AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 8, 2002
REGISTRATION NO. 333-87654
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
AMENDMENT NO. 6
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
ACACIA RESEARCH CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------
DELAWARE 6282 954405754
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
500 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA 92660
(949) 480-8300
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
PAUL R. RYAN
ACACIA RESEARCH CORPORATION
500 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA 92660
(949) 480-8300
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------
COPIES TO:
MARK J. KELSON
D. STANLEY ROWLAND
ALLEN MATKINS LECK GAMBLE & MALLORY LLP
1901 AVENUE OF THE STARS
SUITE 1800
LOS ANGELES, CA 90067-6019
----------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the registration statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
CALCULATION OF REGISTRATION FEE
================================================================================================================================
PROPOSED
PROPOSED MAXIMUM MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
--------------------------------------------------------------------------------------------------------------------------------
Acacia Research Corporation-Acacia Technologies Common
Stock, par value $0.001 per share (1)..................... 19,640,808 N/A N/A $17,313.97(4)
--------------------------------------------------------------------------------------------------------------------------------
Acacia Research Corporation-CombiMatrix Common Stock, par
value $0.001 per share (2)................................ 10,963,277 N/A N/A N/A(4)
--------------------------------------------------------------------------------------------------------------------------------
Acacia Research Corporation-CombiMatrix Common Stock, par
value $0.001 per share (3)................................ 11,987,274 N/A N/A $ 1,703.01(5)
================================================================================================================================
TOTAL $19,016.98
================================================================================================================================
(1) Represents the maximum number of shares of Acacia Research
Corporation-Acacia Technologies Common Stock to be issued in connection
with the recapitalization, based on 19,640,808 shares of the Common Stock
of Acacia Research Corporation outstanding.
(2) Represents the maximum number of shares of Acacia Research
Corporation-CombiMatrix Common Stock to be issued in connection with the
recapitalization, based on 19,640,808 shares of the Common Stock of Acacia
Research Corporation outstanding.
(3) Represents the maximum number of shares of Acacia Research
Corporation-CombiMatrix Common Stock to be issued in connection with the
merger of Acacia Research Corporation and CombiMatrix Corporation, based on
11,987,274 shares of the Common Stock of CombiMatrix Corporation
outstanding, excluding shares held by Acacia Research Corporation and its
affiliates.
(4) Pursuant to Rule 457(f)(1) and 457(c) under the Securities Act, this
portion of the registration fee has been calculated based on per share
prices of the Common Stock of Acacia Research Corporation of $9.585 and
$4.175 (the average of the high and low price per share of the Common Stock
of Acacia Research Corporation on the Nasdaq National Market on April 29,
2002 and October 22, 2002, respectively). $17,309.58 of this fee has been
previously paid.
(5) Pursuant to Rule 457(f)(2) under the Securities Act and Rule 0-11(a)(4) and
0-11(c)(1)(i) under the Securities Exchange Act of 1934, this portion of
the registration fee has been calculated, as of April 29, 2002 and as of
October 22, 2002, based upon the then-current book values of CombiMatrix
Corporation of $19,425,072 and $5,393,484, respectively, and the percentage
of the outstanding shares of CombiMatrix Corporation Common Stock that will
be exchanged in the merger for the shares of AR-CombiMatrix Common Stock
being included in this registration statement on such dates, 41.6% and
17.5%, respectively. $1,616.17 of this fee has been previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(a), MAY DETERMINE.
================================================================================
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PROXY STATEMENT
OF
ACACIA RESEARCH CORPORATION
SPECIAL MEETING OF STOCKHOLDERS TO BE
HELD AT 610 NEWPORT CENTER DRIVE, SUITE 130, NEWPORT BEACH, CALIFORNIA
AT 1:30 P.M., PACIFIC TIME, ON DECEMBER 11, 2002
----------
PROSPECTUS OF
ACACIA RESEARCH CORPORATION
ACACIA RESEARCH CORPORATION - ACACIA RESEARCH CORPORATION -
COMBIMATRIX COMMON STOCK ACACIA TECHNOLOGIES COMMON STOCK
TO OUR STOCKHOLDERS:
You are invited to attend a special meeting of our stockholders at which
you will be asked to consider and adopt a recapitalization proposal recommended
by our board of directors.
We propose to create two new classes of common stock called "AR-CombiMatrix
stock" and "AR-Acacia Technologies stock." AR-CombiMatrix stock is intended to
reflect separately the performance of our subsidiary CombiMatrix Corporation,
and to benefit from its research and development efforts. AR-Acacia Technologies
stock is intended to reflect separately the performance of our media technology
business and to benefit from the licensing of its technology and sale of its
products. Although the AR-CombiMatrix stock and the AR-Acacia Technologies stock
are intended to reflect the performance of different business groups within our
company, they are both classes of common stock of Acacia Research Corporation
and are not stock issued by the respective groups.
If stockholders approve the recapitalization, each share of your existing
common stock would be converted into approximately 0.5582 of a share of
AR-CombiMatrix stock (subject to adjustment as described in this proxy
statement) and one share of AR-Acacia Technologies stock.
At the special meeting, you will also be asked to consider and approve a
merger proposal pursuant to which we would acquire the outstanding shares of
CombiMatrix Corporation not already held by us, and CombiMatrix Corporation
would become our wholly-owned subsidiary. In the merger, the stockholders of
CombiMatrix Corporation other than Acacia Research would receive one share of
AR-CombiMatrix stock for each share of CombiMatrix Corporation common stock
which they own immediately prior to the merger.
At the special meeting, you will also be asked to consider and approve
related proposals to adopt separate new stock incentive plans for each business
group.
We have applied to list the AR-CombiMatrix stock and the AR-Acacia
Technologies stock on the NASDAQ National Market under the symbols "CBMX" and
"ACTG", respectively.
Our board unanimously recommends that you vote in favor of the
recapitalization proposal, the merger proposal and the adoption of the new stock
incentive plans. None of the proposals will be implemented unless all proposals
are approved. This proxy statement and prospectus provides you with detailed
information about the proposals. We encourage you to read this entire document
carefully.
/S/ PAUL R. RYAN
Paul R. Ryan
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
THE RECAPITALIZATION, MERGER AND RELATED PROPOSALS INVOLVE CERTAIN RISKS.
