Services Agreement - Acacia Research Corp. and Cruttenden Roth Inc.
June 30, 1997
Mr. Paul R. Ryan
Chief Executive Officer
Acacia Research Corporation
12 South Raymond Avenue
Pasadena, CA 91105
Dear Mr. Ryan:
This letter agreement (the "Agreement") will confirm the understanding between
Acacia Research Corporation ("Acacia" or the "Company") and Cruttenden Roth
Incorporated ("CRI" or the "Advisor") pursuant to which the Company has retained
CRI to act as a non-exclusive Advisor, on the terms and subject to the
conditions set forth herein, in connection with financial consulting services to
be provided to the Company by CRI in matters relating to possible merger and
acquisition transactions, capital market financings, investment opportunities,
negotiations and valuation work with companies in which Acacia holds a minority
or majority interest, investor relations, including the Company's participation
in investment conferences sponsored by CRI, and such other services as the
Company may request from time to time and CRI may agree to provide (the
"Services"). The Services shall not include any underwriting or broker-dealer
related activities, and the Company agrees to bear sole responsibility for the
negotiation, preparation, filing, amending and distribution of any offering
materials or transaction documents, in connection with any of the foregoing
investments or transactions.
RETENTION. The Company hereby retains CRI on a non-exclusive basis to act as
its financial advisor for a period of two years, subject to earlier termination
as hereafter provided, from the date hereof in connection with the Services to
be provided to the Company by CRI. CRI agrees to act as Advisor to the Company
and to perform the Services. Subject to the terms and conditions of this
Agreement, the nature and scope of the Advisor's efforts shall be limited solely
to that of Advisor to the Company on matters including but not limited to those
defined above, and within such limits CRI shall engage in such activities as it
deems appropriate and which are acceptable to the Company. CRI shall promptly
provide the Company with reports in writing, as the Company may request,
describing the services rendered by CRI each quarter during the term of this
Agreement. The Company agrees to retain its own legal counsel and accountants
for any necessary legal and tax advice, including any such services or related
services in connection with the Services to be provided by the Advisor.
COMPENSATION. In consideration of the above services the Advisor agrees to
accept, within twelve months of the date of this agreement, Warrants
representing the right to purchase a total of 100,000 shares of the Company's
Common Stock, at an exercise price equal to the fair market price per share of
the Common Stock on the date of issuance. The Warrants shall be represented by
two certificates to purchase 50,000 shares each, having the following terms (See
Exhibit A "Form of Warrant' for complete terms and conditions.)
1) Warrants at an aggregate purchase price of $500 (or $0.01 per warrant)
representing the right to purchase the first 50,000 shares of the
Company's Common Stock shall be exercisable for a period of three
years from the date of issuance, but not within the first year from
date of issuance; and
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2) Warrants at an aggregate purchase price of $500 (or $0.01 per warrant)
representing the right to purchase the second 50,000 shares of the
Company's Common Stock shall be exercisable for a period of three
years from the date of issuance, but not prior to two years from the
date of issuance, except that these Warrants shall be automatically
revoked and canceled without any action whatever by the Company if
this Agreement is terminated by either the Advisor or the Company for
any reason whatsoever prior to the expiration.
3) The Warrants shall contain a cash-less exercise option which will
permit CRI at its option, to exercise its warrants without necessarily
requiring the use of cash for the purchase of the Shares. ("Cash-less
Option"). The Cash-less Option will permit CRI, in its exercise of
the Warrants, to pay in cash or check for the shares represented by
those Warrants, to pay for the acquired shares through a reduction in
the number of shares issuable on such exercise providing the current
value of the Company's shares (as reported by the Nasdaq National
Market System) exceeds the warrant exercise price.
