severance,
hospitalization, insurance or other plan or contract providing
benefits to any person or former director, officer, employee,
agent, shareholder, consultant or advisor or such persons'
dependents, beneficiaries or heirs. True and correct copies of
all items so listed in Schedule 3.5 have been provided to
Purchaser.
3.6 Litigation. There is no litigation or governmental
proceeding or investigation pending, or threatened against
Soundview affecting any of its properties or assets, or against
any officer, key employee or the shareholders of Soundview that
might result in any adverse change in the business, operations,
affairs or conditions of Soundview or that might call into
question the validity of this Agreement, any of the Soundview
Shares or any of the transaction contemplated hereby, nor has
there occurred any event, nor does there exist any condition, on
the basis of which any litigation, proceeding or investigation
might properly be instituted.
3.7 No Brokers or Finders. Sellers owe no commission, fee
or other compensation to any Person as a finder or broker as a
result of the transactions contemplated by this Agreement.
3.8 Capitalization; Status of Capital Stock. Soundview is
duly organized and existing under the laws of the State of
Delaware and is in good standing in Delaware and duly qualified
to do business in Connecticut. Soundview has a total authorized
capitalization consisting of 75,000,000 shares of Common Stock,
$.001 par value, of which 7,500,000 shares are issued and
outstanding. No amendment to the Certificate of Incorporation
has been filed or approved by the Board of Directors. All of the
outstanding shares of capital stock of Soundview have been duly
authorized, are validly issued and are fully paid and
nonassessable and have not been issued in violation of any
Person's preemptive rights. The Soundview Shares are duly
authorized, validly issued and fully paid and nonassessable free
and clear of all liens and encumbrances. There are no options,
warrants or rights to purchase shares of capital stock or other
securities of Soundview authorized, issued or outstanding, nor is
Soundview obligated in any other manner to issue shares of its
capital stock or other securities.
3.9 Assets and Liabilities. At the date hereof, Soundview
has at least $350,000 of cash and cash equivalents and total
liabilities at such date (contingent, accrued or otherwise) do
not exceed $50,000.
3.10 Compliance with Law. Soundview is organized and has
conducted its businesses in accordance with all applicable laws,
rules, regulations and orders of any governmental authority,
noncompliance with which could (individually or when aggregated
with all other such non-compliances) materially adversely affect
its business or condition, financial or otherwise, except
non-compliance being contested in good faith through appropriate
proceedings, so long as Soundview has established sufficient
reserves, if any, with respect to such items.
3.11 Absence of Changes. Since December 31, 1996, there has
been no event or condition of any character relating to Soundview
which materially adversely affects its business, properties,
condition (financial or otherwise), results of operations or
prospects.
3.12 Patents, Copyrights and Trademarks. Soundview has
sufficient title to and ownership of all necessary patents,
licenses, trademarks, service marks, trade names, copyrights,
trade secrets, inventions, franchises, computer software and
other proprietary rights, including those with respect to the
Patent, necessary for its businesses as now conducted, or as
presently proposed to be conducted, without any conflict with or
infringement of, the rights of others. Schedule 3.12 lists all
patents, licenses, trademarks, service marks, trade names,
copyrights, trade secrets, inventions, franchises, computer
software and other proprietary rights in which Soundview has an
interest and the nature and extent of such interest. To Sellers'
knowledge, Soundview has not violated any intellectual property
rights of any other person or entity. To Sellers' knowledge,
there is no third party which is infringing upon or violating any
of the intellectual property rights of Soundview. Soundview has
not granted any license or option or conferred any commercial
rights to any third parties with respect to the use of its
proprietary information.
3.13 Investment. Each Seller is acquiring the Acacia Shares
for investment for his own account, and not with the view to, or
for resale in connection with, any "distribution" of all or any
portion thereof within the meaning of the Securities Act. Each
Seller understands that the Acacia Shares to be acquired
hereunder have not been registered under the Securities Act by
reason of a specific exemption from the registration provisions
of the Securities Act which depends upon, among other things, the
bona fide nature of each Seller's investment intent and the
accuracy of each Seller's representations as expressed herein.
Each Seller acknowledges that the Acacia Shares being acquired
hereunder must be held indefinitely unless the transfer thereof
is registered under the Securities Act or unless an exemption
from such registration is available, and that each share
certificate representing Acacia Shares shall bear a legend
setting forth the restrictions on the transfer thereof. Each
Seller is an "accredited investor" as defined in Rule 501 under
the Securities Act.