PLEASE READ THE "RISK FACTORS" BEGINNING ON PAGE 41.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROXY STATEMENT AND PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
This proxy statement and prospectus is dated November 8, 2002 and is first
being mailed to stockholders on or about November 12, 2002.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
the materials we file at the SEC's Public Reference Room at 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the Public Reference Rooms. Our Commission
filings are also available to the public from the SEC's World Wide Web site on
the Internet at HTTP://WWW.SEC.GOV. This site contains reports, proxy and
information statements and other information regarding issuers that file
electronically with the SEC. You may also read and copy this information at the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
We maintain a site on the Internet at HTTP://WWW.ACACIARES.COM. The
information contained in our website is not part of this prospectus/proxy
statement and you should not rely on it in deciding whether or not to vote in
favor of the proposals set forth herein.
The SEC allows us to "incorporate by reference" the information that we
file with the SEC. This means that we can disclose important information to you
by referring you to another document filed separately with the SEC under the
Securities Exchange Act of 1934 (the "Exchange Act"). The information
incorporated by reference is deemed to be part of this prospectus/proxy
statement, except for any information superseded by information in this
prospectus. We have filed with the SEC and incorporate by reference:
o our annual report on Form 10-K for the fiscal year ended December 31,
2001;
o our current report on Form 8-K, dated June 11, 2002, filed with the
SEC on June 11, 2002;
o our quarterly report on Form 10-Q for the quarter ended March 31,
2002; and
o our quarterly report on Form 10-Q for the quarter ended June 30, 2002.
Any documents we file pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this prospectus/proxy statement until the special
meeting will automatically be deemed to be incorporated by reference in this
prospectus/proxy statement and to be part hereof from the date of filing those
documents. Any statement contained in this prospectus/proxy statement or in a
document incorporated by reference shall be deemed to be modified or superseded
for all purposes to the extent that a statement contained in this
prospectus/proxy statement or in any other document which is also incorporated
by reference modifies or supersedes that statement.
We will provide without charge to each person to whom a copy of this
prospectus/proxy statement is delivered, upon such person's written or oral
request, a copy of any and all of the information incorporated by reference in
this prospectus/proxy statement, other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference into the information
that this prospectus incorporates. Request should be directed to:
Acacia Research Corporation
500 Newport Center Drive
Newport Beach, California 92660
Attention: Secretary
Telephone: (949) 480-8300
TO OBTAIN TIMELY DELIVERY, YOU MUST MAKE THIS REQUEST NO LATER THAN FIVE
BUSINESS DAYS BEFORE DECEMBER 11, 2002, THE DATE OF THE SPECIAL MEETING.
You should rely only on the information provided in this prospectus/proxy
statement (including the appendices) in considering how to vote your shares on
the proposals discussed herein. We have authorized no one to provide you with
different information. You should not assume that the information in this
prospectus/proxy statement is accurate as of any date other than the date on the
front of this document.
ACACIA RESEARCH CORPORATION
500 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA 92660
----------
NOTICE OF SPECIAL MEETING
OF STOCKHOLDERS
TO BE HELD ON DECEMBER 11, 2002
----------
November 8, 2002
Notice is hereby given that a special meeting of the stockholders of Acacia
Research Corporation will be held at 1:30 p.m. on December 11, 2002, at 610
Newport Center Drive, Suite 130, Newport Beach, California 92660. The special
meeting will be held for the following purposes and to transact such other
business as may properly come before the meeting or any postponements or
adjournments thereof:
1. To consider and act upon a proposal to amend our certificate of
incorporation to create two new classes of common stock called "AR-CombiMatrix
stock" and "AR-Acacia Technologies stock" and to divide each outstanding share
of our common stock into a fraction of a share of AR-CombiMatrix stock and one
share of AR-Acacia Technologies stock.
2. To consider and act upon a proposal to approve and adopt an agreement
and plan of reorganization pursuant to which (a) CombiMatrix Corporation will
merge with and into a subsidiary which we have formed for this purpose and (b)
we will issue to the stockholders of CombiMatrix Corporation, other than Acacia
Research Corporation, one share of AR-CombiMatrix stock for each share of
CombiMatrix Corporation common stock that is outstanding on the effective date
of the merger and held by such stockholder.
3. To consider and act upon a proposal to adopt the 2002 CombiMatrix Stock
Incentive Plan.
4. To consider and act upon a proposal to adopt the 2002 Acacia
Technologies Stock Incentive Plan.
Information relating to these proposals is contained in the attached proxy
statement and prospectus. None of the proposals will be implemented unless all
four are approved by our stockholders.
Our board of directors has fixed the close of business on November 1, 2002
as the record date for the determination of stockholders entitled to notice of
and to vote at the special meeting. Only stockholders of record at the close of
business on that date will be entitled to vote at the meeting. A list of those
stockholders will be available for inspection before or at the meeting at the
request of a stockholder. Our transfer books will not be closed.
