AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 19, 2004
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
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
500 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660
(Address principal executive offices)
2002 COMBIMATRIX STOCK INCENTIVE PLAN
2002 ACACIA TECHNOLOGIES STOCK INCENTIVE PLAN
(Full titles of the plans)
PAUL R. RYAN
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
500 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660
(Name and Address of Agent for Service)
(949) 480-8300
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
========================================== ==================== ===================== ==================== =====================
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 (2) PRICE REGISTRATION FEE
------------------------------------------ -------------------- --------------------- -------------------- ---------------------
2002 CombiMatrix Stock Incentive Plan 600,000 shares $3.15 $1,890,000 $239.46
Acacia Research - CombiMatrix Common
Stock, $0.001 par value
(options available for future grant) ....
------------------------------------------ -------------------- --------------------- -------------------- ---------------------
2002 Acacia Technologies Stock
Incentive Plan
Acacia Research - Acacia Technologies
Common Stock, $0.001 par value
(options available for future grant) .... 500,000 shares $4.13 $2,065,000 $261.64
------------------------------------------ -------------------- --------------------- -------------------- ---------------------
TOTAL $3,955,000 $501.10
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(1) Represents additional shares issuable under the 2002 CombiMatrix Stock
Incentive Plan and the 2002 Acacia Technologies Stock Incentive Plan
(together, the "Plans") by reason of the automatic share increase
provisions of each of the Plans. This Registration Statement shall also
cover any additional shares of Common Stock attributable to these
registered shares which become issuable under the Plans by reason of any
stock dividend, stock split, recapitalization or other similar transaction
effected without the Registrant's receipt of consideration which results
in an increase in the number of the outstanding shares of the Registrant's
Common Stock.
(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 600,000 shares of Acacia Research -
CombiMatrix Common Stock 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 $3.15 per
share of the Acacia Research - CombiMatrix Common Stock reported on the
Nasdaq National Market on October 15, 2004. With respect to the 500,000
shares of Acacia Research - Acacia Technologies Common Stock 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 $4.13 per share of the Acacia Research -
Acacia Technologies Common Stock reported on the Nasdaq National Market on
October 15, 2004.
This Registration Statement on Form S-8 registers the offer and sale of
an additional 600,000 shares of Acacia Research-CombiMatrix Common Stock for
issuance under the 2002 CombiMatrix Stock Incentive Plan and an additional
500,000 shares of Acacia Research-Acacia Technologies Common Stock for issuance
under the 2002 Acacia Technologies Stock Incentive Plan. The contents of the
prior Registration Statement relating to the Plans, File No. 333-102181, are
incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant hereby incorporates by reference into this Registration
Statement the following documents previously filed with the Securities and
Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2003, as filed with the Commission on March 3,
2004;
(b) The Registrant's Report on Form 8-K filed with the Commission on
March 12, 2004;
(c) The Registrant's Prospectus on Form 424(b)(3) filed with the
Commission on March 17, 2004;
(d) The Registrant's Prospectus on Form 424(b)(5) filed with the
Commission on April 14, 2004;
(e) The Registrant's Report on Form 8-K filed with the Commission on
April 14, 2004;
(f) The Registrant's Report on Form 8-K filed with the Commission on
April 21, 2004;
(g) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2004, as filed with the Commission on May 4, 2004;
(h) The Registrant's Report on Form 8-K filed with the Commission on
July 13, 2004;
(i) The Registrant's Report on Form 8-K filed with the Commission on
July 14, 2004;
(j) The Registrant's Report on Form 8-K filed with the Commission on
July 22, 2004;
(k) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2004, as filed with the Commission on August 5,
2004;
(l) The Registrant's Report on Form 8-K filed with the Commission on
August 12, 2004;
(m) The Registrant's Report on Form 8-K filed with the Commission on
September 9, 2004;
(n) The Registrant's Report on Form 8-K filed with the Commission on
October 4, 2004;
(o) The Registrant's Report on Form 8-K filed with the Commission on
October 7, 2004;
(p) The description of the Registrant's Acacia Research-CombiMatrix
common stock and Acacia Research-Acacia Technologies common stock
contained in the Registration Statement on Form 8-A as filed with
the Commission on December 19, 2002 and any amendment or report
filed with the Commission for the purpose of updating such
description.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 (the "1934 Act") after the date of this Registration Statement and prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference into 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 by
reference herein 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 subsequently filed document which also 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 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.
