EXHIBIT 10.1
October 22, 2008
Affinity Technology Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Intellectual Property Transactions & Licensing Services
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Dear ▇▇▇▇▇▇ ▇. ▇▇▇▇▇:
This letter (the "Agreement") will confirm the retention of IP Investments Group
LLC ("IPI") by Affinity Technolgy Group, Inc. ("Client"), on an exclusive basis,
to provide independent professional services in connection with the potential
sale or licensing of Client's patent portfolio ("the Portfolio") as specified in
Exhibit A.
SCOPE OF ENGAGEMENT SERVICES:
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In particular, IPI will: (1) assist Client in identifying Entity(ies) which
might be interested in acquiring and/or licensing the Portfolio, (2) attempt to
negotiate financial terms and conditions for the acquisition and/or licensing of
the Portfolio with such Entity(ies) pursuant to terms established by Client, and
(3) assist Client in connection with collection of compensation from such
Entity(ies). For purposes of this engagement, Entity(ies) includes any company,
party, or individual that IPI has: (1) held discussions with regarding the
Portfolio, and/or (2) sent information to regarding the Portfolio. Client agrees
to have IPI contact any company, party, or individual that contacts Client
directly regarding the Portfolio during the term of this Agreement.
CONFIDENTIALITY OF PROPRIETARY AND SENSITIVE INFORMATION:
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IPI acknowledges that all materials disclosed to it by Client, and the work it
performs for Client hereunder, are confidential and proprietary, and IPI will
abide by all reasonable restrictions placed on it by Client on the dissemination
of such materials and work. All employees of IPI have signed confidentiality
agreements containing obligations to protect the confidentiality of such
material. Any and all studies, reports, surveys of data, client information
packages or other information prepared by IPI in connection with its work for
Client in connection with this Agreement shall be the property of Client.
FEE AND BILLING ARRANGEMENTS:
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(A) COMMISSIONS:
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In connection with the services provided under this Agreement, Client
shall pay IPI a commission on total compensation received (whether in
cash or forms other than cash) by Client from an Entity(ies) ("Success
Fee Commission"). IPI's Success Fee Commission shall be based on the
following scale for total compensation received for the Portfolio:
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SUCCESS FEE COMMISSION TOTAL COMPENSATION RECEIVED
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20.0% $0 - $1,000,000
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25.0% of incremental increase in > $1,000,000
compensation above prior level
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As an example, if the total compensation received by Client for a
transaction was $1,500,000, then IPI's Success Fee Commission would be
$325,000, as calculated below:
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TOTAL
COMPENSATION RATE SUCCESS FEE
RECEIVED COMMISSION
---------------------- -------- ---------------------
$1,000,000 20% $200,000
$500,000 25% $125,000
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$1,500,000 $325,000
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If there is more than one transaction involving the Portfolio that
results in compensation received by Client from more than one
transaction, IPI's Success Fee Commission shall be based on the total
compensation received by Client from an Entity(ies) from all such
transactions. Accordingly, any compensation received from
transaction(s) subsequent to the first transaction shall be cumulative
in terms of calculating IPI's Success Fee Commission in the table
above.
As an example, if the compensation received by Client for a first
transaction involving patents ABC in the Portfolio was $1,000,000 and
the compensation received by Client for a second transaction involving
different patents DEF in the Portfolio was $1,000,000, then IPI's
Success Fee Commission would be $450,000, as calculated below:
----------------- ---------------- -------- -----------------
TRANSACTION TOTAL MONIES RATE SUCCESS FEE
RECEIVED COMMISSION
----------------- ---------------- -------- -----------------
1 $1,000,000 20% $200,000
2 $1,000,000 25% $250,000
----------------- ---------------- -------- -----------------
$2,000,000 $450,000
----------------- ---------------- -------- -----------------
IPI's Success Fee Commission shall be due and payable to IPI within
thirty (30) days upon Client's receipt of compensation from an
Entity(ies).
(B) EXPENSES:
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Client agrees that in addition to any other compensation IPI receives
under this Agreement, Client will pay and reimburse IPI for
out-of-pocket expenses incurred at cost in connection with this
engagement, including ordering patent file histories, FedEx charges,
postage, conference call and long distance charges, reasonable travel,
photocopies, etc. Client and IPI agree that these fees will be paid out
of the proceeds of the sale.
TERM AND TERMINATION:
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(A) TERM. The term of this Agreement shall begin on the date of acceptance
by Client, as specified in the signature block below, and shall continue
until terminated as provided for below.
(B) MUTUAL TERMINATION. Both Client and IPI jointly agree to evaluate the
go-forward status and success of the services provided under this Agreement
at any time deemed necessary, and to the extent mutually agreed, the
parties may modify the terms of this Agreement or agree to terminate this
Agreement ("Mutual Termination"). In the event of a Mutual Termination, IPI
will be entitled to payment of Success Fee Commissions on compensation that
has been received by Client from any Entity(ies) prior to the date of
Mutual Termination plus future Success Fee Commissions, if applicable,
related to agreements executed with any Entity(ies) prior to such
termination.