4)
a) If the Company, at any time after the date one year from the date
hereof and prior to the expiration date of the Warrants issued to
CRI under this Agreement proposes to register any Common Stock
with the Securities and Exchange Commission (together with any
other federal agency at the time administering the Securities
Exchange Act of 1934, as amended (the "Exchange Act') and
Securities Act of 1933, as amended, the "Commission"), other than
pursuant to a registration statement on a form exclusively for
the sale and distribution of securities by the Company to
employees of the Company or its subsidiaries or for use
exclusively in connection with a business combination, whether or
not for sale for its own account, and the registration form to be
used may be used for the shelf registration of the shares of
Common Stock issued or issuable upon exercise of a Warrant issued
pursuant to this Agreement (unless: (1) a registration statement
covering such Registrable Share has been declared effective by
the Commission, (2) such share is transferred to any person other
than the Advisor, (3) such share (after initial issuance) is held
by the Company or one of its subsidiaries or otherwise ceases to
be outstanding, or (4) the share of Common Stock may be traded
without restriction pursuant to paragraph (k) of Rule 144, if
applicable) (the "Registrable Shares"), the Company will promptly
give written notice to the Advisor of the Company's intention to
effect such a registration and include in such registration all
Registrable Shares with respect to which the Company has received
written notice from the Advisor for inclusion therein within 20
days after the date of the Company' s notice; provided that:
i) if, at any time after giving written notice of its intention
to register any shares and prior to the effective date of
the registration statement filed in connection with such
registration, the Company or its counsel determines that
pursuant to a contractual obligation with a third party the
inclusion of any Registrable Shares in such registration
statement would impede or hinder the Company in fulfilling
its contractual obligations, the Company shall temporarily
be relieved of its obligation to register any Registrable
Shares in connection with such registration;
ii) If such registration shall be in connection with an
underwritten public offering and the managing underwriter
shall advise the Company in writing that, in its opinion,
the number of shares requested to be included m such
registration exceeds the number of such securities which can
be sold in such
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offering or would have an adverse impact on the price
of such securities, the amount to be registered shall
be determined by the Company in its sole and absolute
discretion; and
iii) the number of shares to be sold by the Advisor is not
less than 10,000.
b) If any such registration described in paragraph (a) above (each a
"Piggy-Back Registration") is an underwritten primary offering,
the Advisor shall not have the right to select the managing
underwriter to administer such offering.
c) The maximum number of Piggy-Back Registrations hereunder shall be
one (1); provided, however, that in the event that the Company
offers, at its sole election, to register the Registrable Shares
at any time after the execution of this Agreement, whether or not
the Advisor elects to participate in such registration, the
Advisor shall not be entitled to any Piggy-Back Registration
hereunder.
d) The Company's obligation hereunder shall not restrict its ability
to suspend the effectiveness of, or direct the Advisor not to
offer or sell securities under, any Piggy Back Registration, at
any time, for such reasonable period of time that the Company
believes is necessary to prevent the premature disclosure of any
events or information having a material effect on the Company. In
addition, the Company shall not be required to keep a Piggy Back
Registration effective, or may, without suspending such
effectiveness, instruct the holders of Registrable Shares
included in a Piggy Back Registration not to sell such
securities, during any period during which the Company is
instructed, directed, ordered or otherwise requested by any
governmental agency.
In addition to the compensation to be paid to the Advisor as provided above, the
Company shall pay to, or on behalf of the Advisor, promptly as billed, all
reasonable out-of-pocket expenses pre approved by the Company in writing
(including all reasonable fees and expenses of Advisor's counsel, if any, and
messenger, overnight courier, fax, telephone, copying, printing, database and
travel related expenses) incurred by the Advisor in connection with the
Services.
COMPLIANCE WITH LAWS. In performing Services for the Company pursuant to this
Agreement, CRI shall comply with all applicable laws, including, but not limited
to, federal and state securities laws. CRI represents and warrants to the
Company that CRI has, or shall obtain prior to any performances of services
hereunder, any and all licenses, registrations and permits necessary for the
performance of CRI's Services pursuant to this Agreement.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company as of
the date hereof represents, warrants and agrees for CRI's benefit as follows:
This agreement is duly authorized and validly executed and delivered by the
Company, and constitutes a legal, valid and binding agreement of the Company.
In connection with the Advisor's activities hereunder, the Company agrees to
furnish the Advisor with publicly disseminated written materials, including all
reports under the Exchange Act, all publicly available press releases and all
proxy statements and other shareholder communication. In addition, the Company,
at its discretion and its prior approval of each instance, agrees to provide the
Advisor with access to the Company's accountants, counsel, consultants and other
appropriate agents and representatives.
Should CRI want to use agents or other third parties in connection with its
services to the Company, CRI will inform the Company and provide the Company
with the names of such agents
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or third parties prior to any engagement. The Company reserves the right to
review and approve in advance any such agents or third parties as well as
reserves the right not to approve such agents or third parties. CRI shall be
responsible for all such agents and third parties in their observance of the
terms of this Agreement.
