SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
This
Securities Purchase Agreement (this “Agreement”)
is
made as of the date set forth below between Acacia Research Corporation, a
Delaware corporation (the “Company”),
and
the undersigned (the “Investor”),
as
follows:
1. The
Company has authorized the sale and issuance to certain investors of up to
7,457,627 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 1.5 Shares of Common Stock (and the fractional amount being the
“Warrant
Ratio”)
at an
exercise price of Fifty-five Cents (55¢) per share, 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 Seventy-three and 75/100 Cents (73.75¢) 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.”
2. The
offering and sale of the Securities (the “Offering”)
is
being made pursuant to the Base Prospectus (defined below) and the exhibits
thereto and the documents incorporated therein by reference 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 (defined below) 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
3. At
the
Closing (defined below), 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 this Agreement (the
“Signature
Page”)
for
the aggregate purchase price therefor set forth on the Signature
Page.
4. The
Company proposes to enter into substantially this same form of Securities
Purchase 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 $5,500,000. The Investor and the Other Investors are hereinafter
sometimes collectively referred to as the “Investors,”
and
this Agreement and the Securities Purchase Agreement executed by the Other
Investors are hereinafter sometimes collectively referred to as the
“Agreements.”
5. 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”),
CombiMatrix Corporation shall file 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 5. 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.
5.1 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.
5.2 CombiMatrix
Corporation shall 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 CombiMatrix Corporation shall 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.
5.3 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 5.3 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.
5.4 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).
6. 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 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.
7. The
Company represents and warrants to the Investor as of the date hereof and as
of
the Closing Date, as follows:
(a) Registration
Statement.
The
Company has prepared and filed in conformity with the requirements of the
Securities Act of 1933, as amended (the “Securities
Act”),
and
published rules and regulations thereunder (the “Rules
and Regulations”)
adopted by the Commission a “shelf” Registration Statement (as hereinafter
defined) on Form S-3 (No. 333-133529), which was declared by the Commission
to
be effective under the Securities Act as of May 26, 2006 (the “Effective
Date”),
including a Base Prospectus, dated as of the Effective Date, relating to the
Securities (the “Base
Prospectus”),
and
such amendments and supplements thereto as may have been required to the date
of
this Agreement. The Company will next file with the Commission pursuant to
Rule
424(b) under the Securities Act a final prospectus supplement to the Base
Prospectus (a “Prospectus
Supplement”)
describing the Units and the offering thereof, in such form as has been provided
to the Investor.
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The
term
“Registration
Statement”
as used
in this Agreement means the registration statement (including all exhibits,
financial schedules and all documents and information deemed to be a part of
the
Registration Statement pursuant to Rule 430A or 434(d) under the Securities
Act), as of the Effective Date and as amended and/or supplemented to the date
of
this Agreement. The Registration Statement has been declared effective under
the
Securities Act and no stop order preventing or suspending the effectiveness
of
the Registration Statement or suspending or preventing the use of the Prospectus
(as defined below) has been issued by the Commission and no proceedings for
that
purpose have been instituted or, to the Company’s knowledge, are contemplated by
the Commission.
The
term
“Prospectus”
as used
in this Agreement means the Base Prospectus together with the Prospectus
Supplement, except that if such Base Prospectus is amended or supplemented
prior
to the date on which the Prospectus Supplement was first filed pursuant to
Rule
424, the term “Prospectus”
shall
refer to the Base Prospectus as so amended or supplemented and as supplemented
by the Prospectus Supplement. Any reference herein to the Registration
Statement, the Base Prospectus, any Prospectus Supplement or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 (the “Incorporated
Documents”),
which
were filed under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”)
and
any reference herein to the terms “amend,” “amendment,” or “supplement” with
respect to the Registration Statement, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include (i) the filing of any
document under the Exchange Act after the Effective Date, or the date of the
Prospectus, as the case may be, which is incorporated by reference and (ii)
any
such document so filed. If the Company has filed an abbreviated registration
statement to register additional Securities pursuant to Rule 462(b) under the
Rules (the “462(b)
Registration Statement”),
then any
reference herein to the Registration Statement shall also be deemed to include
such 462(b) Registration Statement.
(b) Registration
Statement and Prospectus.
On the
Effective Date, upon the filing or first delivery to the Investors of the
Prospectus, as of the date hereof, and at the Closing Date, the Registration
Statement (and any post-effective amendment thereto) and the Prospectus (as
amended or as supplemented if the Company shall have filed with the Commission
any amendment or supplement to the Registration Statement or the Prospectus)
complied and will comply, in all material respects, with the requirements of
the
Securities Act and the Rules and Regulations and the Exchange Act and the rules
and regulations of the Commission thereunder and did not at the Effective Date,
does not as of the date hereof and will not as of the Closing Date, contain
any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein (in
light of the circumstances under which they were made, in the case of the
Prospectus) not misleading. Notwithstanding the foregoing, none of the
representations and warranties in this paragraph 7(b) shall apply to statements
in, or omissions from, the Registration Statement or the Prospectus, or any
amendment or supplement thereto made in reliance upon, and in conformity with,
information herein or otherwise furnished in writing by or on behalf of any
Investor to the Company expressly for use in the Registration Statement or
the
Prospectus or any amendment or supplement thereto. The Incorporated Documents,
at the time they became effective or were filed with the Commission, complied
in
all material respects with the requirements of the Exchange Act and did not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Company has not distributed and will not distribute, prior
to
the completion of the distribution of the Securities, any offering material
in
connection with the offering and sale of the Securities, other than the
Registration Statement and the Prospectus.
(c) Subsidiaries.
The
Company has no significant subsidiaries (as such term is defined in Rule 1-02
of
Regulation S-X promulgated by the Commission) other than as listed in
Schedule
I
attached
hereto (collectively, the “Subsidiaries”).
All
of the issued and outstanding shares of capital stock of each of the
Subsidiaries have been duly and validly authorized and issued and are fully
paid, nonassessable and free of preemptive and similar rights to subscribe
for
or purchase securities, and, except as listed on Schedule
I
attached
hereto or otherwise described in the Registration Statement and Prospectus,
the
Company owns directly or indirectly, free and clear of any security interests,
claims, liens, proxies, equities or other encumbrances, all of the issued and
outstanding shares of such stock.
-3-
(d) Financial
Statements.