By order of the Board of Directors,
/S/ ROBERT A. BERMAN
Robert A. Berman
SENIOR VICE PRESIDENT OF BUSINESS DEVELOPMENT,
GENERAL COUNSEL AND SECRETARY
TABLE OF CONTENTS
-----------------
PAGE
----
QUESTIONS AND ANSWERS................................................................................1
PROXY STATEMENT SUMMARY..............................................................................5
CONSOLIDATING SELECTED FINANCIAL INFORMATION........................................................20
RISK FACTORS........................................................................................41
Risks Relating to the Recapitalization.......................................................41
Risks Relating to the Merger.................................................................48
Risks Relating to the CombiMatrix Group......................................................50
Risks Relating to the Acacia Technologies Group..............................................56
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS...................................................60
STOCKHOLDERS MEETING................................................................................61
THE RECAPITALIZATION PROPOSAL.......................................................................65
Description of the Recapitalization..........................................................65
Background of and Reasons for the Recapitalization Proposal..................................65
Recommendation of Our Board of Directors.....................................................69
Opinion of A.G. Edwards......................................................................69
Management and Allocation Policies...........................................................74
Policies Subject to Change Without Stockholder Approval......................................74
Allocation of Assets.........................................................................75
Fiduciary and Management Responsibilities....................................................75
Dividend Policy..............................................................................76
Financing Activities.........................................................................76
Inter-Group Contracts and Access to Technology and Know-How..................................77
Review of Corporate Opportunities............................................................77
Financial Statements; Allocation Matters.....................................................77
Taxes........................................................................................78
Common Stock Ownership of Directors and Senior Officers......................................78
Description of AR-CombiMatrix Stock and AR-Acacia Technologies Stock.........................78
Material United States Federal Income Tax Consequences of the Recapitalization...............88
Stock Exchange Listings......................................................................91
Exchange Procedures..........................................................................91
Stock Transfer Agent and Registrar...........................................................91
Financial Advisors...........................................................................91
Effect on Existing Options and Warrants......................................................92
No Dissenters' Rights with Respect to Recapitalization Proposal..............................92
No Regulatory Approvals......................................................................92
THE MERGER PROPOSAL.................................................................................93
Description of the Merger....................................................................93
Issuance of Shares; Ownership Interests......................................................93
Background of and Reasons for the Merger.....................................................94
Recommendation of Our Board of Directors.....................................................94
Table Regarding Security Ownership of Certain Beneficial Owners and Management...............95
Accounting Treatment.........................................................................96
Material United States Federal Income Tax Consequences of the Merger.........................97
Federal Securities Laws Consequences; Stock Transfer Restriction Agreements.................101
i
PAGE
----
PRINCIPAL PROVISIONS OF THE MERGER AGREEMENT.......................................................102
General Description of the Merger...........................................................102
Effective Time..............................................................................102
Conversion of Shares and Consideration to Be Received in the Merger.........................102
Exchange of CombiMatrix Corporation Stock Certificates......................................102
Treatment of CombiMatrix Corporation Stock Options..........................................103
Treatment of CombiMatrix Corporation Warrants...............................................103
Treatment of CombiMatrix Corporation Benefits and Other Employee Matters....................103
Representations and Warranties..............................................................103
Principal Covenants.........................................................................104
Conditions to the Consummation of the Merger................................................104
Termination.................................................................................106
Effect of Termination.......................................................................107
Amendments and Waivers......................................................................107
No Relief from Liability for Willful Breach.................................................107
ACACIA RESEARCH CORPORATION........................................................................108
Business....................................................................................108
Management..................................................................................110
COMBIMATRIX GROUP..................................................................................114
Business....................................................................................114
Management..................................................................................129
ACACIA TECHNOLOGIES GROUP..........................................................................133
Business....................................................................................133
Management..................................................................................137
ACACIA RESEARCH CORPORATION MANAGEMENT'S DISCUSSION AND ANALYSIS...................................140
COMBIMATRIX GROUP MANAGEMENT'S DISCUSSION AND ANALYSIS.............................................160
ACACIA TECHNOLOGIES GROUP MANAGEMENT'S DISCUSSION AND ANALYSIS.....................................178
ADOPTION OF 2002 COMBIMATRIX STOCK INCENTIVE PLAN AND 2002 ACACIA
TECHNOLOGIES STOCK INCENTIVE PLAN...........................................................192
OTHER ITEMS........................................................................................200
INDEX TO FINANCIAL INFORMATION.....................................................................F-1
Acacia Research Corporation - Accountants' Report and Financial Statements..................F-2
CombiMatrix Corporation - Accountants' Report and Financial Statements.....................F-53
Acacia Technologies Group - Accountants' Report and Financial Statements...................F-76
CombiMatrix Group - Accountants' Report and Financial Statements...........................F-99
ANNEXES
Annex A Agreement and Plan of Reorganization
Annex B Proposed Restated Certificate of Incorporation
Annex C Proposed Common Stock Policies
Annex D 2002 CombiMatrix Stock Incentive Plan
Annex E 2002 Acacia Technologies Stock Incentive Plan
Annex F Tax Opinion of PricewaterhouseCoopers LLP
Annex G Opinion of A.G. Edwards & Sons, Inc.
ii
QUESTIONS AND ANSWERS
THE PROPOSALS
1. WHY AM I RECEIVING THIS PROXY STATEMENT?
We are distributing this proxy statement and prospectus to you in
connection with a special meeting of our stockholders. At the special meeting,
you will be asked to consider and vote upon the following proposals:
o RECAPITALIZATION PROPOSAL: A proposal to amend and restate our
certificate of incorporation to create two new classes of common
stock, called "AR-CombiMatrix stock" and "AR-Acacia Technologies
stock", and to divide each outstanding share of our existing common
stock into a fraction of a share of AR-CombiMatrix stock and one share
of AR-Acacia Technologies stock.
o MERGER PROPOSAL: A proposal to approve the merger agreement with
CombiMatrix Corporation, the merger of CombiMatrix Corporation into a
wholly owned subsidiary of Acacia Research and the issuance of shares
of AR-CombiMatrix stock to the stockholders of CombiMatrix Corporation
other than Acacia Research in connection with the merger.
o ADOPTION OF 2002 COMBIMATRIX STOCK INCENTIVE PLAN: A proposal to adopt
the 2002 CombiMatrix Stock Incentive Plan to provide for the granting
of stock awards and options in AR-CombiMatrix stock.
o ADOPTION OF 2002 ACACIA TECHNOLOGIES STOCK INCENTIVE PLAN: A proposal
to adopt the 2002 Acacia Technologies Stock Incentive Plan to provide
for the granting of stock awards and options in AR-Acacia Technologies
stock.
If any of these proposals is not approved, we will not implement any of the
other proposals.
2. IF THE PROPOSED RECAPITALIZATION WERE APPROVED, WHAT WOULD BE THE NEW
CLASSES OF COMMON STOCKS?
We refer to the two new classes of common stocks as AR-CombiMatrix stock
and AR-Acacia Technologies stock. We refer to the AR-CombiMatrix stock and the
AR-Acacia Technologies stock together as the "common stock."
o The AR-CombiMatrix stock is intended to reflect the separate
performance of our subsidiary CombiMatrix Corporation. We refer to
this business group, or division, as the "CombiMatrix group."
o The AR-Acacia Technologies stock is intended to reflect the separate
performance of our media technology business. We refer to this
business group, or division, as the "Acacia Technologies group."
All of our existing businesses will be attributed to the two groups.
Although the two classes of stock are intended to reflect the separate
performances of the respective groups, we cannot assure you that the market
values of the two classes will in fact reflect the performance of the respective
groups as we intend because holders will not have a separate and exclusive
interest in the respective groups. Holders will continue to be common
stockholders of Acacia Research and will not hold a direct or exclusive interest
in either group. As such, they will be subject to all risks associated with an
investment in Acacia Research and all of our businesses, assets and liabilities.