CONFIDENTIALITY. Except to the extent authorized by the Company or required by
any Federal or state law, rule or regulation or any decision or order of any
court or regulatory authority, the Advisor agrees that it will refrain from
disclosing to any person, other than to agents, if any, attorneys, accountants,
employees, officers, and directors engaged by the Advisor or the Company in
connection with any Services to be provided hereunder, each and all of whom
shall have signed a confidentiality and non-disclosure agreement by the Company
or be subject to an enforceable non-disclosure obligation, any confidential
information which has not become public about the Company or its agents,
attorneys, accountants in connection with the services rendered hereunder. Any
advice rendered by CRI hereunder shall not be disclosed publicly in any manner
without CRI's written approval and will be treated by the Company and CRI as
confidential. In addition, CRI's advice is not intended for, and should not be
relied upon by, other third parties. The Company also agrees that any reference
to the Advisor or any affiliate of the Advisor in any release or communication
to any party outside the Company is subject to the Advisor's approval, which
approval shall not be unreasonably withheld or delayed. If the Advisor resigns
or is terminated prior to any release or communication, no reference shall be
made therein to the Advisor without the Advisor's prior written permission.
TERMINATION. This agreement may be terminated by the Company at any time prior
to the expiration of this Agreement upon 30 days written notice to CRI. CRI may
terminate the Agreement prior to the expiration of this agreement upon 30 days
written to the Company but only for cause, which shall mean only: (i) the
misconduct or bad faith of any of officer, director or employee of the company
with respect to the Company's performance of its duties under this agreement,
(ii) the Company's breach of any of the provisions of this Agreement or (iii)
the voluntary or involuntary bankruptcy of the Company. Unless earlier
terminated as set forth above, this Agreement shall terminate on June 30, 1999.
In either event, the Company shall continue to be liable to CRI for any unpaid
compensation earned by CRI pursuant to this Agreement together with any
reimbursable expenses incurred through the date of termination, and the
indemnity, contribution and expense reimbursement provisions contained in this
Agreement shall remain operative and in full force and effect regardless of
termination, expiration or consummation of Services.
NOTICES. Notices hereunder shall be given in writing and shall be mailed or
delivered if to the Company at:
Acacia Research Corporation
12 South Raymond Avenue
Pasadena, CA 91105
Attn: Paul Ryan
if to the Advisor at:
Cruttenden Roth, Inc.
11150 Santa Monica Blvd.
Suite 750
Los Angeles, CA 90025
Attn: Michael Doherty
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ADVERTISEMENTS. The Company agrees that the Advisor shall have the right to
place advertisements in financial and other newspapers and journals at its own
expense describing its services to the Company hereunder; provided that the
Advisor shall have submitted a copy of any such proposed advertisement to the
Company for its prior approval, which approval shall not be unreasonably
withheld or delayed.
CONSTRUCTION. The Agreement incorporates the entire understanding of the
parties and shall be governed by, and construed in accordance with, the laws of
the State of California as applied to contracts made and performed in such
State, without regard to principles of conflicts of laws.
SEVERABILITY. Any determination that any provision of this Agreement may be, or
is, unenforceable shall not affect the enforceability of the remainder of this
Agreement.
HEADINGS. The section headings in this Agreement have been inserted as a matter
of convenience for reference and are not an effective part of this Agreement.
COUNTERPARTS. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
THIRD PARTY BENEFICIARIES. This Agreement has been and is made solely for the
benefit of the Company, the Advisor and the other Indemnified Persons referred
to in this Agreement and the respective successors and assigns, and no other
person shall acquire or have any rights under or by virtue of this agreement.
SUCCESSION. This Agreement shall be binding upon and inure to the benefit of
the Company, CRI, the Indemnified Persons and their respective successors,
assigns, heirs and personal representatives.
If the foregoing terms correctly set forth our Agreement, please confirm this by
signing and returning to the Advisor the duplicate copy of this letter.
Thereupon this letter as signed in counterpart, shall constitute our Agreement
on the subject matter herein.
CRUTTENDEN ROTH INCORPORATED
By: _________________________
Title: ______________________
Confirmed and Agreed to:
ACACIA RESEARCH CORPORATION
By: ___________________
Title: ________________
Date: _________________
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EXHIBIT A
FORM OF WARRANT
THIS SECURITY AND ANY SHARES ISSUED UPON EXERCISE OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS THE APPLICABLE SECURITY HAS BEEN REGISTERED UNDER THE ACT AND
SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND (2) AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT
THAT REGISTRATION UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.
ACACIA RESEARCH CORPORATION
WARRANT TO PURCHASE COMMON STOCK
This certifies that, for value received, Cruttenden Roth Incorporated ("the
Holder") is entitled to subscribe for and purchase up to shares
(subject to adjustment from time to time pursuant to the provisions of Section 5
hereof) of fully paid and nonassessable Common Stock of Acacia Research
Corporation, a California corporation (the "Company"), at the price specified in
Section 2 hereof, as such price may be adjusted from time to time pursuant to
Section 5 hereof (the "Warrant Price"), subject to the provisions and upon the
terms and conditions hereinafter set forth and callable by the Company upon the
terms and conditions set forth in Section 1 hereof.
