Investment Agreement - Acacia Research Corp. and Greenwich Information Technologies LLC
ACACIA RESEARCH CORPORATION
February 10, 1997
VIA FAX AND FEDERAL EXPRESS
---------------------------
Fax No.: (203) 869-8594
Mr. H. Lee Browne
Greenwich Information Technologies LLC
Two Soundview Drive
Greenwich, Connecticut 06830
Dear Lee:
The undersigned, Acacia Research Corporation, a California corporation (the
"Company"), and Greenwich Information Technologies LLC, a Delaware limited
liability company ("Greenwich"), entered into a letter of agreement, as
amended (the "Letter Agreement"), whereby the Company agreed to invest
$1,000,000 on or before January 31, 1997 in exchange for a 33.33% membership
interest in Greenwich (the "Investment"). As of the date of this letter, the
Company has already paid Greenwich $475,000. This letter reflects the
parties' agreement as to the manner in which the Company will perform its
payment obligations with respect to the remaining $525,000, as described
below.
1. ISSUANCE OF PROMISSORY NOTE. The Company shall issue to Greenwich a
non-recourse promissory note in the principal amount of $525,000 bearing
simple interest at 6.5% per annum (the "Note"). Such interest shall not
compound. The Company shall make payments to Greenwich, in repayment of the
Note, pursuant to the following schedule:
(a) commencing February 10, 1997 and continuing through July 1, 1997,
the Company shall pay Greenwich the principal amount of $25,000
on February 10, 1997 and, thereafter, on the first business day
of each month;
(b) commencing August 1, 1997 and continuing through December 1, 1997,
the Company shall pay Greenwich the principal amount of $50,000
on the first business day of each month; and
(c) on December 31, 1997, the Company shall pay Greenwich the
outstanding principal amount of the Note, together with all
accrued and unpaid interest.
All payments made in accordance with the foregoing payment schedule shall
be credited to the principal on the Note, unless otherwise provided herein.
The Company shall have the option, but not the obligation, on each date on
which an installment of principal is due and payable hereunder to pay any
interest which has accrued as of such installment date. Repayment of the
Note is also subject to acceleration as described in a Pledge Agreement
relating to the Note.
2. EXECUTION OF PLEDGE AGREEMENT. The Company and Greenwich shall
enter into a Pledge Agreement, whereby the Company will pledge a portion of
its membership interest in Greenwich in order to secure the Company's
obligations under the Note.
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Page Two of Two
Greenwich Information Technologies LLC/Letter Agreement
February 10, 1997
3. AMENDMENTS AND MODIFICATIONS TO PRIOR AGREEMENTS. The Letter
Agreement, and all other related agreements and obligations, whether oral or
written, relating to the Investment are hereby modified and amended to
conform in all respects to the agreements of the parties as described in this
letter.
Sincerely,
ACACIA RESEARCH CORPORATION
a California corporation
By: /s/ Paul R. Ryan
-------------------------------------
Paul R. Ryan
President and Chief Executive Officer
Agreed To And Accepted By:
GREENWICH INFORMATION TECHNOLOGIES LLC
a Delaware limited liability company
By: /s/ H. Lee Browne
---------------------------------------
H. Lee Browne
Chief Executive Officer
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NON-RECOURSE
PROMISSORY NOTE
DUE DECEMBER 31, 1997
$525,000.00 Pasadena, California
February 10, 1997
FOR VALUE RECEIVED, ACACIA RESEARCH CORPORATION, a California
corporation ("MAKER"), unconditionally promises to pay to the order of GREENWICH
INFORMATION TECHNOLOGIES LLC, a Delaware limited liability company ("PAYEE"), in
the manner and at the place hereinafter provided, the principal amount of FIVE
HUNDRED TWENTY FIVE THOUSAND DOLLARS ($525,000.00).
Maker also promises to pay interest on the unpaid principal amount
hereof from the date hereof until paid in full at a simple interest rate equal
to 6.5% per annum. Such interest shall not compound. Interest on this Note
shall be payable on the maturity date and as set forth in Section 3 hereof. All
computations of interest shall be made by Payee on the basis of a 365 day year,
for the actual number of days elapsed in the relevant period (including the
first day but excluding the last day).