3.14 Rule 144. Each Seller acknowledges that he is aware of
the provisions of Rule 144 promulgated under the Securities Act
which permit limited resale of shares purchased in a private
placement, subject to the satisfaction of certain conditions,
including, among other things, the availability of certain
current public information about Acacia, the resale occurring
after the expiration of minimum holding periods after a party has
purchased and paid for the security to be sold, the sale being
affected through a "broker's transaction" or in transactions
directly with a "market maker" and the number of shares being
sold during any three-month period not exceeding specified
limitations (except as provided in Rule 144(k)).
3.15 Certain Transactions. Other than as set forth on
Schedule 3.15, there are no transactions, agreements or
obligations between Soundview, on the one hand, and its officers,
directors or shareholders (including the Shareholder), or their
immediate family members or other associates or affiliates, on
the other hand, and no such person is an interested party to any
contract of Soundview or holds a direct or indirect ownership
interest in any business or corporation which competes with
Soundview.
ARTICLE 4
REGISTRATION RIGHTS WITH RESPECT TO ACACIA SHARES
4.1 Registration Rights.
(a) Registration. The Purchaser will file a Registration
Statement with the Securities and Exchange Commission (together
with any other federal agency at the time administering the
Exchange Act or the Securities Act of 1933, the "Commission") for
the resale of the Acacia Shares within thirty days of the date
hereof. Subject to the provisions of this Agreement, the
Purchaser shall use its reasonable best efforts to cause such
Registration Statement to be declared effective by the Commission
as promptly as shall be practicable. Purchaser shall use its
best efforts to keep such Registration Statement in effect until
Sellers have sold or otherwise distributed all Acacia Shares or
until such Acacia Shares may be traded without restriction
pursuant to paragraph (k) of Rule 144, if applicable. Purchaser
acknowledges and agrees that time is of the essence with respect
to the liquidity of the Acacia Shares. Sellers shall promptly
notify the Purchaser of the proposed manner of sale of any Acacia
Shares to be sold pursuant to such Registration Statement other
than in an unsolicited brokers' transactions including only usual
and customary brokers' commissions. Seller shall not undertake
any such transactions other than unsolicited brokers'
transactions including only usual and customary brokers'
commissions unless (i) Seller shall have furnished all
information required to be disclosed in any related prospectus
supplement, and (ii) Seller shall have agreed in writing to bear
all costs of registration and related expenses (including
attorneys' fees) in excess of $5,000.
(b) Suspension of Effectiveness. The Purchaser's
obligations under Section 4(a) above shall not restrict its
ability to suspend the effectiveness of, or direct the Sellers
not to offer or sell securities under, the Registration
Statement, at any time, for such reasonable period of time which
the Purchaser believes is necessary to prevent the premature
disclosure of any events or information having a material effect
on the Purchaser. In addition, the Purchaser shall not be
required to keep the Registration Statement effective, or may,
without suspending such effectiveness, instruct the Sellers not
to sell such securities, during any period during which the
Purchaser is instructed, directed, ordered or otherwise requested
by any governmental agency or self-regulatory organization to
stop or suspend such trading or sales.
(c) Holdback Agreement. In the event of any filing of a
prospectus supplement or the commencement of an underwritten
public distribution of the Purchaser's Common Stock under a
registration statement on or after the earlier to occur of (i)
payment of all principal of and interest on the Notes, and (ii)
April 15, 1998, the Sellers agree not to effect any public sale
or distribution of the Purchaser's Common Stock, including a sale
pursuant to Rule 144 or Rule 144A under the Securities Act,
during a period designated by the Purchaser in a written notice
duly given to the Sellers, which period shall commence
approximately 14 days prior to the effective date of any such
filing of such prospectus supplement or the commencement of such
underwritten public distribution of such Common Stock under a
Registration Statement and shall continue for up to 134
consecutive days; provided, however, that Sellers shall be
afforded "piggy-back" registration rights allowing participation
in such underwritten public distribution (which shall be
customary and usual "piggy-back" rights, limited in scope by the
underwriter's reasonable cut-backs and other reasonable
restrictions) in the event that any sale or distribution of
Purchaser's Common Stock is restricted pursuant to this Section
4.1(c) prior to the second anniversary of the earlier to occur of
(i) payment of all principal of and interest on the Notes, and
(ii) April 15, 1998. The terms of such "piggy-back" registration
rights shall be negotiated in good faith by the parties hereto
immediately following the execution of this Agreement and
memorialized in a written agreement.