As used herein, the term "Common Stock" shall mean the Company's presently
authorized Common Stock, no par value, and any stock into or for which such
Common Stock may hereafter be converted or exchanged.
This Warrant is issued pursuant to that certain Agreement between the
Holder and the Company dated June 30, 1997.
l. TERM OF WARRANT
The purchase right represented by this Warrant is exercisable, in whole or
in part, at any time during a period beginning one year from the date hereof and
ending .
2. WARRANT PRICE
The Warrant Price is $6.00 per share, subject to adjustment from time to
time pursuant to the provisions of Section 5 hereof.
3. METHOD OF EXERCISE: PAYMENT; ISSUANCE OF NEW WARRANT.
Subject to Section 1 hereof, the purchase right represented by this Warrant
may be exercised by the Holder, in whole or in part, by the surrender of this
Warrant (with the notice of exercise form attached hereto as Exhibit 1 duly
executed) at the principal office of the Company and by the payment to the
Company: (i) by cashier's check or wire transfer, of an amount equal to the then
applicable Warrant Price per share multiplied by the number of shares then being
purchased; (ii) without payment of any cash through a cashless exercise option
whereby the Holder receives a number of shares of Common Stock equal to the
excess, if any, of the Current Market Price per share at the date of exercise
over the Warrant Price at the time of exercise, multiplied by the number of
shares for which the Warrants are to, divided by the Current Market Price. For
purposes of this Section 3, the "Current Market Price" per share for any date
shall mean the average of the Closing Prices of the Common Stock for the 10
Trading Days prior to such date. "Closing Price" on any Trading Day shall mean
the last reported sale price, or in case no such sale takes place on such day,
the average of the closing bid and asked prices, for the Common Stock as
reported by the Nasdaq National Market System. "Trading Day" shall mean a day
on which the Common Stock is traded on the Nasdaq National Market System; or
(iii) or a combination of (i) and (ii) of this Section 3.
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The Company shall not be required to issue fractional shares as a result of the
exercise of Warrants. If Holder is entitled to a fraction of a share of Common
Stock as a result of the exercise of Warrants, the Company may pay Holder an
amount in cash equal to the Current Market price multiplied by the fraction of a
share of Common Stock to which the Holder would otherwise be entitled, without
interest. The Company agrees that the shares so purchased shall be deemed to be
issued to the Holder as the record owner of such shares as of the close of
business on the date on which this Warrant shall have been surrendered and
payment made for such shares as aforesaid. In the event of any exercise of the
rights represented by this Warrant, certificates for the shares of stock so
purchased shall be delivered to the Holder within 15 days thereafter and, unless
this Warrant has been fully exercised or expired, a new Warrant representing the
portion of the shares, if any, with respect to which this Warrant shall not then
have been exercised, shall also be issued to the Holder within such 15 day
period.
4. STOCK FULLY PAID; RESERVATION OF SHARES.
All Common Stock which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issue thereof. During the period within which the rights represented by this
Warrant may be exercised, the Company will at all times have authorized, and
reserved for the purpose of the issuance upon exercise of the purchase rights
evidenced by this Warrant, a sufficient number of shares of its Common Stock to
provide for the exercise of the rights represented by this Warrant.
5. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES.
The kind of securities purchasable upon the exercise of this Warrant, the
Warrant Price and the number of shares purchasable upon exercise of this Warrant
shall be subject to adjustment from time to time upon the occurrence of the
following events:
(a) RECLASSIFICATION, CONSOLIDATION, OR MERGER. In case of any
reclassification or change of outstanding securities of the class issuable
upon exercise of this Warrant (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), or in case of any consolidation or
merger of the Company with or into another corporation, other than a merger
with another corporation in which the Company is a continuing corporation
and which does not result in any reclassification or change of outstanding
securities issuable upon exercise of this Warrant, the Company, or such
successor, as the case may be, shall execute a new Warrant, providing that
the Holder of this Warrant shall have the right to exercise such new
Warrant and procure upon such exercise, in lieu of each share of Common
Stock theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money and property receivable
upon such reclassification, change, consolidation, or merger by a Holder of
one share of Common Stock. Such new Warrant shall provide for adjustments,
which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 5. The provisions of this
subparagraph (a) shall similarly apply to successive reclassification,
changes, consolidations, and mergers.