1. PAYMENTS. All payments of principal and interest in respect of
this Note shall be made in lawful money of the United States of America. Each
payment made hereunder shall be credited to principal, unless otherwise provided
herein, and interest shall thereupon cease to accrue upon the principal so
credited.
2. PAYMENT SCHEDULE. Maker shall pay Payee, in repayment of the
Note, pursuant to the following schedule:
(a) commencing February 10, 1997 and continuing through July 1, 1997,
Maker shall pay Payee the principal amount of $25,000.00 on
February 10, 1997 and, thereafter, on the first business day of
each month;
(b) commencing August 1, 1997 and continuing through December 1,
1997, Maker shall pay Payee the principal amount of $50,000.00 on
the first business day of each month; and
(c) on December 31, 1997, Maker shall pay Payee the outstanding
principal amount of this Note, together with any accrued and
unpaid interest.
3. PREPAYMENTS. Maker shall have the right at any time and from
time to time to prepay the principal of this Note in whole or in part, without
premium or penalty, such prepayment, if in full, to be accompanied by accrued
and unpaid interest to the date of prepayment. Maker shall also have the
option, but not the obligation, on each date on which an installment of
principal is due and payable hereunder to pay any interest which has accrued as
of such installment date. If, prior to the complete repayment of this Note,
Maker receives a Distribution (as such term is defined in that certain Pledge
Agreement between
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Maker and Payee as of even date herewith that secures the obligations of this
Note (the "Pledge Agreement")), Maker shall use the Distribution to prepay
this Note in an amount equal to the Distribution. Such prepayment shall be
without premium or penalty.
4. ACCELERATION. The outstanding principal amount of this Note,
together with any accrued and unpaid interest thereon, shall become due and
payable by Maker, prior to the complete repayment of the Note, within 10
business days after the closing of one or more transactions (including,
without limitation, offerings of equity, the incurrence of debt or the sale
of the Company's investment securities) in which Maker raises capital
generating net proceeds in excess of $2,000,000.00 in the aggregate to be
used for Company purposes (and not to be used for affiliates or subsidiaries).
5. EVENTS OF DEFAULT. The occurrence of any of the following
events shall constitute an "EVENT OF DEFAULT":
(a) failure of Maker to pay any principal under this Note when due,
whether at stated maturity, required prepayment, acceleration, or
otherwise, or failure of Maker to pay any interest or other amount due
under this Note within five business days after the date due; and
(b) if Maker shall challenge, or institute any proceedings to
challenge, the validity, binding effect or enforceability of this Note or
any endorsement of this Note or any other obligation to Payee.
6. REMEDIES. Upon the occurrence and during the continuance of any
Event of Default, Payee may, by written notice to Maker, declare the principal
amount of this Note, together with accrued interest thereon, to be due and
payable, and the principal amount of this Note, together with such interest,
shall thereupon immediately become due and payable without presentment, further
notice, protest or other requirements of any kind (all of which are hereby
expressly waived by Maker).
7. MISCELLANEOUS.
(a) Any notice or other communication herein required or permitted to
be given shall be in writing and may be personally served, telexed or sent by
telefacsimile or United States mail or courier service and shall be deemed to
have been given when delivered in person or by courier service, upon receipt of
telefacsimile or telex, or three business days after depositing it in the United
States mail with postage prepaid and properly addressed. For the purposes
hereof, the address of Maker shall be as specified under its signature below;
the address of Payee shall be Greenwich Information Technologies LLC, c/o Mr. H.
Lee Browne, Two Soundview Drive, Greenwich, Connecticut 06830; or in each case
at such other address as shall be designated by Payee or Maker.
(b) No failure or delay on the part of Payee or any other holder of
this Note to exercise any right, power or privilege under this Note and no
course of dealing between Maker and Payee shall impair such right, power or
privilege or operate as a waiver of any default or an acquiescence therein, nor
shall any single
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or partial exercise of any such right, power or privilege preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies expressly provided in this Note are
cumulative to, and not exclusive of, any rights or remedies that Payee would
otherwise have. No notice to or demand on Maker in any case shall entitle
Maker to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the right of Payee to any other or
further action in any circumstances without notice or demand.
(c) Maker and any endorser of this Note hereby consent to renewals
and extensions of time at or after the maturity hereof, without notice, and
hereby waive diligence, presentment, protest, demand and notice of every kind
and, to the full extent permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
(d) If any provision in or obligation under this Note shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
(e) This Note is non-recourse to the Maker and its assets, and Maker
shall have no personal liability under this Note. Payee's only recourse shall
be against the collateral pledged to Payee under the Pledge Agreement.
