AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON DECEMBER 23, 2002
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACACIA RESEARCH CORPORATION
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-4405754
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
500 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660
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(Address Principal Executive Offices)
2002 COMBIMATRIX STOCK INCENTIVE PLAN
2002 ACACIA TECHNOLOGIES STOCK INCENTIVE PLAN
---------------------------------------------
(Full Title of the Plan)
PAUL R. RYAN
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
500 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660
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(Name and Address of Agent for Service)
(949) 480-8300
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(Telephone Number, Including Area Code, of Agent for Service)
COPIES TO:
MARK J. KELSON
ALLEN MATKINS LECK GAMBLE & MALLORY LLP
1901 AVENUE OF THE STARS, 18TH FLOOR
LOS ANGELES, CALIFORNIA 90067
(310) 788-2400
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) SHARE PRICE REGISTRATION FEE
------------------------------------------ -------------------- --------------------- -------------------- ---------------------
2002 CombiMatrix Stock Incentive Plan
Acacia Research - CombiMatrix Common
Stock, $0.001 par value (currently
outstanding options) .................... 5,647,897 shares $9.2191 (2) $52,068,527.23 $4,790.30
------------------------------------------ -------------------- --------------------- -------------------- ---------------------
2002 CombiMatrix Stock Incentive Plan
Acacia Research - CombiMatrix Common
Stock, $0.001 par value (options
available for future grant) ............. 2,862,418 shares $3.465 (2) $9,918,278.37 $912.48
------------------------------------------ -------------------- --------------------- -------------------- ---------------------
2002 Acacia Technologies Stock Incentive
Plan
Acacia Research - Acacia Technologies
Common Stock, $0.001 par value
(currently outstanding options) ........ 3,497,067 shares $11.1449 (3) $38,974,462.00 $3,585.65
------------------------------------------ -------------------- --------------------- -------------------- ---------------------
2002 Acacia Technologies Stock Incentive
Plan
Acacia Research - Acacia Technologies
Common Stock, $0.001 par value (options
available for future grant) ............. 1,710,788 shares $2.07 (3) $3,541,331.16 $325.80
------------------------------------------ -------------------- --------------------- -------------------- ---------------------
TOTAL 13,718,170 shares $104,502,598.70 $9,614.23
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plans
described herein.
(2) The proposed maximum offering price per share is estimated solely for the
purpose of computing the amount of the registration fee under Rule 457(c)
and (h). With respect to the 5,647,897 shares underlying outstanding stock
options under the 2002 CombiMatrix Stock Incentive Plan, the proposed
maximum offering price per share is based on the weighted average exercise
price of $9.2191 per share. With respect to the 2,844,418 shares reserved
for future issuance under the 2002 CombiMatrix Stock Incentive Plan, the
proposed maximum offering price per share is based on the average of the
high and low sale price of $3.465 per share of the Acacia Research -
CombiMatrix Common Stock reported on the Nasdaq Stock Market on December
20, 2002.
(3) The proposed maximum offering price per share is estimated solely for the
purpose of computing the amount of the registration fee under Rule 457(c)
and (h). With respect to the 3,497,067 shares underlying outstanding stock
options under the 2002 Acacia Technologies Stock Incentive Plan, the
proposed maximum offering price per share is based on the weighted average
exercise price of $11.1449 per share. With respect to the 1,710,788 shares
reserved for future issuance under the 2002 Acacia Technologies Stock
Incentive Plan, the proposed maximum offering price per share is based on
the average of the high and low sale price of $2.07 per share of the
Acacia Research - Acacia Technologies Common Stock reported on the Nasdaq
Stock Market on December 20, 2002.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed by Acacia Research
Corporation (the "Registrant") with the Securities and Exchange Commission (the
"Commission"), are incorporated by reference in this registration statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001 (filed on March 27, 2002) (File No. 000-26068),
which contains audited financial statements for the latest fiscal year
for which such statements have been filed;
(b) The following reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the Registrant's fiscal year ended
December 31, 2001:
(i) the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 2002 (filed on May 15, 2002);
(ii) the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 2002 (filed on August 13, 2002,
and amended on September 27, 2002 and November 7, 2002);
(iii) the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 2002 (filed on November 13,
2002);
(iv) the Registrant's Current Report on Form 8-K filed on
June 11, 2002; and
(c) The description of the Registrant's Acacia Research - Acacia
Technologies Common Stock and the Registrant's Acacia Research -
CombiMatrix Common Stock contained in the Registration Statement on
Form 8-A filed with the Commission on December 19, 2002.
