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As filed with the Securities and Exchange Commission on December 30, 1999
Registration No. 333-62389
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACACIA RESEARCH CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware 95-4405754
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
55 South Lake Avenue
Pasadena, California 91101
(626) 396-8300
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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ACACIA RESEARCH CORPORATION 1996 STOCK OPTION PLAN
(Full title of the plan)
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KATHRYN KING-VAN WIE
55 SOUTH LAKE AVENUE
PASADENA, CALIFORNIA 91101
(626) 396-8300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
D. STEPHEN ANTION, ESQ.
O'MELVENY & MYERS LLP
1999 AVENUE OF THE STARS
7TH FLOOR
LOS ANGELES, CALIFORNIA 90067-6035
(310) 553-6700
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No additional securities are to be registered, and registration fees were
paid upon filing of the original Registration Statement No. 333-62389.
Therefore, no further registration fee is required.
The Exhibit Index for this Post-Effective Amendment follows the signature page.
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ACACIA RESEARCH CORPORATION
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT ON FORM S-8
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this "Amendment") to that
certain Registration Statement on Form S-8 (File No. 333-62389, the
"Registration Statement") is being filed pursuant to Rule 414 under the
Securities Act of 1933, as amended (the "Securities Act") by Acacia Research
Corporation, a Delaware corporation ("Acacia Delaware" or the "Company"),
which is the successor to Acacia Research Corporation, a California
corporation ("Acacia California"), following a statutory merger effective on
December 28, 1999 (the "Merger") for the purpose of changing Acacia
California's state of incorporation. Prior to the Merger, Acacia Delaware had
no assets or liabilities other than nominal assets or liabilities. In
connection with the Merger, Acacia Delaware succeeded by operation of law to
all of the assets and liabilities of Acacia California. The Merger was
approved by the shareholders of Acacia California at a meeting for which
proxies were solicited pursuant to Section 14(a) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
Except as modified by this Amendment, Acacia Delaware, by virtue of
this Amendment, expressly adopts the Registration Statement as its own
registration statement for all purposes of the Securities Act and the
Exchange Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Acacia
California and Acacia Delaware are incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended December
31, 1998 filed pursuant to Section 13 of the Exchange Act;
(b) Quarterly Reports on Form 10-Q for the fiscal quarters ended
September 30, 1999, June 30, 1999 and March 31, 1999 filed
pursuant to Section 13 of the Exchange Act;
(c) Current Reports on Form 8-K event dates April 29, 1997,
July 6, 1997, January 27, 1998, April 2, 1998 and
December 28, 1999 filed pursuant to Section 13 of the
Exchange Act;
(d) The description of the Common Stock contained in Amendment
No. 2 to Form 8-A on Form 8-A/A filed December 30, 1999.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act 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
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a part hereof from the date of filing of such documents. Any statement
contained herein or in a document, all or a portion of which is 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 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 amended, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock is registered pursuant to Section 12 of the
Exchange Act, and, therefore, the description of securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides for the
elimination of personal monetary liability of directors to the fullest extent
permissible under Delaware law. Delaware law does not permit the elimination
or limitation of director monetary liability for: (i) breaches of the
director's duty of loyalty to the corporation or its stockholders; (ii) acts
or omissions not in good faith or involving intentional misconduct or knowing
violations of law; (iii) the payment of unlawful dividends or unlawful stock
repurchases or redemptions or (iv) transactions in which the director
received an improper personal benefit.
The Company's Bylaws (the "Bylaws") provide for the indemnification
to the fullest extent permitted by applicable law of any person who was or is
made or is threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of his or her current or past service to the
Company, against all liability and loss suffered and expenses (including
attorney' fees) reasonably incurred by such person.
The Company plans to enter into agreements (the "Indemnification
Agreements") with each of the directors and executive officers of the Company
pursuant to which the Company has agreed to indemnify such director or
executive officer from claims, liabilities, damages, expenses, losses, costs,
penalties or amounts paid in settlement incurred by such director or
executive officer in or arising out of such person's capacity as a director
or executive officer of the Company or any other corporation of which such
person is a director at the request of the Company to the maximum extent
provided by applicable law. In addition, such director or executive officer
will be entitled to an advance of expenses to the maximum extent authorized
or permitted by law.