(f) This Note and the rights and obligations of Maker and Payee
hereunder shall be governed by, and shall be construed and enforced in
accordance with, the internal laws of the State of California without regard to
conflicts of laws principles.
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IN WITNESS WHEREOF, Maker has caused this Note to be executed and
delivered by its authorized officer as of the day and year and at the place
first above written.
ACACIA RESEARCH CORPORATION
/s/ Paul R. Ryan
----------------------------------------
By: Paul R. Ryan
Its: President and Chief Executive Officer
Notice Address:
Acacia Research Corporation
12 South Raymond Avenue
Pasadena, California 91105
<PAGE>
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Agreement") is dated as of February
10, 1997 and entered into by and between ACACIA RESEARCH CORPORATION, a
California corporation ("Pledgor"), and GREENWICH INFORMATION TECHNOLOGIES
LLC, a Delaware limited liability company ("Secured Party" or the "Company").
PRELIMINARY STATEMENTS
A. Pledgor is a party to that certain Operating Agreement of the
Company dated as of September 11, 1996 (the "Operating Agreement"), pursuant
to which Pledgor received a 33.33% membership interest in the Company in
exchange for Pledgor's agreement to contribute $1,000,000 to the Company.
B. Pledgor has sold 3.31% of its membership interest in the
Company. As a result, Pledgor owns a 30.02% membership interest in the
Company.
C. As of the date hereof, Pledgor has paid $475,000 of the
$1,000,000 it agreed to contribute to the Company in exchange for its
original 33.33% membership interest. Pledgor must contribute an additional
$525,000, representing 17.5% of its 30.02% membership interest in the Company
in order to satisfy all of its payment obligations for the 33.33% membership
interest originally purchased.
D. Secured Party has entered into a letter agreement dated as of
the date hereof (the "Letter Agreement") with Pledgor pursuant to which
Pledgor and Secured Party have agreed as to the manner in which Pledgor will
meet its remaining payment obligations with respect to 17.5% of the
membership interest in the Company owned by Pledgor.
E. Pursuant to the Letter Agreement, Pledgor has issued to
Secured Party a promissory note dated as of the date hereof (such promissory
note, as it may hereafter be amended, supplemented or otherwise modified from
time to time, being the "Note", the terms defined therein and not otherwise
defined herein being used herein as therein defined).
F. Pursuant to the Letter Agreement, Secured Party and Pledgor
have agreed that the Note shall be secured by the pledge and security
interests contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to
induce Secured Party to accept the Note and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Pledgor hereby agrees with Secured Party as follows:
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SECTION 1. PLEDGE OF SECURITY. Pledgor hereby pledges and assigns
to Secured Party, and hereby grants to Secured Party a security interest in,
all of Pledgor's right, title and interest in and to:
(a) That portion of Pledgor's membership interest in the Company,
calculated as of the date hereof as follows:
Date of
Determination Pledged Interest
------------- ----------------
(i) on or prior to the 20.79%
date on which
Pledgor shall have
made aggregate
payments in respect
of the Note of
$200,000
(ii) following the date set 17.5%
forth in Section 1(a)(i)
above
(on any such date of determination, the "Pledged Interest"); and
(b) Subject to the provisions of Section 5(a) and Section 5(b), all
cash, securities, distributions and other property at any time and from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Interest (the Pledged Interest and the
pledged property identified in this subsection (b) are collectively referred
to hereinafter as the "Pledged Collateral").
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures, and
the Pledged Collateral is collateral security for, the prompt payment or
performance in full when due, whether at stated maturity, required
prepayment, acceleration or otherwise, of all obligations and liabilities of
Pledgor arising out of or in connection with the Note and all extensions or
renewals thereof, whether for principal or interest, and all obligations of
Pledgor now or hereafter existing under this Agreement, including without
limitation obligations under Section 12 hereof (all such obligations of
Pledgor being the "Secured Obligations").