The
consolidated financial statements of the Company, together with the related
schedules and notes thereto, set forth or incorporated by reference in the
Registration Statement and the Prospectus comply in all material respects with
the applicable requirements of the Securities Act and the Exchange Act, as
applicable, and fairly present, in all material respects, (i) the consolidated
financial condition of the Company and its Subsidiaries as of the dates
indicated and (ii) the consolidated results of operations, stockholders’ equity
and changes in cash flows of the Company and the Subsidiaries for the periods
therein specified; and such financial statements and related schedules and
notes
thereto, comply, in all material respects, as to form with the applicable
accounting requirements under the Securities Act and have been prepared in
conformity with United States generally accepted accounting principles,
consistently applied throughout the periods involved (except as otherwise stated
therein and subject, in the case of unaudited financial statements, to the
absence of footnotes and normal year-end adjustments). No other financial
statements or schedules are required by the Securities Act and the Rules and
Regulations to be included in the Registration Statement or
Prospectus.
(e) Independent
Accountants.
PricewaterhouseCoopers, LLP (the “Auditors”),
whose
report with respect to the audited consolidated financial statements and
schedules of the Company and its Subsidiaries included in the Prospectus, or
the
Registration Statement, or incorporated by reference therein is, and during
the
periods covered by its reports, was an independent public accounting firm within
the meaning of the Securities Act and the Rules and Regulations.
(f) Organization.
Each of
the Company and its Subsidiaries has been duly incorporated or otherwise
organized and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation or organization (as applicable).
Each
of the Company and its Subsidiaries has full corporate power and authority
to
own, lease and operate its properties and assets and to conduct its business
as
described in the Registration Statement and Prospectus, and is duly qualified
to
do business as a foreign corporation and is in good standing in each
jurisdiction in which it owns or leases real property or in which the conduct
of
its business makes such qualification necessary, except where the failure to
be
so qualified or be in good standing, as the case may be, would not, individually
or in the aggregate, have or reasonably be expected to result in, a material
adverse effect upon the business, prospects, properties, operations, condition
(financial or otherwise) or results of operations of the Company and its
Subsidiaries, taken as a whole (a “Material
Adverse Effect”).
(g) No
Material Adverse Effect.
Except
as set forth in the Registration Statement or the Prospectus, subsequent to
the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been (i) any material adverse change in the
business, properties, management, financial condition or results of operations
of the Company and its subsidiaries taken as a whole, including any material
loss or interference with its respective business from fire, explosion, flood
or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, (ii) any transaction that
is
material to the Company and its Subsidiaries taken as a whole, (iii) any
obligation, direct or contingent (including any off balance sheet obligations),
incurred by the Company or its Subsidiaries, which is material to the Company
and its Subsidiaries taken as a whole, (iv) any change in the capital stock
or
outstanding indebtedness of the Company or its Subsidiaries (subject to the
issuance of shares of Common Stock upon exercise of stock options or warrants
disclosed as outstanding in the Registration Statement and Prospectus and the
grant of options under existing stock option plans described in the Registration
Statement and Prospectus) or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company.
(h) Legal
Proceedings.
Except
as set forth in the Registration Statement and the Prospectus, there is not
pending or, to the knowledge of the Company, threatened or contemplated, any
action, suit or proceeding to which the Company or any of its Subsidiaries
is a
party or of which any property or assets of the Company or any of its
Subsidiaries is the subject before or by any court or governmental agency,
authority or body, or any arbitrator, which, individually or in the aggregate,
would reasonably be expected to result in any Material Adverse Effect or
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement and the Securities Purchase
Agreements.
(i) Sufficiency
of Disclosure.
There
are (i) no current or pending legal, governmental or regulatory actions, suits
or proceedings that are required under the Securities Act to be described in
the
Registration Statement and Prospectus that have not been so described and (ii)
there are no affiliate transactions, off-balance sheet transactions, contracts,
licenses, agreements, leases or other documents of a character required to
be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed as
required.
(j) Due
Authorization and Enforceability.
The
Company has full legal power and authority to enter into this Agreement and
the
Securities Purchase Agreements and to consummate the transactions contemplated
hereby and thereby. This Agreement and each of the Securities Purchase
Agreements have been duly authorized, executed and delivered by the Company,
and
constitute valid, legal and binding obligations of the Company, enforceable
in
accordance with their terms, except as rights to indemnity hereunder may be
limited by applicable laws and except as such enforceability may be limited
by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the
rights and remedies of creditors generally or subject to general principles
of
equity.
-4-
(k) The
Shares.
The
Shares have been duly and validly authorized by the Company and, when issued,
delivered and paid for in accordance with the terms of this Agreement, will
have
been duly and validly issued and will be fully paid and nonassessable; and
the
capital stock of the Company, including the AR-CombiMatrix Common Stock,
conforms to the description thereof in the Registration Statement and
Prospectus. Except as otherwise stated in the Registration Statement and
Prospectus, there are no preemptive rights or other rights to subscribe for
or
to purchase, or any restriction upon the voting or transfer of, any shares
of AR
-CombiMatrix Common Stock pursuant to the Company’s charter, bylaws or any
agreement or other instrument to which the Company is a party or by which the
Company is bound that have not been waived or complied with.
(l) The
Warrants.
The
Company has the full right, power and authority to enter into the Warrants
and
to perform and discharge its obligations thereunder. The Warrants have been
duly
and validly authorized by the Company and upon delivery to the Investors at
the
Closing Date will be duly issued and will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their terms, except
as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights and remedies of creditors
generally or subject to general principles of equity. The Warrant Shares have
been duly authorized and reserved for issuance upon the exercise of the Warrants
and when issued upon payment of the exercise price therefor will be validly
issued, fully paid and nonassessable.
(m) No
Conflicts.
The
execution, delivery and performance by the Company of this Agreement, the
Warrants, and each of the Securities Purchase Agreements and the consummation
of
the transactions herein and therein contemplated, including the issuance and
sale of the Securities, will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default (or
an
event which with notice or lapse of time or both would constitute a default)
under, or require any consent or waiver under, or result in the execution of
any
lien, charge or encumbrance upon any properties or assets of the Company or
its
Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any
of
its Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound or to which any of the property or assets of the Company or any of
its
Subsidiaries is subject, (ii) result in any violation of the provisions of
the
charter or by-laws of the Company or any of its Subsidiaries or (iii) result
in
any violation of any franchise, license, permit, statute, law, rule or
regulation applicable to the Company or any judgment, order or decree of any
court or governmental agency or body having jurisdiction over the Company or
any
of its Subsidiaries or any of their properties or assets, except, in the case
of
each of clauses (i) and (iii) above, for any such conflict, breach, violation,
default, lien, charge or encumbrance that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect.
(n) No
Consents Required.