3. HOW WILL I BENEFIT FROM THE PROPOSED RECAPITALIZATION?
You will be able to separately value the AR-CombiMatrix stock and the
AR-Acacia Technologies stock. You will also be able to invest and trade in
either or both stocks depending on your investment objectives.
-1-
4. WHAT KIND OF FINANCIAL INFORMATION WILL I RECEIVE IN THE FUTURE?
You will continue to receive our consolidated financial information for
Acacia Research as a whole. In addition, you will receive separate audited
financial statements and other business and financial information, including
separate management's discussion and analysis, for both the CombiMatrix group
and the Acacia Technologies group. The financial statements for the groups
should be read in conjunction with the consolidated financial information for
Acacia Research.
5. WHAT WILL HAPPEN TO MY EXISTING SHARES OF ACACIA RESEARCH IF THE
RECAPITALIZATION TAKES PLACE AS PROPOSED?
In the recapitalization, each outstanding share of Acacia Research common
stock will be converted into a fraction of a share of AR-CombiMatrix stock and
one share of AR-Acacia Technologies stock.
The fraction of a share of AR-CombiMatrix stock into which each outstanding
share of Acacia Research common stock will be converted will be equal to the
quotient obtained by dividing (a) the number of shares of CombiMatrix
Corporation common stock owned by Acacia Research immediately prior to the
effective time of the merger by (b) the total number of shares of Acacia
Research common stock issued and outstanding immediately prior to the effective
time. As of November 1, 2002, this fraction was 0.5582.
The percentage of the issued and outstanding shares of AR-CombiMatrix stock
that will be received by the holders of Acacia Research common stock will be
equal to the percentage of the issued and outstanding shares of CombiMatrix
Corporation common stock held by Acacia Research immediately prior to the
effective time of the merger. As of November 1, 2002, this percentage was 47.7%.
6. WILL THE RECAPITALIZATION PROPOSAL RESULT IN A CHANGE OF CONTROL OF ACACIA
RESEARCH?
No.
7. WILL THE RECAPITALIZATION PROPOSAL RESULT IN A DISTRIBUTION OR SPIN-OFF?
No. This proposal will not result in a distribution or spin-off of our
assets or liabilities. Holders of AR-CombiMatrix stock and AR-Acacia
Technologies stock will continue to be stockholders of a single company and
subject to all risks associated with an investment in Acacia Research and all of
our businesses, assets and liabilities.
8. WHAT VOTING RIGHTS WILL I HAVE AFTER THE RECAPITALIZATION?
Holders of AR-CombiMatrix stock and AR-Acacia Technologies stock will vote
together as a single class (except in certain limited circumstances). Each share
of AR-CombiMatrix stock will entitle the holder to one vote. Each share of
AR-Acacia Technologies stock will entitle the holder, for any particular vote,
to a number of votes equal to the average market value of a share of AR-Acacia
Technologies stock divided by the average market value of a share of
AR-CombiMatrix stock over a specified 20-trading day period ending on the 10th
trading day prior to the record date for determining the stockholders entitled
to vote.
9. WHEN WILL YOU IMPLEMENT THE RECAPITALIZATION AND MERGER PROPOSALS?
We plan to implement the recapitalization and merger proposals as soon as
practicable after stockholder approval.
10. SHOULD I SEND IN MY STOCK CERTIFICATES NOW?
No. We will send written instructions to you on how to exchange your stock
certificates for new stock certificates after the recapitalization is completed.
-2-
THE SPECIAL MEETING
11. WHEN AND WHERE WILL THE SPECIAL MEETING BE HELD?
We will hold the special meeting at 1:30 p.m. on December 11, 2002, at 610
Newport Center Drive, Suite 130, Newport Beach, California 92660.
12. WHO IS ENTITLED TO VOTE AT THE SPECIAL MEETING?
You are entitled to vote at the special meeting if you owned shares of our
common stock as of the record date for the special meeting, which was the close
of business on November 1, 2002. On November 1, 2002, there were 19,640,808
shares of our common stock issued and outstanding. For each share of our common
stock owned on that date, you will have one vote at the special meeting. The
shares of existing common stock held in our treasury will not be entitled to
vote or counted in determining the number of outstanding shares.
13. HOW DO I VOTE?
After you have carefully read this proxy statement, mail your signed proxy
card in the enclosed return envelope as soon as possible so that your shares may
be represented at the special meeting of stockholders. You may also attend the
meeting in person instead of submitting a proxy. If your shares are held in
"street name"' by your broker, your broker will vote your shares only if you
provide instructions on how to vote. You should follow the directions provided
by your broker regarding how to instruct your broker to vote your shares.
14. CAN I CHANGE MY VOTE AFTER MAILING MY PROXY?
Yes. You may change your vote by delivering a signed notice of revocation
or a later-dated, signed proxy card to the corporate secretary of Acacia
Research before the special meeting of stockholders or by attending the special
meeting of stockholders and voting in person.
15. WHAT IS A "QUORUM" AT THE SPECIAL MEETING?
A "quorum" is a majority of the outstanding shares entitled to vote. The
shares may be present or represented by proxy. For the purposes of determining a
quorum, shares held by brokers or nominees will be treated as present even if
the broker or nominee does not have discretionary power to vote on a particular
matter or if instructions were never received from the beneficial owner. These
shares are called "broker non-votes." Abstentions will be counted as present for
quorum purposes.
16. WHAT VOTE IS REQUIRED TO APPROVE EACH PROPOSAL?
Amending our certificate of incorporation to create two new classes of
common stock and adopting the agreement and plan of reorganization relating to
the merger will each require the affirmative vote of a majority of our
outstanding common stock. Adopting the 2002 CombiMatrix Stock Incentive Plan and
the 2002 Acacia Technologies Stock Incentive Plan will each require the
affirmative vote of a majority of the shares of our common stock present or
represented and entitled to vote at the special meeting.
As of November 1, 2002, 2.2% of our outstanding common stock was owned by
our executive officers, directors and their affiliates. As of November 1, 2002,
47.7% of CombiMatrix Corporation's outstanding common stock was owned by Acacia
Research and its executive officers, directors and their affiliates and 10.0% by
CombiMatrix Corporation's executive officers, directors and their affiliates.