(d) Registration Procedures. Except as otherwise expressly
provided herein, in connection with any registration of Acacia
Shares pursuant to this Agreement, the Purchaser shall:
(i) furnish to the Sellers copies of such Registration
Statement and such other documents as proposed to be filed
(including copies of any document to be incorporated by
reference therein), and thereafter furnish to the Sellers
such number of copies as may be reasonably requested in
writing by the Sellers of such Registration Statement, each
amendment and supplement thereto (including copies of any
document to be incorporated by reference therein), including
all exhibits thereto, the prospectus included in such
registration statement (including each preliminary
prospectus), and, promptly after the effectiveness of a
Registration Statement, the definitive final prospectus filed
with the Commission;
(ii) notify the Sellers, at any time when a
prospectus relating thereto is required to be delivered under
the Securities Act, of the occurrence of any event as a
result of which the prospectus included in such Registration
Statement (including any document to be incorporated by
reference therein) contains an untrue statement of a material
fact or omits any fact necessary to make the statements
therein not misleading and, at the request of the Sellers,
the Purchaser shall prepare a supplement or amendment
to such prospectus so that, as thereafter delivered to
the purchasers of such Acacia Shares, such prospectus will
not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading and
promptly make available to the Sellers any such supplement or
amendment; and
(iii) notify the Sellers promptly, and (if requested by
any such Person) confirm such advice in writing, (1) when
the Registration Statement, the prospectus or any prospectus
supplement or post-effective amendment has been filed, and,
with respect to the Registration Statement or any
post-effective amendment, when the same has become effective,
(2) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings
for that purpose and the Purchaser shall promptly use its
reasonable best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should
be issued and (3) of the receipt by the Purchaser of any
notification with respect to the suspension of the
qualification or exemption from qualification of a
Registration Statement or any of the Acacia Shares
for offer or sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
The Purchaser may require the Sellers to furnish to the
Purchaser such information regarding themselves and the
distribution of such Acacia Shares as the Purchaser may from time
to time reasonably request in writing and such other information
as may be legally required in connection with such registration.
The Sellers agree, by their acquisition of Acacia Shares and its
acceptance of the benefits provided to it hereunder, to furnish
promptly to the Purchaser all information required to be
disclosed in order to make any previously furnished information
not materially misleading.
The Sellers agree, in connection with any disposition of
Acacia Shares, to comply with all applicable prospectus delivery
requirements of the Commission. The Sellers further agree that
upon receipt of any notice from the Purchaser of the happening of
any event of the kind described herein requiring the cessation of
the distribution of a prospectus or the distribution of a
supplemented or amended prospectus, the Sellers will forthwith
discontinue disposition of Acacia Shares pursuant to the
Registration Statement covering such Acacia Shares until the
Sellers' receipt of the copies of the supplemented or amended
prospectus contemplated by this Agreement, or until it is advised
in writing by the Purchaser that the use of the prospectus may be
resumed, and, if so directed by the Purchaser, the Sellers will
deliver to the Purchaser (at the Purchaser's expense) all copies,
other than permanent file copies then in the Sellers' possession,
of the prospectus covering such Acacia Shares current at the time
of receipt of such notice.
(e) Registration Expenses. All expenses incident to the
Purchaser's performance of or compliance with the registration of
shares pursuant to this Agreement, including, without limitation,
all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and
disbursements of counsel of the Purchaser in connection with
"blue sky" qualifications of the Acacia Shares), fees and
expenses associated with filings required to be made with the
National Association of Securities Dealers, Inc., and with
listing on any national securities exchange or exchanges in which
listing may be sought, printing expenses, messenger and delivery
expenses, fees and expenses of counsel for the Purchaser and its
independent certified public accountants, securities acts
liability insurance (if the Purchaser elects to obtain such
insurance), the fees and expenses of any special experts retained
by the Purchaser in connection with such registration, and fees
and expenses of other persons retained by the Purchaser (all such
expenses being herein called "Registration Expenses") will be
borne by the Purchaser; provided that in no event shall
Registration Expenses payable by the Purchaser include any (i)
underwriting discounts, commissions, or fees attributable to the
sale of Acacia Shares, (ii) fees and expenses of any counsel,
accountants, or other persons retained or employed by the
Sellers, or (iii) transfer fees, if any.
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ARTICLE 5
DEFINITIONS
5.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of
the terms defined):
"Agreement" means this Common Stock Purchase Agreement,
including all Exhibits and Schedules, as from time to time
amended and in effect between the parties hereto.
"Closing" shall have the meaning assigned to that term
in Section 1.2 of this Agreement.
"Common Stock" means Soundview's Common Stock, $.001
par value.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, or any similar federal statute, and the rules
and regulations of the Securities and Exchange Commission (or of
any other Federal agency then administering the Exchange Act)
thereunder, all as the same shall be in effect at the time.
"Patent" means United States patent number 4,554,584.
"Person" means an individual, corporation, partnership,
joint venture, trust, or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Pledge Agreements" means the Pledge Agreements, each
dated as of the date hereof, between Purchaser, on the one hand,
and each of Xxxxxx and Xxxxxxx, on the other hand, in the form
set forth in Exhibit A.