No
consent, approval, authorization, filing with or order of or registration with,
any court or governmental agency or body, or approval of the shareholders of
the
Company, is required for the execution, delivery and performance of this
Agreement, the Warrants, and each of the Securities Purchase Agreements or
for
the consummation of the transactions contemplated hereby and thereby, including
the issuance or sale of the Securities by the Company, except such as have
been
obtained or made, and such as may be required under the securities, or blue
sky,
laws of any jurisdiction in connection with the offer and sale of the Units
by
the Company in the manner contemplated herein and in the Registration Statement
and the Prospectus.
(o) Capitalization.
All of
the issued and outstanding shares of capital stock of the Company, including
the
outstanding shares of AR-CombiMatrix Common Stock, are duly authorized and
validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, were not issued in violation of
or
subject to any preemptive rights or other rights to subscribe for or purchase
securities that have not been waived in writing. As of the date hereof and
as of
the Closing Date, the Company has or will have, as the case may be, an
authorized, issued and outstanding capitalization as is set forth in the
Registration Statement and the Prospectus (subject, in each case, to the
issuance of shares of Common Stock upon exercise of stock options and warrants
disclosed as outstanding in the Registration Statement and the Prospectus and
grant of options under existing stock option plans described in the Registration
Statement and the Prospectus, and such authorized capital stock conforms to
the
description thereof set forth in the Registration Statement and the Prospectus.
Except as described in the Registration Statement and the Prospectus, as of
the
date referred to therein, the Company did not have outstanding any options,
warrants, agreements, contracts or other rights in existence to purchase or
acquire from the Company or any Subsidiary of the Company any shares of the
capital stock of the Company or any Subsidiary of the Company.
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(p) Title
to Real and Personal Property.
The
Company and each of its Subsidiaries has good and valid title to all property
(whether real or personal) described in the Registration Statement and
Prospectus as being owned by each of them, in each case free and clear of all
liens, claims, security interests, other encumbrances or defects except such
as
are described in the Registration Statement and the Prospectus and those that
do
not materially and adversely affect the value of such property and do not
materially interfere with the use made of such property by the Company. All
of
the property described in the Registration Statement and the Prospectus as
being
held under lease by the Company or a Subsidiary are held thereby under valid,
subsisting and enforceable leases.
(q) Title
to Intellectual Property.
The
Company and its Subsidiaries own, possess, license or have other rights to
use
all foreign and domestic patents, patent applications, trade and service marks,
trade and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, Internet domain names, know-how and
other
intellectual property, necessary for the conduct of CombiMatrix Group’s (as
defined in the Prospectus) businesses as now conducted or as proposed in the
Prospectus to be conducted (collectively, the “Intellectual
Property”).
Except as set forth in the Prospectus, (a) the Company has not received written
notice, and has no knowledge of, any rights of third parties to any such
Intellectual Property; (b) to the Company’s knowledge, there is no infringement
by third parties of any such Intellectual Property; (c) there is no pending
or,
to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging the Company’s
and its Subsidiaries’ rights in or to any such Intellectual Property; (d) there
is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such
Intellectual Property; (e) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others that CombiMatrix Group
infringes or otherwise violates any patent, trademark, copyright, trade secret
or other proprietary rights of others; (f) to the Company’s knowledge, there is
no third-party U.S. patent or published U.S. patent application which contains
claims for which an Interference Proceeding (as defined in 35 U.S.C. § 135) has
been commenced against any patent or patent application which constitutes the
Intellectual Property described in the Prospectus; and (g) the CombiMatrix
Group
has taken all steps necessary to perfect its ownership of the Intellectual
Property, in each of clauses (a)-(g) except for such infringement, conflict
or
action which would not, singularly or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
(r) No
Violation or Default.
Neither
the Company nor any of its Subsidiaries is (i) in violation of any provision
of
its charter or bylaws or similar organizational documents, (ii) is in default
in
any respect, and no event has occurred which, with notice or lapse of time
or
both, would constitute such a default, in the due performance or observance
of
any term, covenant, or condition of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or by which it is
bound
or to which any of its property or assets is subject, or (iii) is in violation
in any respect of any statute, law, rule, regulation, ordinance, judgment,
order
or decree of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company, its
Subsidiaries or any of its properties of which it has knowledge, as applicable,
except, with respect to clauses (ii) and (iii), any violations or defaults
which, singularly or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect.
(s) Permits.
The
Company and each of its Subsidiaries has made all filings, applications and
submissions required by, and possesses all approvals, licenses, certificates,
certifications, clearances, consents, exemptions, marks, notifications, orders,
permits and other authorizations issued by, the appropriate federal, state
or
foreign regulatory authorities necessary to conduct its businesses as described
in the Registration Statement and the Prospectus (collectively, “Permits”),
except for such Permits the failure of which to obtain would not reasonably
be
expected to result in a Material Adverse Effect, and is in compliance with
the
terms and conditions of all such Permits; all of such Permits held by the
Company and each of its Subsidiaries are valid and in full force and effect;
there is no pending or, to its knowledge, threatened action, suit, claim or
proceeding which may cause any such Permit to be limited, revoked, cancelled,
suspended, modified or not renewed, except for such limitations, revocations,
cancellations, suspensions, modifications or non-renewals that would not
reasonably be expected to result in a Material Adverse Effect; and the Company
and each of its Subsidiaries has not received any notice of proceedings relating
to the limitation, revocation, cancellation, suspension, modification or
non-renewal of any such Permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would reasonably be expected
to
result in a Material Adverse Effect, whether or not arising from transactions
in
the ordinary course of business and has no reason to believe that any such
license, certificate, permit or authorization will not be renewed in the
ordinary course.
-6-
(t) Taxes.
The
Company and its Subsidiaries have timely filed all federal, state, local and
foreign income and franchise tax returns (or timely filed applicable extensions
therefore) required to be filed and are not in default in the payment of any
taxes which were payable pursuant to said returns or any assessments with
respect thereto, other than any which the Company or any of its Subsidiaries
is
contesting in good faith and for which adequate reserves have been
provided.
(u) Listing.
The
AR-CombiMatrix Common Stock (including the Shares and the Warrant Shares) is
registered pursuant to Section 12(g) of the Exchange Act and except for receipt
of the Nasdaq Staff Deficiency Letter dated April 23, 2007 (regarding the
failure to maintain the minimum trading price), the Company, in the two years
preceding the date hereof, has not received any notification (written or oral)
from the Nasdaq Global Market, any stock exchange, market or trading facility
on
which the AR-CombiMatrix Common Stock is or has been listed (or on which it
has
been quoted) to the effect that the Company is not in compliance with the
listing or maintenance requirements of such exchange, market or trading
facility. The Company shall comply with all requirements of the Nasdaq Global
Market with respect to the issuance of the Securities and shall use its best
efforts to have the Shares and the Warrant Shares listed on the Nasdaq Global
Market on or before the Closing Date.
(v) Internal
Controls.