SECTION 3. COVENANTS AS TO THE PLEDGED COLLATERAL. So long as any
of the Secured Obligations shall remain outstanding, Pledgor shall not,
unless Secured Party shall otherwise consent in writing, sell, assign,
exchange or otherwise dispose of any of the Pledged Collateral or any
interest therein or create or suffer to exist any lien, security interest or
other charge or encumbrance upon or with respect to any of the Pledged
Collateral, except for the pledge hereunder and the security interest created
hereby; PROVIDED, HOWEVER, that Pledgor shall be entitled to transfer the
Pledged Interest so long as (a) such transfer is permitted by the terms of
the Operating Agreement, (b) such transfer is subject to the lien of and the
other terms and conditions of this Pledge Agreement, (c) any such assignee
becomes a party to this Pledge Agreement and agrees to be bound by the
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terms hereof and thereof, (d) Secured Party is given possession of any new
certificate representing such membership interest and executed transfer power
evidencing the transfer of such Pledged Interest to such assignee, and (e)
any such assignee shall take such further actions and execute such further
documents as shall be necessary to perfect or evidence a security interest of
Secured Party in the Pledged Collateral.
SECTION 4. FURTHER ASSURANCES. 0Pledgor agrees that from time to
time, Pledgor will execute and deliver all further instruments and documents,
and take all further action that Secured Party may reasonably request, in
order to perfect and protect any security interest granted or purported to be
granted hereby or to enable Secured Party to exercise and enforce its rights
and remedies hereunder with respect to any Pledged Collateral.
SECTION 5. VOTING RIGHTS; DISTRIBUTIONS; ETC.
(a) So long as no Event of Default shall have occurred and be
continuing
(i) Pledgor shall be entitled to exercise any and all voting and
other consensual rights and powers relating or pertaining to the
Pledged Collateral or any part thereof for any purpose not
inconsistent with the terms of this Agreement; and
(ii) Pledgor shall be entitled to recognize on its accounts all
accrued but unpaid profits of the Company in respect of the Pledged
Interest; and
(iii) any and all interim or annual distributions in respect of
the Pledged Interest, other than the tax distributions referred to
in paragraph 5(b) below, which are actually paid to Pledgor after
the date hereof and prior to the satisfaction of the Secured
Obligations hereunder, shall be used by Pledgor to prepay, in an
amount equal to such distribution (the "Distribution") amounts
outstanding under the Note; and
(iv) any and all liquidating distributions made on or in respect
of the Pledged Collateral, whether resulting from a subdivision,
combination or reclassification of the outstanding interests of any
issuer thereof or received in exchange for such Pledged Collateral
or any part thereof or as a result of any merger, consolidation,
acquisition or other exchange of assets to which any such issuer may
be a party or otherwise, and any and all cash and other property
received in payment of the principal of or in redemption of or in
exchange for any Pledged Collateral (either at maturity, upon call
for redemption or otherwise), shall be and become part of the
Pledged Collateral and, if received by the Pledgor, shall be held in
trust for the benefit of the Secured Party and shall forthwith be
delivered to the Secured Party or its designated agent (accompanied
by property instruments of assignment and/or stock and/or bond
powers executed by such in accordance with the Secured Party's
instructions) to be held subject to the terms of this Pledge
Agreement.
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(b) Upon the occurrence and during the continuance of an Event of
Default, upon written notice from Secured Party to Pledgor, all rights of
Pledgor to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to Section 5(a)(i) shall cease,
and all such rights (so long as an Event of Default is continuing) shall
thereupon become vested in Secured Party who shall thereupon have the sole
right to exercise such voting and other consensual rights. For the avoidance
of doubt, the parties acknowledge that if, as a result of an Event of
Default, Secured Party is entitled to exercise its remedies as provided
hereunder with respect to the Pledged Interest, such remedies shall include
the right to receive all profits with respect to the Pledged Interest that
have accrued from the date of this Agreement through the date of any such
Event of Default that remain undistributed as of such date. Anything
contained herein to the contrary notwithstanding, Secured Party shall pay tax
distributions to its members, including the Pledgor, pursuant to Section 7.5
of the Operating Agreement even in periods during which Events of Default are
continuing, and the Pledgor shall be entitled to retain such tax
distributions to the extent necessary to allow Pledgor to satisfy its tax
liabilities in respect of its interest in the Company.