"Purchaser" means Acacia Research Corporation, a
California corporation, and its successors and assigns.
"Registration Statement" means the registration
statement or comparable document under Securities Act through
which a public sale or disposition of the Acacia Shares may be
registered, including the prospectus, amendments and supplements
to such registration statement, all exhibits, and all material
incorporated by reference or deemed to be incorporated by
reference in such Registration Statement.
"Securities Act" means the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and
regulations of the Securities and Exchange Commission (or of any
other Federal agency then administering the Securities Act)
thereunder, all as the same shall be in effect at the time.
"Soundview" means Soundview Technologies Incorporated,
a Delaware corporation, and its successors and assigns.
"Soundview Shares" shall have the meaning assigned to
that term in Section 1.1 of this Agreement.
"Stockholders' Agreement" means the Stockholders'
Agreement, dated as of the date hereof, among Soundview, the
Sellers and Purchaser, in the form set forth in Exhibit B.
"Subsidiary" or "Subsidiaries" means any corporation,
50% or more of the outstanding voting stock of which shall at the
time be owned by Soundview or by one or more Subsidiaries, or any
other entity or enterprise, 50% or more of the equity of which
shall at the time be owned by Soundview or by one or more
Subsidiaries.
ARTICLE 6
MISCELLANEOUS
6.1 No Waiver; Cumulative Remedies. No failure or delay
on the part of Purchaser in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The remedies herein
provided are cumulative and not exclusive of any remedies
provided by law.
6.2 Amendments, Waivers and Consents. Any provision in
this Agreement to the contrary notwithstanding, no changes in or
additions to this Agreement may be made, and compliance with any
covenant or provision herein set forth may not be omitted or
waived, without the prior written consent of the parties. Any
waiver or consent may be given subject to satisfaction of
conditions stated therein and any waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given.
6.3 Addresses for Notices, etc. All notices, requests,
demands and other communications provided for hereunder shall be
in writing (including telegraphic communication) and mailed, by
certified or registered mail, or telegraphed or delivered to the
applicable party at the addresses indicated below:
If to Purchaser:
Acacia Research Corporation
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx, President
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: D. Xxxxxxx Xxxxxx, Esq.
If to Xxxxxxx:
Xxxxx X. Xxxxxxx
Two Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
If to Xxxxxx:
H. Xxx Xxxxxx
Two Soundview Drive
Greenwich, Connecticut 06830
with a copy to:
Finn, Dixon & Xxxxxxx LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
6.4 Costs, Expenses and Taxes. Each party shall pay its
own fees in connection with the investigation, preparation,
execution and delivery of this Agreement and other instruments
and documents to be delivered hereunder and the transactions
contemplated hereby and thereby. In addition, Sellers shall pay
any and all material stamp and other taxes payable or determined
to be payable by Sellers in connection with the execution and
delivery of this Agreement and other instruments and documents to
be delivered hereunder or thereunder, and agrees to save
Purchaser harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to
pay such taxes and filing fees. In the event of any controversy,
claim or dispute among the parties hereto arising out of or
relating to this Agreement, or any breach hereof, the prevailing
party shall be entitled to recover from the losing party
reasonable attorney's fees, expenses and costs.
6.5 Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the Sellers and the
Purchaser and their respective successors and assigns.
6.6 Survival of Representations and Warranties. All
representations and warranties made in this Agreement or any
other instrument or document delivered in connection herewith or
therewith, shall survive the execution and delivery hereof or
thereof for a period of three (3) years from the date of this
Agreement.
6.7 Prior Agreements. This Agreement constitutes the
entire agreement between the parties and supersedes any prior
understandings or agreements concerning the subject matter
hereof.
6.8 Severability. The invalidity or unenforceability of
any provision hereto shall in no way affect the validity or
enforceability of any other provision.
6.9 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of
California.
6.10 Headings. Article, Section and subsection headings in
this Agreement are included herein for convenience of reference
only and shall not constitute a part of this Agreement for any
other purpose.
6.11 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall
constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such
counterpart.
6.12 Further Assurances. From and after the date of this
Agreement, upon the reasonable request of Purchaser, the Sellers
shall execute and deliver such instruments, documents and other
writings as may be reasonably necessary or desirable to confirm
and carry out and to effectuate fully the intent and purposes of
this Agreement and the transactions contemplated hereby.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT INTENTIONALLY BLANK.]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
ACACIA RESEARCH CORPORATION
By: /s/ XXXXXXX XXXX-XXX XXX
Xxxxxxx Xxxx-Xxx Xxx
Chief Operating Officer
/s/ H. XXX XXXXXX
H. XXX XXXXXX, Individually
/s/ XXXXX X. XXXXXXX
XXXXX X. XXXXXXX, Individually