To the extent that the Board of Directors or the stockholders of the
Company may in the future wish to limit or repeal the ability of the Company
to provide indemnification as set forth in the Certificate of Incorporation,
such repeal or limitation may not be effective as to directors and executive
officers who are parties to the Indemnification Agreements, because their
rights to full protection would be contractually assured by the
Indemnification Agreements. It is
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anticipated that similar contracts may be entered into, from time to time,
with future directors of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index that follows the signature page.
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 the
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(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 by
the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference
in the Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, 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; and
(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, each filing of the registrant's annual report
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pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) 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 may be permitted to directors, executive
officers and controlling persons of the registrant pursuant to
the provisions described in Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act 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
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Post-Effective Amendment No. 1 to the Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Pasadena, State of California, on the 30th day of December, 1999.
By: /s/ Paul R. Ryan
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Paul R. Ryan
President and
Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Paul R. Ryan, R. Bruce Stewart and Kathryn King-Van Wie his or her true and
lawful attorney-in-fact and agent, with full powers of substitution and
resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective amendments) to the Registration Statement and this
Post-Effective Amendment No. 1 to the Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorney-in-fact and agent, 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 or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his or her 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
Post-Effective Amendment No. 1 to the Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
*
- -------------------------------- Director, President and Chief December 30, 1999
Paul R. Ryan Executive Officer (Principal
Executive Officer)
/s/ Peter Frank
- -------------------------------- Chief Financial Officer (Principal December 30, 1999
Peter Frank Financial Officer)
/s/ Mary Rose Colonna
- -------------------------------- Controller (Principal Accounting December 30, 1999
Mary Rose Colonna Officer)
*
- -------------------------------- Chairman of the Board December 30, 1999
R. Bruce Stewart
*
- -------------------------------- Director December 30, 1999
Thomas B. Akin
*
- -------------------------------- Director December 30, 1999
Fred A. de Boom
*
- -------------------------------- Director December 30, 1999
Edward W. Frykman
*By: /s/ Paul R. Ryan
----------------------------
Paul R. Ryan
Attorney-in-Fact
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
4.1 Acacia Research Corporation 1996 Stock Option Plan (1)
5.1 Opinion of O'Melveny & Myers LLP (opinion re legality)
23.1 Consent of PricewaterhouseCoopers LLP (consent of
independent accountants)
23.2 Consent of O'Melveny & Myers LLP (included in Exhibit
5.1)
24.1 Powers of Attorney (1)(2)
(1) Previously filed with the initial Registration Statement on
Form S-8 on August 28, 1998 (SEC File No. 333-62389).
(2) Filed herewith on page S-1.
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EXHIBIT 5.1
December 30, 1999
OUR FILE NUMBER
003,863-018
Acacia Research Corporation
55 South Lake Avenue
Pasadena, California 91101
Re: POST-EFFECTIVE AMENDMENT NO. 1 TO THE REGISTRATION
STATEMENT ON FORM S-8 OF ACACIA RESEARCH CORPORATION
Ladies and Gentlemen:
At your request, we have examined Post-Effective Amendment No. 1 to
the Registration Statement on Form S-8 (SEC File No. 333-62389) to be filed
by Acacia Research Corporation, a Delaware corporation (the "Company") with
the Securities and Exchange Commission in connection with the registration
under the Securities Act of 1933, as amended (the "Securities Act"), of
500,000 shares of Common Stock, $0.001 value, of the Company (the "Common
Stock"), to be issued pursuant to the Acacia Research Corporation 1996 Stock
Option Plan (the "Plan"), which shares of Common Stock were registered under
the Securities Act by Acacia Research Corporation, a California corporation,
prior to its reincorporation into Delaware. We have examined the proceedings
heretofore taken and to be taken in connection with the authorization of the
Plan and the Common Stock to be issued pursuant to and in accordance with the
Plan.
Based upon such examination and upon such matters of fact and law as we
have deemed relevant, we are of the opinion that the Common Stock has been duly
authorized by all necessary corporate action on the part of the Company and,
when issued in accordance with such authorization, the provisions of the Plan
and relevant agreements duly authorized by and in accordance with the terms of
the Plan, will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to Post-Effective
Amendment No. 1 to the above-referenced Registration Statement.
Respectfully submitted,
/s/ O'Melveny & Myers LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Post-effective
Amendment No. 1 to Registration Statement on Form S-8 (No. 333-62389) of our
report dated March 26, 1999 relating to the financial statements and
financial statement schedules of Acacia Research Corporation, which appears in
Acacia Research Corporation's Annual Report on Form 10-K for the year ended
December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Los Angeles, California
December 29, 1999