The
Company and each of its Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions
are executed in accordance with management’s general or specific authorization;
(ii)
transactions
are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(w) Disclosure
Controls.
The
Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15e and 15d-15e under the Exchange Act), which
(i) are designed to ensure that material information relating to the Company
is
made known to the Company’s principal executive officer and its principal
financial officer by others within those entities, particularly during the
periods in which the periodic reports required under the Exchange Act are being
prepared; (ii) provide for the periodic evaluation of the effectiveness of
such
disclosure controls and procedures as of the end of each of the Company’s
quarterly and annual fiscal periods; and (iii), as of the end of the periods
covered by each periodic report filed under the Exchange Act and incorporated
by
reference into the Prospectus, were effective in all material respects to
perform the functions for which they were established. The Company’s auditors
and the Audit Committee of the Board of Directors have been advised of (i)
any
significant deficiency in the design or operation of internal controls which
could adversely affect the Company’s ability to record, process, summarize and
report financial data or any material weaknesses in internal controls; or (ii)
any fraud, whether or not material, that involves management or other employees
who have a significant role in the Company’s internal controls. Since the date
of the most recent evaluation of such disclosure controls and procedures, there
have been no changes that have materially affected, or are reasonably likely
to
materially affect, the Company’s internal control over financial reporting,
including any corrective actions with regard to significant deficiencies and
material weaknesses.
(x) No
Undisclosed Relationships.
No
relationship, direct or indirect, exists between or among the Company on the
one
hand and the directors, officers, stockholders, customers or suppliers of the
Company on the other hand which is required to be described in the Prospectus
and which is not so described.
(y) No
Registration Rights.
Except
as described in the Prospectus, no person or entity has the right, contractual
or otherwise, to require registration of shares of AR-CombiMatrix Common Stock
or other securities of the Company because of the filing or effectiveness of
the
Registration Statement or otherwise, except for persons and entities who have
expressly waived such right or who have been given proper notice and have failed
to exercise such right within the time or times required under the terms and
conditions of such right, and the Company is not required to file any
registration statement for the registration of any securities of any person
or
register any such securities pursuant to any other registration statement filed
by the Company under the Securities Act for a period of at least 180 days after
the Effective Date.
(z) Xxxxxxxx-Xxxxx
Act.
The
principal executive officer and principal financial officer of the Company
have
made all certifications required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations promulgated in connection therewith
(the “Sarbanes:Oxley
Act”)
with
respect to all reports, schedules, forms, statements and other documents
required to be filed by it with the Commission, and the statements contained
in
any such certification are complete and correct.
The
Company, and to its knowledge after due inquiry, all of the Company’s directors
or officers, in their capacities as such, is in compliance in all material
respects with all applicable effective provisions of the Xxxxxxxx-Xxxxx Act
(and
intends to comply with all applicable provisions that are not yet effective
upon
effectiveness).
-7-
(aa) Compliance
with Environmental Laws.
(i) The
Company and each of its Subsidiaries is in compliance in all material respects
with all rules, laws and regulation relating to the use, treatment, storage
and
disposal of toxic substances and protection of human health and safety or the
environment (“Environmental
Laws”)
which
are applicable to its business, except where the failure to comply would not
reasonably be expected to result in a Material Adverse Effect; (ii) neither
the
Company nor its Subsidiaries has received any written notice from any
governmental authority or third party of an asserted claim under Environmental
Laws; (iii) the Company and each of its Subsidiaries has received all material
permits, licenses or other approvals required of it under applicable
Environmental Laws to conduct its business and is in compliance with all
material terms and conditions of any such permit, license or approval, except
where the failure to receive or comply would not reasonably be expected to
result in a Material Adverse Effect; (iv) to the Company’s knowledge after
reasonable due inquiry, no facts currently exist that will require the Company
or any of its Subsidiaries to make future material capital expenditures to
comply with Environmental Laws; and (v) no property which is or has been owned,
leased or occupied by the Company or its Subsidiaries has been designated as
a
Superfund site pursuant to the Comprehensive Environmental Response,
Compensation of Liability Act of 1980, as amended (42 U.S.C. Section 9601,
et.
seq,) (“CERCLA”)
or
otherwise designated as a contaminated site under applicable state or local
law.
Neither the Company nor any of its Subsidiaries has been named as a “potentially
responsible party” under CERCLA.
(bb) Compliance
with ERISA.
Each of
the Company and its Subsidiaries has fulfilled its obligations, if any, under
the minimum funding standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee
Retirement Income Security Act of 1974 (“ERISA”)
and
the regulations and published interpretations thereunder with respect to each
“plan”
(as
defined in Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company and its Subsidiaries are
eligible to participate and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such regulations
and published interpretations. No “prohibited
transaction”
(as
defined in Section 406 of ERISA, or Section 4975 of the Internal Revenue Code
of
1986, as amended from time to time (the “Code”))
has
occurred with respect to any employee benefit plan which could reasonably be
expected to result in a Material Adverse Effect. The Company and each of its
Subsidiaries has not incurred any unpaid liability to the Pension Benefit
Guaranty Corporation (other than for the payment of premiums in the ordinary
course) or to any such plan under Title IV of ERISA,
(cc) No
Labor Disputes.
No
labor problem or dispute with the employees of the Company or any of its
Subsidiaries exists or, to the Company’s knowledge, is threatened or imminent,
which would reasonably be expected to result in a Material Adverse Effect.
The
Company is not aware that any key employee or significant group of employees
of
the Company or any of its Subsidiaries plans to terminate employment with the
Company or any such Subsidiary.
(dd) Insurance.
The
Company and each of its Subsidiaries is insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts
as
are prudent and customary in the businesses in which they are engaged or propose
to engage after giving effect to the transactions described in the Prospectus;
all policies of insurance and fidelity or surety bonds insuring the Company
and
each of its Subsidiaries and their businesses, assets, employees, officers
and
directors are in full force and effect; the Company and each of its Subsidiaries
is in compliance with the terms of such policies and instruments in all material
respects; and the Company and each of its Subsidiaries has no reason to believe
that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as
may
be necessary to continue its business at a cost that is not materially greater
than the current cost, except where the failure to obtain would not reasonably
be expected to result in a Material Adverse Effect.
(ee) No
Stabilization.
Neither
the Company nor any of its Subsidiaries nor, to its knowledge after reasonable
due inquiry, any of their officers, directors, affiliates or controlling persons
has taken or will take, directly or indirectly, any action designed or intended
to stabilize or manipulate the price of any security of the
Company.
(ff) Investment
Company Act.
Neither
the Company nor any of its Subsidiaries is or, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus, will be required to register as an “investment
company” as defined in the Investment Company Act of 1940, as
amended.
