EXHIBIT 10.3
GOODWILL PURCHASE AGREEMENT
GOODWILL PURCHASE AGREEMENT (this "AGREEMENT"), dated as of
January 28, 2005, by and between Acacia Global Acquisitions, LLC ("PURCHASER"),
and Anthony O. Brown ("BROWN").
WHEREAS, Brown wishes to sell to Purchaser, and Purchaser
wishes to purchase from Brown, the goodwill owned by Brown and relating solely
to the businesses of the Acquired Companies;
NOW, THEREFORE, in consideration of the mutual undertakings
expressed in this Agreement and for such other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, Purchaser and Brown
hereby agree as follows:
1. Definitions. Unless the context otherwise requires, capitalized
terms used herein but not otherwise defined shall have the meanings assigned to
them in the Membership Interest Purchase Agreement, dated as of the date hereof,
between the Purchaser and Global Patent Holdings, LLC, as amended or modified
from time to time. In addition, for purposes of this Agreement:
"GOODWILL" shall mean all right, title and interest personally
owned by Brown on or prior to the date hereof, anywhere in the world, in and to
all goodwill relating solely to the Business, including the Seller's contacts
and relationships with patent owners, attorneys, inventors, experts and others
in the intellectual property business as such relates solely to the Business.
Notwithstanding the foregoing, (a) Goodwill shall not include any trademarks,
goodwill or other assets, tangible or intangible, owned by any of the Acquired
Companies, and (b) Brown retains all right, title and interest in and to any and
all goodwill relating to any activities other than the Business and to his name.
"BUSINESS" shall mean the acquisition, licensing or
enforcement of any patents or patent applications by the Acquired Companies on
or prior to the date hereof.
2. Assignment. Brown hereby transfers, grants and assigns to Purchaser
Brown's entire right, title and interest in and to the Goodwill.
3. Purchase Price. As consideration for the Goodwill sold by Brown to
Purchaser, Purchaser shall pay to Brown Two Million Dollars ($2,000,000) on the
Closing Date.
4. Disclaimer. EACH PARTY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR TITLE. WITHOUT LIMITATION OF THE FOREGOING, BROWN
DISCLAIMS ANY REPRESENTATION OR WARRANTY RESPECTING THE INTELLECTUAL PROPERTY
RIGHTS OF THE ACQUIRED COMPANIES GIVEN, INCLUDING REPRESENTATIONS OR WARRANTIES
AS TO INFRINGEMENT, VALIDITY OR ENFORCEABILITY OF ANY SUCH RIGHT OR THE REVENUES
THAT MAY BE OBTAINED THROUGH LICENSING OR ENFORCING SUCH RIGHTS.
5. Additional Covenant. Except as otherwise recommended by the
Purchaser's tax advisors or accountants, Purchaser hereby agrees not to take any
position or action for tax purposes that is inconsistent with the terms of this
Agreement.
6. Limitations. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY
OTHER PROVISION HEREOF OR UNDER ANY OTHER AGREEMENT OR THEORY OF LAW, NEITHER
PARTY NOR ANY OF ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER
PERSON OR ENTITY FOR DAMAGES IN THE FORM OF INDIRECT, CONSEQUENTIAL, INCIDENTAL
OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS OR OTHERWISE, OR FOR EXEMPLARY
DAMAGES, EVEN IF THE FIRST PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
7. Miscellaneous
7.1 Further Assurances. Each party hereto shall execute and/or
cause to be delivered to each other party hereto such instruments and other
documents, and shall take such other actions, as such other party may reasonably
request (prior to, at or after the Closing) for the purpose of carrying out or
evidencing any of the transactions contemplated under this Agreement.
7.2 Notices. Any notice or other communication required or
permitted to be delivered to any party under this Agreement shall be in writing
and shall be deemed properly delivered, given and received when delivered (by
hand, by registered mail, by courier or express delivery service or by
facsimile) to the address or facsimile telephone number set forth beneath the
name of such party below (or to such other address or facsimile telephone number
as such party shall have specified in a written notice given to the other
parties hereto):
If to Brown:
Anthony O. Brown
500 Skokie Blvd., Suite 585
Northbrook, IL 60062
Facsimile: (847) 509-1330
If to Purchaser:
Acacia Global Acquisition Corporation
500 Newport Drive, Suite 700
Newport Beach, CA 92660
Attention: Robert Berman, Esq.
Telephone: (949) 480-8333
Facsimile: (949) 480-8390
With a copy (in the cases of notices to Purchaser, which copy shall not
constitute notice) to:
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Steven Anapoell, Esq.
Greenberg Traurig, LLP
650 Town Center Drive, Suite 1700
Costa Mesa, California 92626
Telephone: (714) 708-6504
Facsimile: (714) 708-6501
7.3 Headings. The headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
7.4 Counterparts. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
7.5 Governing Law. This Agreement shall be construed in
accordance with, and governed in all respects by, the internal laws of the State
of California (without giving effect to principles of conflicts of laws).
7.6 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of Brown and Purchaser and its successors.
7.7 Waiver.
(a) No failure on the part of any Person to exercise any
power, right, privilege or remedy under this Agreement, and no delay on the part
of any Person in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy.
(b) No Person shall be deemed to have waived any claim arising
out of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such Person; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
7.8 Amendments. This Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of Purchaser and Brown.
7.9 Severability. In the event that any provision of this
Agreement, or the application of any such provision to any Person or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Agreement, and the
application of such provision to Persons or circumstances other than those as to
which it is determined to be invalid, unlawful, void or unenforceable, shall not
be impaired or otherwise affected and shall continue to be valid and enforceable
to the fullest extent permitted by law.
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7.10 Parties In Interest. None of the provisions of this
Agreement is intended to provide any rights or remedies to any Person other than
the parties hereto and their respective heirs, personal representatives, and
successors.
7.11 Entire Agreement. This Agreement sets forth the entire
understanding of the parties relating to the subject matter thereof and
supersedes all prior agreements and understandings among or between any of the
parties relating to the subject matter thereof.
7.12 Construction.
(a) For purposes of this Agreement, whenever the context
requires, the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
Except as otherwise indicated, all references in this Agreement to "Sections"
are intended to refer to Sections of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ACACIA GLOBAL ACQUISITIONS, LLC
By: /S/ Robert A. Berman
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Name: Robert A. Berman
Title: COO
/S/ Anthony O. Brown
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Anthony O. Brown
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