17. WHAT IF I DO NOT PROVIDE MY BROKER WITH INSTRUCTIONS ON HOW TO VOTE MY
SHARES?
If you do not provide your broker with instructions on how to vote your
"street name" shares, your broker will not be permitted to vote them, and the
shares will be considered "broker non-votes". However, the "street name" shares
will be considered present for quorum purposes. For these broker non-votes and
the merger proposal,
-3-
broker non-votes will have the effect of a "no" vote. For adopting the 2002
CombiMatrix Stock Incentive Plan and 2002 Acacia Technologies Stock Incentive
Plan, broker non-votes will be treated as not present and as not entitled to
vote and will have no effect on the result of the vote even though the same
shares would be considered present for the purpose of establishing a quorum and
would be considered as voting against the recapitalization proposal and the
merger proposal. You should therefore be sure to provide your broker with
instructions on how to vote your shares. Please check the voting form used by
your broker to see if it offers telephone or internet voting.
18. WHAT HAPPENS IF I ABSTAIN FROM VOTING?
Proxies marked "abstain" will be counted as shares present for the purpose
of determining the presence of a quorum, but for purposes of determining the
outcome of a proposal, shares represented by such proxies will not be treated as
affirmative votes. For all proposals, an abstention will have the effect of a
"no" vote.
-4-
PROXY STATEMENT SUMMARY
THIS SUMMARY, TOGETHER WITH THE "QUESTIONS AND ANSWERS" ON THE PRECEDING
PAGES, HIGHLIGHTS IMPORTANT SELECTED INFORMATION FROM THIS DOCUMENT. TO
UNDERSTAND THE RECAPITALIZATION, THE MERGER AND THE PROPOSED NEW STOCK INCENTIVE
PLANS FULLY AND FOR A MORE COMPLETE DESCRIPTION OF THE LEGAL TERMS OF THE
RECAPITALIZATION, THE MERGER AND THE PROPOSED NEW STOCK INCENTIVE PLANS, YOU
SHOULD CAREFULLY READ THIS ENTIRE DOCUMENT AND THE DOCUMENTS WE HAVE REFERRED
YOU TO.
ACACIA RESEARCH CORPORATION
Our business consists of the businesses of the CombiMatrix group and the
Acacia Technologies group, each of which are described below. Our principal
executive offices are located at 500 Newport Center Drive, Newport Beach,
California 92660, and our telephone number is (949) 480-8300.
COMBIMATRIX GROUP
The CombiMatrix group is principally comprised of our subsidiary
CombiMatrix Corporation, which is engaged in the development of a proprietary
universal biochip with applications in the genomics, proteomics and
combinatorial chemistry markets. CombiMatrix Corporation's principal executive
offices are located at 6500 Harbour Heights Parkway, Mukilteo, Washington 98275,
and its telephone number is (425) 493-2000.
For the fiscal year ended December 31, 2001, the CombiMatrix group had net
revenues of $456,000 and a loss from continuing operations of $46.8 million
before amounts attributable to minority interests of $18.8 million. The
CombiMatrix group's loss from continuing operations after amounts attributable
to minority interests was $28.0 million for the fiscal year ended December 31,
2001. The CombiMatrix group's total assets at December 31, 2001 were $48.0
million.
For the six months ended June 30, 2002, the CombiMatrix group had net
revenues of $687,000 and a loss from continuing operations of $15.9 million
before amounts attributable to minority interests of $6.4 million. The
CombiMatrix group's loss from continuing operations after amounts attributable
to minority interests was $9.5 million for the six months ended June 30, 2002.
The CombiMatrix group's total assets at June 30, 2002 were $37.7 million.
ACACIA TECHNOLOGIES GROUP
The Acacia Technologies group is principally comprised of our media
technologies business and is engaged in the development, licensing and
protection of its intellectual property and proprietary technologies in the
media technologies industry.
For the fiscal year ended December 31, 2001, the Acacia Technologies group
had net revenues of $24.2 million and net income from continuing operations of
$7.0 million before amounts attributable to minority interests of $1.3 million.
Net income from the Acacia Technologies group's continuing operations after
amounts attributable to minority interests was $5.8 million. The Acacia
Technologies group's total assets at December 31, 2001 were $62.9 million.
For the six months ended June 30, 2002, the Acacia Technologies group
recorded a net loss from continuing operations of $6.6 million. Amounts
attributable to minority interests were not material for the six months ended
June 30, 2002. The Acacia Technologies group's total assets at June 30, 2002
were $55.3 million.
-5-
THE RECAPITALIZATION PROPOSAL
REASONS FOR THE RECAPITALIZATION PROPOSAL
We believe that the recapitalization proposal will have the following
benefits:
o increase in market awareness of our two distinct businesses;
o attraction of industry-specific investors and improved analyst
coverage by industry specific institutional analysts;
o creation of two new acquisition currencies to help us pursue strategic
opportunities;
o realization of the potential values of our two distinct businesses;
and
o increased liquidity and financing flexibility with respect to our
existing businesses.
RISK FACTORS RELATED TO RECAPITALIZATION PROPOSAL
When evaluating the recapitalization proposal, you should be aware that
there are many risks, including:
o the risks associated with an investment in a single company and all of
our businesses, assets and liabilities;
o limited separate stockholder rights granted to holders of each class
of common stock;
o risks associated with the relative voting power of the two classes of
common stock which will fluctuate based on their relative average
market values;
o the lack of legal precedent with respect to the fiduciary duties of
the board of directors of a company having two classes of common
stock, the rights of which are defined by reference to separate
businesses of the company;
o the potential for stockholders of each class of common stock to have
diverging or conflicting interests;
o the possibility that either class of stock, or both, will not meet the
requirements for listing on the Nasdaq National Market, which could
adversely affect the liquidity and share price of the stock;
o the ability of our board of directors to change management and
allocation policies without stockholder approval;
o the ability to transfer funds between the groups;
o the ability of our board of directors to allocate financing costs
between groups that do not reflect the separate borrowing costs of the
groups;
o the possibility that one group could be charged a greater portion of
the total corporate tax liability;
o limits on consideration to be received upon disposition of assets of a
group;
o the effects of our capital structure and variable vote per share on
potential acquisitions of a group or class of common stock;
o the effect of market values of a class of common stock on stockholder
rights;
-6-
o no assurances as to the market price or liquidity of the
AR-CombiMatrix stock or the AR-Acacia Technologies stock following the
recapitalization; and
o the lack of legal precedent with respect to the tax treatment of the
recapitalization and the new classes of common stock.