-8-
(gg) No
Broker’s Fees.
Neither
the Company nor any of its Subsidiaries is a party to any contract, agreement
or
understanding with any person (other than this Agreement) that would give rise
to a valid claim against the Company or its Subsidiaries for a brokerage
commission, finder’s fee or like payment in connection with the offering and
sale of the Securities.
(hh) Contracts.
Each
description of a contract, document or other agreement in the Registration
Statement and the Prospectus accurately reflects in all material respects the
terms of the underlying contract, document or other agreement. Each contract,
document or other agreement described in the Registration Statement and
Prospectus or listed in the exhibits to the Registration Statement or
incorporated therein by reference is in full force and effect, unless validly
terminated in accordance with the provisions thereof, and is valid and
enforceable by and against the Company or its Subsidiary, as the case may be,
in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the
rights and remedies of creditors generally and subject to general principles
of
equity, Neither the Company nor any of its Subsidiaries, if a Subsidiary is
a
party, nor to the Company’s knowledge, any other party, is in default in the
observance or performance of any term or obligation to be performed by it under
any such agreement, and no event has occurred which with notice or lapse of
time
or both would constitute such a default, in any such case which default or
event, individually or in the aggregate, would reasonably be expected to result
in a Material Adverse Effect.
(ii) Forward-Looking
Statements.
No
forward-looking statement (within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act) contained in the Registration Statement
and the Prospectus has been made or reaffirmed without a reasonable basis or
has
been disclosed other than in good faith.
(jj) Foreign
Corrupt Practices.
Neither
the Company nor any of its Subsidiaries, nor, to the knowledge of the Company
after reasonable due inquiry, any director, officer, agent or employee of the
Company or its Subsidiaries, has, directly or indirectly, while acting on behalf
of the Company or its Subsidiaries (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity; (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties
or
campaigns from corporate funds; (iii) violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended; (iv) made any other unlawful bribe,
rebate, payoff, influence, kickback or payment to any foreign or domestic
government official or employee.
(kk) Off-Balance
Sheet Arrangements.
There
are no material off balance sheet arrangements (as defined in Item 303 of
Regulation S-K) that have or would reasonably be likely to have a material
current or future effect on the Company’s financial condition, revenues or
expenses, changes in financial condition, results of operations, liquidity,
capital expenditures or capital resources, including those off-balance sheet
transactions described in the Commission’s Statement about Management’s
Discussion and Analysis of Financial Conditions and Results of Operations
(Release Nos 33-8056; 34-45321; FR-61), required to be described in the
Prospectus which have not been so described.
(ll) Regulatory
Filings.
Each of
the Company and its Subsidiaries has filed with the applicable regulatory
authorities all filings, declarations, listings, registrations, reports and
submissions required to be filed; all
such
filings, declarations, listings, registrations, reports or submissions were
in
compliance with applicable laws when filed and no deficiencies have been
asserted by any applicable regulatory authority with respect to any such
filings, declarations, listings, registrations, repots or submissions To the
Company’s knowledge after reasonable due inquiry, there are no affiliations or
associations between any member of the National Association of Securities
Dealers, Inc. (the “NASD”)
and
any of the Company’s officers, directors or any five percent (5%) or greater
shareholders of the Company, except as set forth in the Registration Statement
and the Prospectus or otherwise disclosed in writing to the
Investor.
8. Representations,
Warranties and Covenants of the Investor.
8.1 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.
-9-
8.2 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 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. Agents, officers and employees of the Company 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.
8.3 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.
8.4 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.
8.5 The
Investor represents, warrants and agrees that, since the earlier to occur of
(i) the date on which the Company 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.
8.6 The
Investor represents that, (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
8.7 The
Investor represents that it has received, prior to or in connection with the
receipt of this Agreement, the final Base Prospectus (defined below), 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
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 of which the Investors will be notified in advance
by the Company. 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.
-10-
9.1 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.
9.2 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
(collectively, the “Company
Closing Conditions”).
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.
10. The
executed Warrant shall be delivered in accordance with the terms thereof. The
executed Warrant shall be delivered in accordance with the terms
thereof.
11. The
manner of settlement of the Shares included in the Units purchased by the
Investor shall be by 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:
|
Mellon
Bank
Pittsburgh,
PA
ABA
#0000-0000-0
SUB
XXXX#000-0000
XXXXXXX
XXXXX, PF&S INC.
Client
name: COMBIMATRIX CORPORATION
Client
ML
account #: 68Q-07056
Such
funds shall be held by the Company until the Closing and satisfaction of the
Company Closing Conditions.
Investor
shall also furnish to the Company 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).
12. Notwithstanding
any investigation made by any party to this Agreement, 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.
13. 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:
-11-
(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.
14. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. This
Agreement shall inure to the benefit of and shall be binding upon the Investors
and the Company, and their respective successors and assigns. Nothing in this
Agreement is intended or shall be construed to give to any other person, firm
or
corporation, other than the persons, firms or corporations mentioned in the
preceding sentence, any legal or equitable remedy or claim under or in respect
of this Agreement, or any provision herein contained. The term “successors and
assigns” as herein used shall not include any purchaser by reason merely of such
purchase.
IN
WITNESS WHEREOF,
the
Investor and the Company have caused this Securities Purchase Agreement to
be
executed by its duly authorized officer as of May 4, 2007.
Number
of
Units:____________________________
Purchase
Price Per Unit: $0.7375
Aggregate
Purchase Price: $___________________
-12-
__________________________________
INVESTOR
By:_______________________________
Print
Name:_________________________
Title:______________________________
Address:___________________________
________________________________________
________________________________________
________________________________________
ACACIA
RESEARCH CORPORATION
By:_______________________________
Name:_____________________________
Title:______________________________
-13-
Exhibit
A
[FORM
OF WARRANT]
ACACIA
RESEARCH CORPORATION
WARRANT
TO PURCHASE COMMON STOCK
May
4, 2007
Void
After May 3, 2012
THIS
CERTIFIES THAT,
for
value received, [ ],
or
permitted registered assigns (the “Holder”),
is
entitled to subscribe for and purchase at the Exercise Price (defined below)
from Acacia
Research Corporation,
a
Delaware corporation (the
“Company”),
up to
[ ]
shares
of
the Company’s Acacia Research-CombiMatrix common stock, par value $0.001 per
share (the “Common
Stock”).
1. DEFINITIONS.
As
used
herein, the following terms shall have the following respective
meanings:
(a) “Exercise
Period” shall mean the period commencing on the date hereof and ending five (5)
years from the date hereof, unless sooner terminated as provided
below.
(b) “Exercise
Price” shall mean $0.55 per share, subject to adjustment pursuant to
Section 5 below.