All documents that the Registrant subsequently files under Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
II-1
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation-a derivative action), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceedings, had no reasonable cause to believe their conduct
was unlawful.
A similar standard is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
such action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's certificate of
incorporation, bylaws, disinterested director vote, stockholder vote, agreement
or otherwise.
As permitted by Section 145 of the Delaware General Corporation Law,
Article VII of the Registrant's restated certificate of incorporation provides:
No person shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, including without limitation for serving on a committee of
the Board of Directors, except to the extent such exemption from
liability or limitation thereof is not permitted under the DGCL as the
same exists or hereafter may be amended. If the DGCL is amended after
the date of the filing of this Certificate of Incorporation to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL as so amended. Any amendment, repeal or
modification of this Article VII shall not adversely affect any right
or protection of a director of the Corporation existing hereunder with
respect to any act or omission occurring prior to such amendment,
repeal or modification.
The Registrant has purchased insurance on behalf of any person who is
or was a director, officer, employee or agent of the Registrant, or is or was
serving at the request of the Registrant as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Registrant would have the power to indemnify him against such liability under
the provisions of the Registrant's restated certificate of incorporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER EXHIBIT
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5.1 Opinion of Allen Matkins Leck Gamble & Mallory LLP
23.1 Consent of Independent Auditors
23.2 Consent of Allen Matkins Leck Gamble & Mallory LLP is
contained in Exhibit 5.1
24.1 Power of Attorney (contained on page II-4 of this registration
statement)
99.1 2002 CombiMatrix Stock Incentive Plan
99.2 2002 Acacia Technologies Stock Incentive Plan
II-2
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Securities and Exchange Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13 (a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Newport Beach, State of California, on the 23rd day
of December, 2002.
ACACIA RESEARCH CORPORATION
By: /S/ PAUL R. RYAN
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Paul R. Ryan
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
The undersigned directors and officers of Acacia Research Corporation
hereby constitute and appoint Paul R. Ryan and Clayton J. Haynes and each of
them, as his true and lawful attorneys-in-fact and agents, with full power to
act without the other and with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities to sign any
and all amendments (including post-effective amendments) to this registration
statement, and new registration statements relating to this Form S-8, and to
file the same with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated below on the 23rd day of December, 2002.
SIGNATURE TITLE
/S/ PAUL R. RYAN Chief Executive Officer and Director
---------------------------- (Principal Executive Officer)
Paul R. Ryan
/S/ CLAYTON J. HAYNES Chief Financial Officer (Principal
---------------------------- Financial and Accounting Officer)
Clayton J. Haynes
/S/ ROBERT L. HARRIS, II President and Director
----------------------------
Robert L. Harris, II
/S/ THOMAS B. AKIN Director
----------------------------
Thomas B. Akin
/S/ FRED A. DE BOOM Director
----------------------------
Fred A. de Boom
/S/ EDWARD W. FRYKMAN Director
----------------------------
Edward W. Frykman
/S/ G. LOUIS GRAZIADIO, III Director
----------------------------
G. Louis Graziadio, III
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT
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5.1 Opinion of Allen Matkins Leck Gamble & Mallory LLP
23.1 Consent of Independent Auditors
23.2 Consent of Allen Matkins Leck Gamble & Mallory LLP is
contained in Exhibit 5.1
24.1 Power of Attorney (contained on page II-4 of this registration
statement)
99.1 2002 CombiMatrix Stock Incentive Plan
99.2 2002 Acacia Technologies Stock Incentive Plan