COMPARISON OF EXISTING COMMON STOCK WITH AR-COMBIMATRIX STOCK AND AR-ACACIA
TECHNOLOGIES STOCK
If the recapitalization proposal is approved and the merger is consummated,
our common stock will consist of two classes: AR-CombiMatrix stock and AR-Acacia
Technologies stock. The terms of the two new classes of common stock are set
forth in the proposed restated certificate of incorporation, which is attached
as ANNEX B to this document. We encourage you to read the proposed restated
certificate carefully in its entirety.
The following table provides a comparison of our existing common stock and
the AR-CombiMatrix stock and the AR-Acacia Technologies stock. You should keep
in mind that the AR-CombiMatrix stock and the AR-Acacia Technologies stock are
both classes of common stock of Acacia Research, and are not stock issued by
each respective group. Holders of a class of stock will not have a separate,
direct legal interest in the assets attributed to the respective group. As a
result, you will continue to be subject to all of the risks associated with an
investment in Acacia Research and all of our businesses, assets and liabilities.
Financial effects from one group that affect our consolidated results of
operations or financial condition could, if significant, affect the results of
operations or financial condition of the other group.
-7-
EXISTING THE RECAPITALIZATION PROPOSAL
COMMON -------------------------------------------------------------------------
STOCK AR-COMBIMATRIX STOCK AR-ACACIA TECHNOLOGIES STOCK
-------------------------------- ----------------------------------- -----------------------------------
DIVIDENDS: We have not paid any cash We currently do not intend to pay We currently do not intend to pay
dividends on our existing cash dividends on the cash dividends on the AR-Acacia
commonstock and we AR-CombiMatrix stock. Technologies stock.
currently do not intend to
pay cash dividends on
our existing common stock.
Any future dividends on our Any future dividends on the Any future dividends on the
existing common stock will be AR-CombiMatrix stock will be paid AR-Acacia Technologies stock will
paid at the discretion of our at the discretion of our board of be paid at the discretion of our
board of directors based directors based primarily upon the board of directors based primarily
primarily upon the financial financial condition, results of upon the financial condition,
condition, results of operations operations and business results of operations and business
and business requirements of requirements of the CombiMatrix requirements of the Acacia
Acacia Research. Dividends group and Acacia Research as a Technologies group and Acacia
cannot exceed the assets from whole. Dividends can not exceed the Research as a whole. Dividends can
which we can legally pay lesser of (1) our funds from which not exceed the lesser of (1) our
dividends under Delaware law. we can legally pay dividends under funds from which we can legally pay
Delaware law and (2) an amount dividends under Delaware law and
similar to the funds from which the (2) an amount similar to the funds
CombiMatrix group could legally pay from which the Acacia Technologies
dividends under Delaware law as a group could legally pay dividends
separate corporation. under Delaware law if it were a
separate corporation.
VOTING RIGHTS: One vote per share. The AR-CombiMatrix stock will have Each share of AR-Acacia
one vote per share. Technologies stock will have a
variable vote equal to the ratio of
the average market values of one
share of AR-Acacia Technologies
stock to one share of
AR-CombiMatrix stock calculated
over a 20-trading day period ending
on the tenth trading day prior to
each record date for a
stockholders' meeting or consent.
Accordingly, a share of AR-Acacia
Technologies stock may have more
than, less than or exactly one vote
per share.
-8-
EXISTING THE RECAPITALIZATION PROPOSAL
COMMON -------------------------------------------------------------------------
STOCK AR-COMBIMATRIX STOCK AR-ACACIA TECHNOLOGIES STOCK
-------------------------------- ----------------------------------- -----------------------------------
The holders of AR-CombiMatrix stock The holders of AR-Acacia
and AR-Acacia will generally vote Technologies stock and
together as a single stock will AR-CombiMatrix Technologies stock
generally vote together as a will generally vote together as a
single class. In limited single class. In limited
circumstances, such as a proposed circumstances, such as a proposed
change limited circumstances, such change limited circumstances, such
as a proposed change in the rights as a proposed change in the rights
in the rights of a class of stock, in the rights of a class of stock,
holders of one or both of a class holders of one or both of a class
of stock, holders of one or both of stock, holders of one or both
classes of common classes of common classes of common classes of common
stock may be entitled under stock may be entitled under
Delaware law or stock may be Delaware law or stock may be
entitled under Delaware law or entitled under Delaware law or
under stock under stock exchange under stock under stock exchange
regulations to vote as a separate regulations to vote as a separate
class. class.
RIGHTS ON SALE None. If we sell all or substantially all If we sell all or substantially all
OF ALL OR of the properties and assets of the properties and assets
SUBSTANTIALLY attributed to the CombiMatrix attributed to the Acacia
ALL ASSETS OF A group, we must either (1) Technologies group, we must either
GROUP: distribute through a dividend or (1) distribute through a dividend
redemption to holders of or redemption to holders of
AR-CombiMatrix stock an amount AR-Acacia Technologies stock an
equal to the net proceeds of the amount equal to the net proceeds of
sale, or (2) convert each share of the sale, or (2) convert each share
AR-CombiMatrix stock into a number of AR-Acacia Technologies stock
of shares of AR-Acacia Technologies into a number of shares of
stock at a 10% premium over the AR-CombiMatrix stock at a 10%
then current value. We may, but premium over the then current
will not be required to, distribute value. We may, but will not be
the net proceeds or convert the required to, distribute the net
AR-CombiMatrix stock if we receive proceeds or convert the AR-Acacia
in the sale primarily equity Technologies stock if we receive in
securities of the acquirer or its the sale primarily equity
parent and it is primarily engaged securities of the acquirer or its
in one or more businesses similar parent and it is primarily engaged
or complementary to the business of in one or more businesses similar
the CombiMatrix group. or complementary to the business of
the Acacia Technologies group.