(c) “Exercise
Shares” shall mean the shares of Common Stock issuable upon exercise of this
Warrant.
(d) “Trading
Day” shall mean
(a)
any day on which the Common Stock is listed or quoted and traded on its primary
Trading Market, (b) if the Common Stock is not then listed or quoted and traded
on any Eligible Market, then a day on which trading occurs on the OTC
Bulletin Board
(or any
successor thereto), or (c) if trading does not occur on the OTC Bulletin Board
(or any successor thereto), any Business Day.
2. EXERCISE
OF WARRANT. The
rights represented by this Warrant may be exercised in whole or in part at
any
time during the Exercise Period, by delivery of the following to the Company
at
its address set forth on the signature page hereto (or at such other address
as
it may designate by notice in writing to the Holder):
(a) An
executed Notice of Exercise in the form attached hereto;
(b) Payment
of the Exercise Price either (i) in cash or by check, (ii) by cancellation
of
indebtedness, or (iii) pursuant to Section 2.1 below; and
(c) This
Warrant.
The
Holder shall not be required to deliver the original Warrant in order to effect
the exercise hereunder. Execution and delivery of the Notice of Exercise shall
have the same effect as cancellation of the original Warrant and issuance of
a
new Warrant evidencing the right to purchase the remaining number of Exercise
Shares.
Certificates
for shares purchased hereunder shall be transmitted by the transfer agent of
the
Company to the Holder by crediting the account of the Holder’s prime broker with
the Depository Trust Company through its Deposit Withdrawal Agent
Commission system if the Company is a participant in such system, and otherwise
by physical delivery to the address specified by the Holder in the Notice of
Exercise within three business days from the delivery to the Company of the
Notice of Exercise, surrender of this Warrant and payment of the aggregate
Exercise Price as set forth above. This Warrant shall be deemed to have
been exercised on the date the Exercise Price is received by the Company.
The Exercise Shares shall be deemed to have been issued, and Holder or any
other
person so designated to be named therein shall be deemed to have become a holder
of record of such shares for all purposes, as of the date the Warrant has been
exercised by payment to the Company of the Exercise Price.
-1-
In
addition to any other rights available to the Holder, if the Company fails
to
deliver to the Holder a certificate representing Exercise Shares by the third
Trading Day after the date on which delivery of such certificate is required
by
this Warrant, and if after such third Trading Day the Holder purchases (in
an
open market transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of the Warrant Shares that the Holder
anticipated receiving from the Company (a “Buy-In”),
then
in the Holder’s sole discretion, the Company shall within three Trading Days
after the Holder’s request, either (i) pay cash to the Holder in an amount equal
to the Holder’s total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased less the Exercise Price (the
“Buy-In
Price”),
at
which point the Company’s obligation to deliver such certificate (and to issue
such Common Stock) shall terminate, or (ii) promptly honor its obligation to
deliver to the Holder a certificate or certificates representing such Common
Stock and pay cash to the Holder in an amount equal to the excess (if any)
of
the Buy-In Price over the product of (A) such number of shares of Common Stock,
times (B) the Closing Price on the date of the event giving rise to the
Company’s obligation to deliver such certificate.
The
person in whose name any certificate or certificates for Exercise Shares are
to
be issued upon exercise of this Warrant shall be deemed to have become the
holder of record of such shares on the date on which this Warrant was
surrendered and payment of the Exercise Price was made, irrespective of the
date
of delivery of such certificate or certificates, except that, if the date of
such surrender and payment is a date when the stock transfer books of the
Company are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
To
the
extent permitted by law, the Company’s obligations to issue and deliver Exercise
Shares in accordance with the terms hereof are absolute and unconditional,
irrespective of any action or inaction by the Holder to enforce the same, any
waiver or consent with respect to any provision hereof, the recovery of any
judgment against any person or entity or any action to enforce the same, or
any
setoff, counterclaim, recoupment, limitation or termination, or any breach
or
alleged breach by the Holder or any other person or entity of any obligation
to
the Company or any violation or alleged violation of law by the Holder or any
other person or entity, and irrespective of any other circumstance which might
otherwise limit such obligation of the Company to the Holder in connection
with
the issuance of Exercise Shares. Nothing herein shall limit a Holder’s right to
pursue any other remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of the Warrant
as
required pursuant to the terms hereof.
This
Warrant shall be non-callable.
2.1. Net
Exercise.
If
during the Exercise Period, the fair market value of one share of the Common
Stock is greater than the Exercise Price (at the date of calculation as set
forth below), in lieu of exercising this Warrant by payment of cash or by check,
or by cancellation of indebtedness, the Holder may elect to receive shares
equal
to the value (as determined below) of this Warrant (or the portion thereof
being
canceled) by surrender of this Warrant at the principal office of the Company
together with the properly endorsed Notice of Exercise in which event the
Company shall issue to the Holder a number of shares of Common Stock computed
using the following formula:
X
=
Y
(A-B)
A
Where
X =
the number of shares of Common Stock to be issued to the Holder
| Y = |
the
number of shares of Common Stock purchasable under the Warrant or,
if only
a portion of the Warrant is being exercised, the portion of the Warrant
being canceled (at the date of such
calculation)
|
|
A
=
|
the
fair market value of one share of the Company’s Common Stock (at the date
of such calculation)
|
|
B
=
|
Exercise
Price (as adjusted to the date of such
calculation)
|
For
purposes of the above calculation, the “fair market value” of one share of
Common Stock shall mean (i) the average of the closing sales prices for the
shares of Common Stock 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 the Company
and reasonably acceptable to the Holder 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 shares of
Common Stock, the average of the reported sales prices reported by Bloomberg
on
the principal trading market for the Common Stock 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 the Company in the exercise
of its good faith judgment.
-2-
2.2. Issuance
of New Warrants.
Upon any partial exercise of this Warrant, the Company, at its expense, will
forthwith and, in any event within five business days, issue and deliver to
the
Holder a new warrant or warrants of like tenor, registered in the name of the
Holder, exercisable, in the aggregate, for the balance of the number of shares
of Common Stock remaining available for purchase under the Warrant.
2.3. Payment
of Taxes and Expenses.
The Company shall pay any recording, filing, stamp or similar tax which may
be
payable in respect of any transfer involved in the issuance of, and the
preparation and delivery of certificates (if applicable) representing, (i)
any
Exercise Shares purchased upon exercise of this Warrant and/or (ii) new or
replacement warrants in the Holder’s name or the name of any transferee of all
or any portion of this Warrant.
2.4. Exercise
Limitations; Holder’s Restrictions.