(C) CLIENT UNILATERAL TERMINATION. Client may terminate this Agreement upon
thirty (30) days written notice to IPI via facsimile and regular mail at
the address set forth above or such other address IPI may designate
("Client Unilateral Termination"). In the event of a Client Unilateral
Termination, IPI will be entitled to payment of Success Fee Commissions on
compensation that has been received by Client from any Entity(ies) prior to
the date of Client Unilateral Termination plus future Success Fee
Commissions, if applicable, related to agreements executed with any
Entity(ies) prior to such termination. Also, for twelve (12) months after
the date of Client Unilateral Termination, if any Entity(ies) becomes an
acquirer and/or licensee of the Portfolio, IPI will be entitled to payment
of Success Fee Commissions that would have been due if this Agreement had
still been in effect.
(D) IPI TERMINATION. IPI may terminate this Agreement at any time upon
thirty (30) days written notice to Client via facsimile and regular mail at
the address set forth above ("IPI Termination"). In the event of an IPI
Termination, IPI will be entitled to payment of Success Fee Commissions on
compensation that has been received by Client from any Entity(ies) prior to
the date of IPI Termination plus future Success Fee Commissions, if
applicable, related to Agreements executed with any Entity(ies) prior to
such termination.
(E) BONA FIDE OFFER. Notwithstanding the foregoing, if Client has received
a bona fide offer from an Entity(ies) prior to the date of termination (any
of the above-referenced termination types) and a transaction is completed
with such Entity(ies) in the future after such termination, IPI will be
entitled to payment of future Success Fee Commissions on compensation
received by Client from such Entity(ies)
(F) TERMINATION FOR CAUSE. If Client believes IPI has failed to perform a
material obligation under this Agreement that is so fundamental that the
failure defeats the essential purposes of this Agreement, then Client may
provide written notice to IPI describing the alleged breach in reasonable
detail. If IPI does not, within thirty (30) days after receiving such
written notice, either: (1) cure the breach, or (2) if the breach is not
one that can reasonably be cured within thirty (30) days, develop a plan as
mutually agreed to by both parties to cure the breach and diligently
proceed according to the plan until the breach has been cured, then Client
may terminate this Agreement ("Termination for Cause"). In the event of a
Termination for Cause, IPI shall not be entitled to any future Success Fee
Commissions related to Agreements executed with any Entity(ies) prior to
the date of such Termination for Cause. IPI will only be entitled to
payment of Success Fee Commissions on compensation that has been received
by Client from any Entity(ies) prior to the date of such termination.
CONDITIONS AND LIMITATIONS:
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(A) NO GUARANTEES. The parties acknowledge that IPI has not guaranteed that
any Entity(ies) will enter into an agreement with Client or that any
transaction will ultimately occur, and that IPI has not advised Client with
respect to the validity of any of its patents, trademarks, or other
intellectual property nor is IPI expected to opine on infringement by any
Entity(ies) or other party(ies). The parties also acknowledge that Client
has not made any guarantees with respect to the validity or enforceability
of any of its patents.
(B) LIMITATION OF LIABILITY. Except for breach of the confidentiality and
indemnification obligations contained in this Agreement, the parties agree
that the total liability of each party, its officers, directors,
principals, employees, agents, and subcontractors, for all claims of any
kind arising out of this Agreement shall not exceed the fees paid by Client
to IPI up to the date such claim arose. IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR
EXEMPLARY DAMAGES, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES
ACKNOWLEDGE THAT THESE EXCLUSIONS OF POTENTIAL DAMAGES WERE AN ESSENTIAL
ELEMENT OF THIS AGREEMENT. Neither party shall be liable for any loss nor
destruction of any valuable documents provided to the other party and each
party shall be responsible for insuring its own such documents against loss
or destruction. Client agrees to defend, indemnify and hold harmless IPI
for any third-party claims which may arise from IPI's provisions of
services under this Agreement.
(C) GOVERNING LAW AND VENUE. This Agreement and all matters arising out of
or relating to this Agreement will be governed by the laws of the State of
Georgia, without reference to its choice of law principles to the contrary.
The parties submit to the exclusive jurisdiction and venue of the courts of
the State of Georgia.
CONCLUSION:
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If you wish to engage us to provide the services specified in this Agreement,
please sign in the space below and return a copy of this letter to us via
regular mail, fax, or email (pdf version) at your earliest convenience.
We look forward to providing our services in connection with this matter. If you
have any questions, please do not hesitate to call me at (▇▇▇) ▇▇▇-▇▇▇▇.
Very truly yours,
IP Investments Group LLC
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Principal
AGREED TO AND ACCEPTED:
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Date: October 22, 2008
Exhibit A
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Patent Numbers:
o U.S. Patent No. 5,537,315
o U.S. Patent No. 5,870,721
o U.S. Patent No. 5,940,811
o U.S. Patent No. 6,105,007
o Any related U.S. or foreign applications and/or issued patents