CONVERSION AT None. We may, at any time, convert each We may, at any time, convert each
OPTION OF share of AR-CombiMatrix stock into share of AR-Acacia Technologies
ACACIA a number of shares of AR-Acacia stock into a number of shares of
RESEARCH: Technologies stock at a 10% premium AR-CombiMatrix stock at a 10%
over the average market values of premium over the average market
such shares. values of such shares.
REDEMPTION IN None. We may redeem the AR-CombiMatrix We may redeem the AR-Acacia
EXCHANGEFOR stock for all of the shares of the Technologies stock for all of the
STOCK OF common stock of one or more of our shares of the common stock of one
SUBSIDIARY: wholly owned subsidiaries that hold or more of our wholly owned
all of the assets and liabilities subsidiaries that hold all of the
attributed to the CombiMatrix assets and liabilities attributed
group. to the Acacia Technologies group.
-9-
EXISTING THE RECAPITALIZATION PROPOSAL
COMMON -------------------------------------------------------------------------
STOCK AR-COMBIMATRIX STOCK AR-ACACIA TECHNOLOGIES STOCK
-------------------------------- ----------------------------------- -----------------------------------
LIQUIDATION: If we are liquidated, holders of If we are liquidated, holders of If we are liquidated, holders of
our existing common stock will AR-CombiMatrix stock will be AR-Acacia Technologies stock will
be entitled to receive our net entitled to a portion of any assets be entitled to a portion of any
assets remaining for remaining for distribution to assets remaining for distribution
distribution to holders of holders of common stock on a per to holders of common stock on a per
common stock. share basis in proportion to the share basis in proportion to the
liquidation units per share of liquidation units per share of
AR-CombiMatrix stock.Each share of AR-Acacia Technologies stock. Each
AR-CombiMatrix stock will have one share of AR-Acacia Technologies
liquidation unit. stock will have a number of
liquidation units equal to the
ratio of the average market values
of one share of AR-Acacia
Technologies stock to one share of
AR-CombiMatrix stock. This ratio
will be determined approximately
two months after the
recapitalization.
-10-
HOW EACH NEW CLASS OF STOCK WILL REFLECT THE PERFORMANCE OF THE RESPECTIVE
GROUP
Each new class of stock is designed to reflect the financial performance of
the respective group, rather than the performance of Acacia Research as a whole.
The chief mechanisms intended to cause the AR-CombiMatrix stock and the
AR-Acacia Technologies stock to reflect the financial performance of the
respective group are provisions in our proposed restated certificate of
incorporation governing dividends and distributions to each class of stock.
Under these provisions, we will:
o factor the assets and liabilities and income or losses attributable to
the respective group into the determination of the amount available to
pay dividends, if any, on the shares issued for the respective group;
and
o require Acacia Research to exchange, redeem or distribute a dividend
on the stock of a group if all or substantially all of the assets
allocated to the respective group are sold to a third party.
Hence, the market value of each new class of stock will reflect investors'
expectations to participate in the earnings, growth and profits of their
respective group through potential payment of dividends and distributions upon a
sale of the group's assets. We cannot assure you, however, that the market
values of AR-CombiMatrix stock and AR-Acacia Technologies stock will in fact
reflect the performance of the CombiMatrix group and the Acacia Technologies
group as we intend because holders of these stocks will not hold a direct or
exclusive interest in the separate groups. In addition, we cannot assure you
that we will ever pay dividends on the AR-CombiMatrix stock or the AR-Acacia
Technologies stock. To date, we have not paid cash dividends on our existing
common stock and do not anticipate paying cash dividends on the AR-CombiMatrix
stock or the AR-Acacia Technologies stock for the foreseeable future. Future
dividends, if any, on the AR-CombiMatrix stock and the AR-Acacia Technologies
stock will be payable when, as and if declared by our board of directors.
LISTING OF SHARES
Our existing common stock is listed on the NASDAQ National Market under the
symbol "ACRI". We have applied for the AR-CombiMatrix stock and AR-Acacia
Technologies stock to be listed on the NASDAQ National Market under the symbols
"CBMX" and "ACTG", respectively. There is a risk that even if the shares are
listed on the NASDAQ National Market, the shares may not continue to qualify for
listing on the NASDAQ National Market if the trading prices do not meet minimum
requirements. See below "Risk Factors - The AR-CombiMatrix stock might not
qualify for listing on the NASDAQ National Market, which could adversely affect
its liquidity and price". As soon as the recapitalization is effective, our
existing common stock will be de-listed.
MANAGEMENT AND ALLOCATION POLICIES
We have established policies designed to accomplish the fundamental
objective of the recapitalization proposal, which is to separate the business
and operations of the Acacia Technologies group from those of the CombiMatrix
group. These policies establish guidelines to help us allocate debt, corporate
overhead, interest, taxes and other shared activities between the two groups on
an objective basis and, generally, to ensure that transactions between the
CombiMatrix group and the Acacia Technologies group are made on terms that
approximate terms that could be obtained from unaffiliated third parties.
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE
RECAPITALIZATION
We believe, and we have received an opinion from PricewaterhouseCoopers LLP
to the effect that, no gain or loss will be recognized by Acacia Research or you
for U.S. federal income tax purposes as a result of the recapitalization except
with respect to cash received by you instead of a fractional share of
AR-CombiMatrix stock. However, there are no court decisions or other authorities
bearing directly on transactions similar to the recapitalization proposal. In
addition, the Internal Revenue Service has announced that it will not issue
rulings on the characterization of stock with characteristics similar to the
AR-CombiMatrix stock and the AR-Acacia Technologies stock. Therefore, the tax
treatment of the recapitalization is subject to some uncertainty.
-11-
Tax matters are very complicated and the tax consequences of the
recapitalization to you will depend on the facts of your own situation. We urge
you to consult your tax advisors for a full description of the tax consequences
of the recapitalization to you.
NO DISSENTERS' RIGHTS REGARDING RECAPITALIZATION PROPOSAL
Stockholders of Acacia Research will not have any dissenters' or appraisal
rights with respect to the proposed recapitalization.
NO REGULATORY APPROVALS
No state or federal regulatory approvals are required for the
recapitalization.
-12-
THE MERGER PROPOSAL
REASONS FOR THE MERGER
We believe that the merger will:
o facilitate the implementation of the recapitalization proposal;
o provide liquidity to the stockholders of CombiMatrix Corporation;
o enable us to benefit from a management and operational structure that
can leverage our strength while retaining operating flexibility;
o allow the groups to leverage synergies of an integrated management
team, streamlined operations and strengthened infrastructure; and
o permit certain major decisions regarding the CombiMatrix group to be
made more quickly.
