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As filed with the Securities and Exchange Commission on December 30, 1999
Registration No. 333-39415
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
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)
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
-------------------
No additional securities are to be registered, and registration fees were
paid upon filing of the original Registration Statement No. 333-39415.
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-3
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this "Amendment") to that
certain Registration Statement on Form S-3 (File No. 333-39415, 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").
Pursuant to Rule 416 under the Securities Act, the number of shares
covered by the Registration Statement was automatically increased from
878,270 shares to 1,756,540 shares as a result of the Company's 2-for-1 stock
split in June 1998. 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
ITEM 15. 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 anticipated that similar contracts may be
entered into, from time to time, with future directors of the Company.
ITEM 16 EXHIBITS
See the attached Exhibit Index that follows the signature page.
2
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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-3 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
-------------------
Paul R. Ryan
President and
Chief Executive Officer
3
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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
- -------------------------------- Executive Officer (Principal
Paul R. Ryan 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
- --------------------------------
Thomas B. Akin
* Director December 30, 1999
- --------------------------------
Fred A. de Boom
* Director December 30, 1999
- --------------------------------
Edward W. Frykman
</TABLE>
*By: /s/ Paul R. Ryan
---------------------------
Paul R. Ryan
Attorney-in-Fact
4
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------- ----------------------
<S> <C>
2.1 Agreement and Plan of Merger of Acacia Delaware and Acacia
California (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 (2)(3)
(1) Previously filed with the Current Report on Form 8-K on
December 30, 1999 (SEC File No. 000-26068).
(2) Previously filed with the initial Registration Statement on
Form S-3 on November 4, 1997 (SEC File No. 333-39415).
(3) Filed herewith on page S-1.
</TABLE>
5
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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-3 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-3 (File No. 333-39415) 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 1,756,540
shares of Common Stock, $0.001 par value, of the Company (the "Common
Stock"), including certain shares of Common Stock initially issuable upon
exercise of certain warrants and options by the selling securityholders.
These shares of Common Stock were registered under the Securities Act by
Acacia Research Corporation, a California corporation, prior to its
reincorporation into Delaware.
Based upon such examination and upon such matters of fact and law as
we have deemed relevant, we are of the opinion that subject to said
proceedings being duly taken and completed by you prior to the issuance and
sale of the Common Stock, upon the issuance and sale thereof in the manner
referred to in the Registration Statement, the Common Stock will be legally
and 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-3 (No. 333-39415) 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