Acacia is contractually obligated to indemnify its officers pursuant to
separate indemnity agreements consistent with the foregoing standards of Section
145 of the DGCL, except that Acacia must reimburse any expenses incurred by its
officers within 30 days of request and must seek to recoup from its officers any
such expenses that are later determined to be unreasonable or not required to be
reimbursed under the terms of the agreement. Acacia has the burden of proving
that the expenses are unreasonable or that its officers are not entitled to
indemnification.
As permitted by Section 145 of the Delaware General Corporation Law,
Article VII of Acacia's 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, Acacia has been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is therefore unenforceable.
Acacia has purchased insurance on behalf of any person who is or was a
director, officer, employee or agent of Acacia, or is or was serving at the
request of Acacia 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 Acacia would have the power to
indemnify him against such liability under the provisions of Acacia's
certificate of incorporation.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER EXHIBIT
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5.1 Opinion of Greenberg Traurig LLP
23.1 Consent of Independent Registered Public Accounting Firm
regarding Acacia Research Corporation
23.2 Consent of Independent Registered Public Accounting Firm
regarding Acacia Technologies Group
23.3 Consent of Independent Registered Public Accounting Firm
regarding CombiMatrix Group
23.4 Consent of Greenberg Traurig LLP (contained in Exhibit 5.1)
24.1 Power of Attorney (contained on page II-2 of this registration
statement)
99.1 2002 CombiMatrix Stock Incentive Plan*
99.2 2002 Acacia Technologies Stock Incentive Plan*
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*Incorporated by reference from Acacia Research's Registration Statement on Form
S-8 (File No. 333-102181).
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 18th day
of October, 2004.
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 and on the date indicated.
SIGNATURE TITLE DATE
/s/ Paul R. Ryan Chief Executive Officer and Chairman October 18, 2004
----------------------------- (Principal Executive Officer)
Paul R. Ryan
/s/ Clayton J. Haynes Chief Financial Officer (Principal October 18, 2004
----------------------------- Financial and Accounting Officer)
Clayton J. Haynes
/s/ Robert L. Harris, II President and Director October 18, 2004
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Robert L. Harris, II
/s/ Thomas B. Akin Director October 18, 2004
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Thomas B. Akin
/s/ Rigdon Currie Director October 18, 2004
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Rigdon Currie
/s/ Fred A. de Boom Director October 18, 2004
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Fred A. de Boom
/s/ Edward W. Frykman Director October 18, 2004
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Edward W. Frykman
/S/ G. Louis Graziadio, III Director October 18, 2004
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G. Louis Graziadio, III
/s/ Amit Kumar Director October 18, 2004
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Amit Kumar
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT
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5.1 Opinion of Greenberg Traurig LLP
23.1 Consent of Independent Registered Public Accounting Firm
regarding Acacia Research Corporation
23.2 Consent of Independent Registered Public Accounting Firm
regarding Acacia Technologies Group
23.3 Consent of Independent Registered Public Accounting Firm
regarding CombiMatrix Group
23.4 Consent of Greenberg Traurig LLP (contained in Exhibit 5.1)
24.1 Power of Attorney (contained on page II-2 of this registration
statement)
99.1 2002 CombiMatrix Stock Incentive Plan*
99.2 2002 Acacia Technologies Stock Incentive Plan*
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*Incorporated by reference from Acacia Research's Registration Statement on Form
S-8 (File No. 333-102181).