(b) SUBDIVISION OR COMBINATION OF SHARES. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or
combine its common stock, or distribute dividends on its common stock
payable in Common Stock, the Warrant Price shall be proportionately
decreased in the case of a subdivision or increased in the case of a
combination or dividend.
(c) ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment in the
Warrant Price pursuant to any of subparagraphs (a) through (c) of this
Section 5, the number of shares of Common Stock purchasable hereunder shall
be adjusted, to the nearest whole share, to the product obtained by
multiplying the number of shares purchasable immediately prior to such
adjustment in the Warrant Price by a fraction, the numerator of which shall
be the Warrant Price immediately prior to such adjustment and the
denominator of which shall be the Warrant Price immediately thereafter.
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6. NOTICE OF ADJUSTMENTS.
Whenever any Warrant Price shall be adjusted pursuant to Section 5 hereof,
the Company shall prepare a certificate signed by its chief financial officer
setting forth, in reasonable detail, the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment was calculated,
the Warrant Price after giving effect to such adjustment and the number of
shares then purchasable upon exercise of this Warrant, and shall cause copies of
such certificate to be mailed (by first class mail, postage prepaid) to the
Holder of this Warrant at the address determined in accordance with Section
10(c) hereof, or at such other address as may be provided to the Company in
writing by the Holder of this Warrant.
7. FRACTIONAL SHARES.
No fractional shares of Common Stock will be issued in conjunction with any
exercise hereunder, but in lieu of such fractional shares the Company shall make
a cash payment therefore on the basis of the Warrant Price then in effect.
8. COMPLIANCE WITH SECURITIES ACT.
The Holder of this Warrant, by acceptance hereof, agrees that this Warrant
and the shares of Common Stock to be issued on exercise hereof are being
acquired for investment and that it will not offer, sell or otherwise dispose of
this Warrant or any shares of Common Stock to be issued upon exercise hereof
except under circumstances which will not result in a violation of the
Securities Act of 1933, as amended (the "Act"). This Warrant and all shares of
Common Stock issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially in the following
form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE ACT"), OR APPLICABLE STATE SECURITIES LAWS AND
MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN
REGISTERED UNDER THE ACT AND SUCH LAWS OR (1) REGISTRATION UNDER SUCH
LAWS IS NOT REQUIRED AND (2) AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT THAT REGISTRATION
UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED."
9. TRANSFER AND EXCHANGE OF WARRANT.
This Warrant is not transferrable or exchangeable without the consent
of the Company.
10. MISCELLANEOUS.
(a) NO RIGHTS AS SHAREHOLDER. The Holder of this Warrant shall not
be entitled to vote or receive dividends or be deemed the Holder of Common Stock
or any other securities of the Company that may at any time be issuable on the
exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger, conveyance or
otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until the Warrant shall have been exercised and
the shares purchasable upon the exercise hereof shall have become deliverable,
as provided herein.
(b) REPLACEMENT. On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction, or mutilation of this Warrant and,
in the case of mutilation, on surrender and cancellation of this Warrant, the
Company, at its expense, will execute and deliver,
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in lieu of this Warrant, a new Warrant of like tenor.
(c) NOTICE. Any notice given to either party under this Warrant
shall be in writing, and any notice hereunder shall be deemed to have been given
upon the earlier of delivery thereof by hand delivery, by courier, or by
standard form of telecommunication or three (3) business days after the mailing
thereof in the U.S. mail if sent registered mail with postage prepaid, addressed
to the Company at its principal executive offices and to the Holder at its
address set forth in the Company's books and records or at such other address as
the Holder may have provided to the Company in writing.
(d) GOVERNING LAW. This Warrant shall be governed and construed
under the laws of the State of California.
This Warrant is executed as of this _________________ day of June, 1997.
ACACIA RESEARCH CORPORATION
By: ______________________________
Name: ____________________________
Title: ___________________________
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EXHIBIT 1
NOTICE OF EXERCISE
TO: ACACIA RESEARCH CORPORATION
1. The undersigned hereby elects to purchase _____________________
shares of Common Stock of Acacia Research Corporation pursuant to the terms
of the attached Warrant, and tenders herewith payment of the purchase price
of such shares in full.
2. Please issue a certificate or certificates representing said shares of
Common Stock in the name of the Holder at the address specified below:
________________________________________
(Name)
________________________________________
(Address)
________________________________________
(Address)
3. The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares.
____________________________________
(Name of Holder)
_____________________________________
(Signature of Holder)
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