A
Holder shall not have the right to exercise any portion of this Warrant,
pursuant to Section 2 or otherwise, to the extent that after giving effect
to
such issuance after exercise, such Holder (together with such Holder’s
affiliates), as set forth on the applicable Notice of Exercise, would
beneficially own in excess of 4.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to such issuance. For purposes
of
the foregoing sentence, the number of shares of Common Stock beneficially owned
by such Holder and its affiliates shall include the number of shares of Common
Stock issuable upon exercise of this Warrant with respect to which the
determination of such sentence is being made, but shall exclude the number
of
shares of Common Stock which would be issuable upon (A) exercise of the
remaining, nonexercised portion of this Warrant beneficially owned by such
Holder or any of its affiliates and (B) exercise or conversion of the
unexercised or nonconverted portion of any other securities of the Company
(including, without limitation, any other shares of Common Stock or Warrants)
subject to a limitation on conversion or exercise analogous to the limitation
contained herein beneficially owned by such Holder or any of its affiliates.
Except as set forth in the preceding sentence, for purposes of this Section
2.4,
beneficial ownership shall be calculated in accordance with Section 13(d) of
the
Exchange Act, it being acknowledged by a Holder that the Company is not
representing to such Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and such Holder is solely responsible for any
schedules required to be filed in accordance therewith. To the extent that
the
limitation contained in this Section 2.4 applies, the determination of whether
this Warrant is exercisable (in relation to other securities owned by such
Holder) and of which a portion of this Warrant is exercisable shall be in the
sole discretion of a Holder, and the submission of a Notice of Exercise shall
be
deemed to be each Holder’s determination of whether this Warrant is exercisable
(in relation to other securities owned by such Holder) and of which portion
of
this Warrant is exercisable, in each case subject to such aggregate percentage
limitation, and the Company shall have no obligation to verify or confirm the
accuracy of such determination. For purposes of this Section 2.4, in determining
the number of outstanding shares of Common Stock, a Holder may rely on the
number of outstanding shares of Common Stock as reflected in (x) the Company’s
most recent Form 10-Q or Form 10-K, as the case may be, (y) a more recent public
announcement by the Company or (z) any other notice by the Company or the
Company’s Transfer Agent setting forth the number of shares of Common Stock
outstanding. Upon the written or oral request of a Holder, the Company shall
within two Trading Days confirm orally and in writing to such Holder the number
of shares of Common Stock then outstanding. In any case, the number of
outstanding shares of Common Stock shall be determined after giving effect
to
the conversion or exercise of securities of the Company, including this Warrant,
by such Holder or its affiliates since the date as of which such number of
outstanding shares of Common Stock was reported. The provisions of this Section
2.4 may be waived by such Holder, at the election of such Holder, upon not
less
than 61 days’ prior notice to the Company, and the provisions of this Section
2.4 shall continue to apply until such 61st
day (or
such later date, as determined by such Holder, as may be specified in such
notice of waiver).
3. COVENANTS
OF THE COMPANY.
3.1. Covenants
as to Exercise Shares.
The Company covenants and agrees that all Exercise Shares that may be issued
upon the exercise of the rights represented by this Warrant will, upon issuance
in accordance with the terms hereof, be validly issued and outstanding, fully
paid and nonassessable, and free from all taxes, liens and charges with respect
to the issuance thereof. The Company further covenants and agrees that the
Company will at all times during the Exercise Period, have authorized and
reserved, free from preemptive rights, a sufficient number of shares of Common
Stock to provide for the exercise of the rights represented by this
Warrant. If at any time during the Exercise Period the number of
authorized but unissued shares of Common Stock shall not be sufficient to permit
exercise of this Warrant, the Company will take such corporate action as may,
in
the opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for
such
purposes.
-3-
3.2. No
Impairment.
Except and to the extent as waived or consented to by the Holder, the Company
will not, by amendment of its Certificate of Incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Company, but will at all times in good faith assist in the
carrying out of all the provisions of this Warrant and in the taking of all
such
action as may be necessary or appropriate in order to protect the exercise
rights of the Holder against impairment.
3.3. Notices
of Record Date and Certain Other Events.
In
the event of any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend (other than a cash dividend which is the same
as cash dividends paid in previous quarters) or other distribution, the Company
shall mail to the Holder, at least 20 days prior to the date on which any such
record is to be taken for the purpose of such dividend or distribution, a notice
specifying such date. In the event of any voluntary dissolution,
liquidation or winding up of the Company, the Company shall mail to the Holder,
at least 20 days prior to the date of the occurrence of any such event, a notice
specifying such date. In the event the Company authorizes or approves, enters
into any agreement contemplating, or solicits stockholder approval for any
Fundamental Transaction, as defined in Section 7 herein, the Company shall
mail
to the Holder, at least twenty days prior to the date of the occurrence of
such
event, a notice specifying such date.
4. [INTENTIONALLY
OMITTED]
5. ADJUSTMENT
OF
EXERCISE PRICE AND SHARES.
(a) In
the
event of changes in the outstanding Common Stock of the Company by reason of
stock dividends, split-ups, recapitalizations, reclassifications, combinations
or exchanges of shares, separations, reorganizations, liquidations,
consolidation, acquisition of the Company (whether through merger or acquisition
of substantially all the assets or stock of the Company), or the like, the
number, class and type of shares available under the Warrant in the aggregate
and the Exercise Price shall be correspondingly adjusted to give the Holder
of
the Warrant, on exercise for the same aggregate Exercise Price, the total
number, class, and type of shares or other property as the Holder would have
owned had the Warrant been exercised prior to the event and had the Holder
continued to hold such shares until the event requiring adjustment. The
form of this Warrant need not be changed because of any adjustment in the number
of Exercise Shares subject to this Warrant.
(b) If
at any
time or from time to time the holders of Common Stock of the Company (or any
shares of stock or other securities at the time receivable upon the exercise
of
this Warrant) shall have received or become entitled to receive, without payment
therefor,
(i) Common
Stock or any shares of stock or other securities which are at any time directly
or indirectly convertible into or exchangeable for Common Stock, or any rights
or options to subscribe for, purchase or otherwise acquire any of the foregoing
by way of dividend or other distribution (other than a dividend or distribution
covered in Section 5(a) above),
(ii) any
cash
paid or payable otherwise than as a cash dividend or
(iii) Common
Stock or additional stock or other securities or property (including cash)
by
way of spinoff, split-up, reclassification, combination of shares or similar
corporate rearrangement (other than shares of Common Stock pursuant to
Section 5(a) above), then and in each such case, the Holder hereof will,
upon the exercise of this Warrant, be entitled to receive, in addition to the
number of shares of Common Stock receivable thereupon, and without payment
of
any additional consideration therefor, the amount of stock and other securities
and property (including cash in the cases referred to in clauses (ii) and (iii)
above) which such Holder would hold on the date of such exercise had such Holder
been the holder of record of such Common Stock as of the date on which holders
of Common Stock received or became entitled to receive such shares or all other
additional stock and other securities and property.
