-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CLdNQR6TNkpjyq8+tq3ayWR2dxIRvIiHS2rVzxsjCl62RVYNzA6ttAx4+h0rvygw nfF+k81hJqzej+LlIYbLig== 0000912057-99-011110.txt : 19991231 0000912057-99-011110.hdr.sgml : 19991231 ACCESSION NUMBER: 0000912057-99-011110 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991230 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ACACIA RESEARCH CORP CENTRAL INDEX KEY: 0000934549 STANDARD INDUSTRIAL CLASSIFICATION: INVESTMENT ADVICE [6282] IRS NUMBER: 954405754 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AM SEC ACT: SEC FILE NUMBER: 333-45397 FILM NUMBER: 99784497 BUSINESS ADDRESS: STREET 1: 12 SOUTH RAYMOND AVENUE STREET 2: STE B CITY: PASADENA STATE: CA ZIP: 91105 BUSINESS PHONE: 6264496431 MAIL ADDRESS: STREET 1: 12 S RAYMOND AVENUE STREET 2: SUITE B CITY: PASADENA STATE: CA ZIP: 91105 POS AM 1 S-3 As filed with the Securities and Exchange Commission on December 30, 1999 Registration No. 333-45397 ================================================================================ 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) ------------------- 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. 333-45397. Therefore, no further registration fee is required. The Exhibit Index for this Post-Effective Amendment follows the signature page. ================================================================================ 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. 333-45397, 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 885,467 shares to 1,770,934 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 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 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.
Signature Title Date * 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 *By: /s/ Paul R. Ryan ------------------------- Paul R. Ryan Attorney-in-Fact
4 EXHIBIT INDEX
Exhibit Number Description of Exhibit - ------- ---------------------- 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 February 2, 1998 (SEC File No. 333-45397). (3) Filed herewith on page S-1.
5 EX-5.1 2 EXHIBIT 5.1 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. 333-45397) 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 1,770,934 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 EX-23.1 3 EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Post-effective Amendment No. 1 in Registration Statement on Form S-3 (No. 333-45397) 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 -----END PRIVACY-ENHANCED MESSAGE-----