SECTION 6. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Pledgor
hereby irrevocably appoints Secured Party as Pledgor's attorney-in-fact, with
full authority in the place and stead of Pledgor and in the name of Pledgor
or otherwise, from time to time in Secured Party's discretion during any
period in which an Event of Default is continuing, to take any action and to
execute any instrument which Secured Party deems reasonably necessary or
advisable to accomplish the purpose of this Agreement which appointment is,
irrevocable and coupled with an interest.
SECTION 7. SECURED PARTY MAY PERFORM. If Pledgor fails to perform
any agreement contained herein, Secured Party may itself perform, or cause
performance of, such agreement or obligation, and the reasonable expenses of
Secured Party incurred in connection therewith shall be payable by Pledgor.
SECTION 8. STANDARD OF CARE. Secured Party shall exercise
reasonable care in the custody of any of the Pledged Collateral in its
possession or control and shall be deemed to have exercised such reasonable
care if such Pledged Collateral is accorded treatment substantially equal to
that which Secured Party accords its own property or if Secured Party takes
such action with respect to the Pledged Collateral as Pledgor shall
reasonably request in writing (which action Secured Party shall endeavor to
take if it determines, in its sole discretion, that such action will not
adversely affect the value as collateral of the Pledged Collateral and such
request is received by Secured Party in time), but no failure to comply with
any such request, nor any omission to do any such act requested by the
undersigned, shall be deemed a failure to exercise reasonable care, nor shall
any failure of Secured Party to take necessary steps to preserve rights
against any parties with respect to any of the Pledged Collateral in its
possession or control be deemed a failure to exercise reasonable care.
SECTION 9. EVENTS OF DEFAULT. The occurrence of any of the
following events shall constitute an "Event of Default":
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(a) Failure of Pledgor to pay any principal or interest under the
Note when due, whether at stated maturity, required prepayment, acceleration
or otherwise; or
(b) Failure of Pledgor to perform or observe any material term,
covenant or agreement contained in this Pledge Agreement or the Note and such
failure is not cured within 60 days after written notice thereof from Secured
Party.
SECTION 10. REMEDIES. If any Event of Default shall have occurred
and be continuing, following the expiration of any applicable cure period,
the Pledgor shall forfeit its Pledged Collateral in consideration of the
extinguishment of the Pledgor's debt to the Company and the Pledged Interest
shall be allocated to each Member of the Company pro rata according to such
Member's Percentage Interest in the Company (as each such capitalized term is
defined in the Operating Agreement). Upon such forfeiture, the Note shall be
fully discharged, and Pledgor shall have no further obligation or liability
to Secured Party or otherwise in respect of the Note or this Pledge Agreement.
SECTION 11. APPLICATION OF PROCEEDS. Except as expressly provided
elsewhere in this Agreement, all proceeds received by Secured Party in
respect of any sale of, collection from, or other realization upon all or any
part of the Pledged Collateral pursuant to Section 10(b) or (d) hereof may,
in the discretion of Secured Party, be held by Secured Party as Pledged
Collateral for, and/or then, or at any time thereafter, applied in full or in
part by Secured Party against, the Secured Obligations in the following order
of priority:
FIRST: To the payment of all reasonable costs and expenses of such
sale, collection or other realization and all amounts for which Secured
Party is entitled to indemnification hereunder, and to the payment of all
reasonable costs and expenses paid or incurred by Secured Party in
connection with the exercise of any right or remedy hereunder, all in
accordance with Section 12;
SECOND: To the payment of all of the Secured Obligations; and
THIRD: To the payment to or upon the order of Pledgor, or to
whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct, of any surplus then remaining from such
proceeds.
SECTION 12. INDEMNITY AND EXPENSES. Pledgor agrees to reimburse
the Secured Party, on demand, for all costs and expenses incurred by the
Secured Party in enforcing this Pledge Agreement (including the reasonable
fees and expenses of its agents and counsel), to the extent such costs and
expenses result from the breach of any warranty or covenant hereunder by the
Pledgor. Pledgor agrees to indemnify and hold harmless the Secured Party from
and against any and all liability incurred by the Secured Party in good faith
hereunder (as a result of such breach or misrepresentation) other than any
liability arising as a result of the Secured Party's negligence, recklessness
or willful misconduct.
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SECTION 13. CONTINUING SECURITY INTEREST. This Agreement shall
create a continuing security interest in the Pledged Collateral and shall (a)
remain in full force and effect until the payment in full of all Secured
Obligations, (b) be binding upon Pledgor, its successors and assigns, and (c)
inure, together with the rights and remedies of Secured Party hereunder, to
the benefit of Secured Party and its successors, transferees and assigns.