-4-
(c) Upon
the
occurrence of each adjustment pursuant to this Section 5, the Company at its
expense will, at the written request of the Holder, promptly compute such
adjustment in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment, including a statement of the adjusted
Exercise Price and adjusted number or type of Exercise Shares or other
securities issuable upon exercise of this Warrant (as applicable), describing
the transactions giving rise to such adjustments and showing in detail the
facts
upon which such adjustment is based. Upon written request, the Company will
promptly deliver a copy of each such certificate to the Holder and to the
Company’s transfer agent.
6. FRACTIONAL
SHARES. No
fractional shares shall be issued upon the exercise of this Warrant as a
consequence of any adjustment pursuant hereto. All Exercise Shares
(including fractions) issuable upon exercise of this Warrant may be aggregated
for purposes of determining whether the exercise would result in the issuance
of
any fractional share. If, after aggregation, the exercise would result in
the issuance of a fractional share, the Company shall, in lieu of issuance
of
any fractional share, pay the Holder otherwise entitled to such fraction a
sum
in cash equal to the product resulting from multiplying the then current fair
market value of an Exercise Share by such fraction.
7. FUNDAMENTAL
TRANSACTIONS.
If, at any time while this Warrant is outstanding, (i) the Company effects
any
merger of the Company with or into another entity, (ii) the Company effects
any
sale of all or substantially all of its assets in one or a series of related
transactions, (iii) any tender offer or exchange offer (whether by the Company
or another individual or entity) is completed pursuant to which holders of
Common Stock are permitted to tender or exchange their shares for other
securities, cash or property or (iv) the Company effects any reclassification
of
the Common Stock or any compulsory share exchange pursuant to which the Common
Stock is effectively converted into or exchanged for other securities, cash
or
property (other than as a result of a subdivision or combination of shares
of
Common Stock covered by Section 5 above) (in any such case, a “Fundamental
Transaction”),
then,
upon any subsequent exercise of this Warrant, the Holder shall have the right
to
receive, for each Warrant Share that would have been issuable upon such exercise
immediately prior to the occurrence of such Fundamental Transaction, at the
option of the Holder, (a) upon exercise of this Warrant, the number of shares
of
Common Stock of the successor or acquiring corporation or of the Company, if
it
is the surviving corporation, and any additional consideration (the
“Alternate
Consideration”)
receivable upon or as a result of such reorganization, reclassification, merger,
consolidation or disposition of assets by a Holder of the number of shares
of
Common Stock for which this Warrant is exercisable immediately prior to such
event.
For
purposes of any such exercise, the determination of the Exercise Price shall
be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration
it
receives upon any exercise of this Warrant following such Fundamental
Transaction. To the extent necessary to effectuate the foregoing
provisions, any successor to the Company or surviving entity in such Fundamental
Transaction shall issue to the Holder a new warrant consistent with the
foregoing provisions and evidencing the Holder’s right to exercise such warrant
into Alternate Consideration. The terms of any agreement pursuant to which
a
Fundamental Transaction is effected shall include terms requiring any such
successor or surviving entity to comply with the provisions of this Section
7
and insuring that this Warrant (or any such replacement security) will be
similarly adjusted upon any subsequent transaction analogous to a Fundamental
Transaction.
8. NO
STOCKHOLDER RIGHTS. This
Warrant in and of itself shall not entitle the Holder to any voting rights
or
other rights as a stockholder of the Company.
9. TRANSFER
OF WARRANT. Subject
to applicable laws, this Warrant and all rights hereunder are transferable,
by
the Holder in person or by duly authorized attorney, upon delivery of this
Warrant and the form of assignment attached hereto to any transferee designated
by Holder.
10. LOST,
STOLEN, MUTILATED OR DESTROYED WARRANT. If
this
Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms
as to indemnity or otherwise as it may reasonably impose (which shall, in the
case of a mutilated Warrant, include the surrender thereof), issue a new Warrant
of like denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed. Any such new Warrant shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen, mutilated
or destroyed Warrant shall be at any time enforceable by anyone.
-5-
11. NOTICES,
ETC. All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified,
(b) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient, if not, then on the next business day,
(c) five days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to
the Company at the address listed on the signature page hereto and to Holder
at
the applicable address set forth on the applicable signature page to the
Subscription Agreement or at such other address as the Company or Holder may
designate by 10 days advance written notice to the other parties
hereto.
12. ACCEPTANCE.
Receipt
of this Warrant by the Holder shall constitute acceptance of and agreement
to
all of the terms and conditions contained herein.
13. GOVERNING
LAW. This
Warrant and all rights, obligations and liabilities hereunder shall be governed
by the laws of the State of New York.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-6-
IN
WITNESS WHEREOF,
the
Company has caused this Warrant to be executed by its duly authorized officer
as
of May 4, 2007.
ACACIA
RESEARCH CORPORATION
By:_______________________________
Name:_____________________________
Title:______________________________
-7-
NOTICE
OF EXERCISE
TO:
ACACIA
RESEARCH CORPORATION
(1)
ྑ The
undersigned hereby elects to purchase
shares of the
Acacia Research-CombiMatrix Common Stock (the “Common
Stock”)
of
ACACIA
RESEARCH CORPORATION (the
“Company”)
pursuant to the terms of the attached Warrant, and tenders herewith payment
of
the exercise price in full, together with all applicable transfer taxes, if
any.
ྑ The undersigned hereby elects to purchase
shares of Common
Stock of the Company pursuant to the terms of the net exercise provisions set
forth in Section 2.1 of the attached Warrant, and shall tender payment of
all applicable transfer taxes, if any.
(2) Please
issue a certificate or certificates representing said shares of Common Stock
of
the Company in the name of the undersigned or in such other name as is specified
below:
(Name)
(Address)
_____________________________
| (Date) |
(Signature)
|
_____________________________
(Print
name)
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED,
the
foregoing Warrant and all rights evidenced thereby are hereby assigned
to
| Name: |
_______________________________
|
(Please
Print)
| Address: |
_______________________________
|
(Please
Print)
Dated:
, 20___
Holder’s
Signature:
Holder’s
Address:
NOTE:
The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever. Officers of corporations and those acting in a fiduciary
or other representative capacity should file proper evidence of authority to
assign the foregoing Warrant.
Exhibit
B
ACACIA
RESEARCH CORPORATION
INVESTOR
QUESTIONNAIRE
Pursuant
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:
|