Upon the payment in full of all Secured Obligations, the security interest
granted hereby shall terminate and all rights to the Pledged Collateral shall
revert to Pledgor. Upon any such termination Secured Party will, at
Pledgor's expense, execute and deliver to Pledgor such documents as Pledgor
shall reasonably request to evidence such termination and Pledgor shall be
entitled to the return, upon its request and at its expense, against receipt
and without recourse to Secured Party, of such of the Pledged Collateral as
shall not have been sold or otherwise applied pursuant to the terms hereof.
SECTION 14. NO RECOURSE. Notwithstanding anything to the contrary
in this Agreement, no recourse shall be had, whether by levy or execution, or
under any law, or by the enforcement of any assessment or penalty or
otherwise, for the payment of any of the Secured Obligations, against Pledgor
individually or personally, or any successor, assign or affiliate of Pledgor,
or any of the assets of the aforesaid persons, it being expressly understood
that the sole remedies available to Secured Party pursuant to this Agreement
with respect to the Secured Obligations shall be against the Pledged
Collateral. In an Event of Default, the Secured Party shall look for payment
solely to the Pledged Collateral and will not make any claim or institute any
action or proceeding against the Pledgor (or its successors or assigns of
affiliates) for payment of the Secured Obligations (or for any deficiency
remaining after application of the Pledged Collateral). Nothing contained
herein, however, shall be construed to release or impair the lien upon the
Pledged Collateral, or preclude the application of the Pledged Collateral to
the payment of the Secured Obligations in accordance with the terms of this
Pledge Agreement.
SECTION 15. AMENDMENTS; ETC. No amendment, modification,
termination or waiver of any provision of this Agreement, and no consent to
any departure by Pledgor therefrom, shall in any event be effective unless
the same shall be in writing and signed by Secured Party and, in the case of
any such amendment or modification, by Pledgor. Any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which it was given.
SECTION 16. NOTICES. Any notice or other communication herein
required or permitted to be given shall be in writing and may be personally
served, telexed or sent by telecopy or United States mail or courier service
and shall be deemed to have been given when delivered in person or by courier
service, upon receipt of telecopy or telex, or three Business Days after
depositing it in the United States mail with postage prepaid and properly
addressed. For the purposes hereof, the address of each party hereto shall
be as set forth below or, as to either party, such other address as shall be
designated by such party in a written notice delivered to the other party
hereto:
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If to Pledgor:
Acacia Research Corporation
c/o Mr. Paul R. Ryan
12 South Raymond Avenue
Pasadena, California 91105
If to Secured Party:
Greenwich Information Technologies LLC
c/o Mr. H. Lee Browne
Two Soundview Drive
Greenwich, Connecticut 06830
SECTION 17. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Secured Party in the exercise of any
power, right or privilege hereunder shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude any other or further exercise thereof or of any other
power, right or privilege. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
SECTION 18. SEVERABILITY. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 19. HEADINGS. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
SECTION 20. GOVERNING LAW; TERMS. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE
EXTENT THAT THE UNIFORM COMMERCIAL CODE OF THE STATE OF CALIFORNIA PROVIDES
THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF CALIFORNIA.
Unless otherwise defined herein or in the Note, terms used in Articles 8 and
9 of such Code are used herein as therein defined.
SECTION 21. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple separate
counterparts and
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attached to a single counterpart so that all signature pages are physically
attached to the same document.
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IN WITNESS WHEREOF, Pledgor and Secured Party have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
ACACIA RESEARCH CORPORATION, as Pledgor
/s/ Paul R. Ryan
------------------------------------------
By: Paul R. Ryan
Its: President and Chief Executive Officer
GREENWICH INFORMATION
TECHNOLOGIES LLC, as Secured Party
/s/ H. Lee Browne
------------------------------------------
By: H. Lee Browne
Its: Chief Executive Officer
Approved and consented to by the
Senior Members of Greenwich
Information Technologies LLC:
H. LEE BROWNE, as Senior Member
/s/ H. Lee Browne
-----------------------------------------
ACACIA RESEARCH CORPORATION, as
Senior Member
/s/ Paul R. Ryan
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By: Paul R. Ryan
Its: President and Chief Executive Officer
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