However, you should note that achieving these objectives is subject to
particular risks which we discuss below in the section entitled "Risk Factors."
RISK FACTORS RELATED TO THE MERGER PROPOSAL
When evaluating the merger proposal, you should be aware that there are
many risks, including:
o an exchange ratio that does not take into account any changes in the
market price of our stock or the CombiMatrix Corporation common stock;
o the risk that the merger will close despite material adverse changes
to us or to the CombiMatrix Corporation;
o potential adverse effects on our combined financial results;
o possible dilution as a result of change of control provisions in our
option plans;
o risks associated with fluctuations in operating results, unpredictable
revenues and stock price volatility;
o the development stage nature of the CombiMatrix group and its unproven
technology;
o no assurances regarding the ability of either group or the combined
company to obtain additional capital, if needed; and
o the expiration of the Acacia Technologies group's patent on the V-chip
technology.
WHAT OUR STOCKHOLDERS WILL HOLD AFTER THE MERGER
Holders of Acacia Research common stock will not receive any shares in
connection with the merger. However, as a result of the recapitalization, each
share of our common stock will be split into a fraction of a share of
AR-CombiMatrix stock and one share of AR-Acacia Technologies stock. Based on the
issued outstanding shares of CombiMatrix Corporation common stock as of November
1, 2002, the percentage interest in AR-CombiMatrix stock to be received by our
stockholders will be approximately 47.7%.
We will not issue any fractional shares of AR-CombiMatrix stock or
AR-Acacia Technologies stock in the recapitalization. Instead, you will receive
cash for any fractional share of AR-CombiMatrix stock owed to you in an amount
based upon the trading price of AR-CombiMatrix stock following the
recapitalization.
-13-
WHAT COMBIMATRIX CORPORATION STOCKHOLDERS WILL HOLD AFTER THE MERGER
In the merger, CombiMatrix Corporation stockholders, other than Acacia
Research, will receive one share of the new AR-CombiMatrix stock for each share
of CombiMatrix Corporation common stock that they own immediately prior to the
effective time of the merger. Their percentage ownership interest in the issued
and outstanding shares of AR-CombiMatrix stock immediately after the effective
time of the merger will be the same as their percentage ownership interest in
the issued and outstanding shares of CombiMatrix Corporation common stock
immediately prior to the effective time of the merger. Based on the issued and
outstanding shares on November 1, 2002, this percentage interest would be
approximately 52.3%.
Based upon the number of shares of CombiMatrix Corporation common stock
outstanding on November 1, 2002, we will issue approximately 12,005,274 shares
of AR-CombiMatrix stock to CombiMatrix Corporation stockholders in the merger.
This number is subject to adjustment for any stock issuances by CombiMatrix
Corporation between November 1, 2002 and the effective time of the merger.
CombiMatrix Corporation stockholders should not send in their stock
certificates for exchange until instructed to do so after completion of the
merger.
COMPARISON OF EXISTING COMBIMATRIX CORPORATION COMMON STOCK WITH
AR-COMBIMATRIX STOCK
If the recapitalization proposal is approved and the merger is consummated,
CombiMatrix Corporation's common stock will be converted into AR-CombiMatrix
stock. The terms of the AR-CombiMatrix stock are set forth in the proposed
restated certificate of incorporation, which is attached as Annex B to this
document. We encourage you to read the proposed restated certificate carefully
in its entirety.
The following table provides a comparison of CombiMatrix Corporation's
existing common stock and the AR-CombiMatrix stock. You should keep in mind that
the AR-CombiMatrix stock is a class of common stock of Acacia Research, and is
not stock issued by the CombiMatrix group. Holders of AR-CombiMatrix stock will
not have a separate, direct legal interest in the assets attributed to the
CombiMatrix group. As a result, holders of CombiMatrix Corporation's common
stock will become subject to all of the risks associated with an investment in
Acacia Research and all of its businesses, assets and liabilities. Financial
effects from one group that affect Acacia Research's consolidated results of
operations or financial condition could, if significant, affect the results of
operations or financial condition of the other group.
-14-
THE MERGER PROPOSAL
-----------------------------------------------------------------------------------
EXISTING
COMBIMATRIX CORPORATION
COMMON STOCK AR-COMBIMATRIX STOCK
---------------------------------------- ----------------------------------------
LIQUIDITY: Shares of CombiMatrix Corporation's We have applied to list the
common stock are not publicly traded on AR-CombiMatrix stock on the NASDAQ
any exchange or stock market and are not National Market under the symbol "CBMX"
registered with the Securities and and are registering the issuance of the
Exchange Commission. AR-CombiMatrix stock with the Securities
and Exchange Commission pursuant to the
registration statement of which this
proxy statement and prospectus is a
part.
DIVIDENDS: CombiMatrix Corporation has not paid any We currently do not intend to pay cash
cash dividends on its existing common dividends on the AR-CombiMatrix stock.
stock and CombiMatrix Corporation
currently does not intend to pay cash
dividends on its existing common stock.
Any future dividends on CombiMatrix Any future dividends on the
Corporation's existing common stock will AR-CombiMatrix stock will be paid at the
be paid at the discretion of CombiMatrix discretion of our board of directors
Corporation's board of directors based based primarily upon the financial
primarily upon the financial condition, condition, results of operations and
results of operations and business business requirements of the CombiMatrix
requirements of CombiMatrix Corporation. group and Acacia Research as a whole.
Dividends cannot exceed the assets from Dividends can not exceed the lesser of
which we can legally pay dividends under (1) our funds from which we can legally
Delaware law. pay dividends under Delaware law and (2)
an amount similar to the funds from
which the CombiMatrix group could
legally pay dividends under Delaware law
as a separate corporation.
VOTING RIGHTS: One vote per share. The AR-CombiMatrix stock will have one
vote per share.
The holders of AR-CombiMatrix stock and
AR-Acacia Technologies stock will
generally vote together as a single
class. In limited circumstances, such as
a proposed change in the rights of a
class of stock, holders of one or both
classes of common stock may be entitled
under Delaware law or under stock
exchange regulations to vote as a
separate class.
-15-
THE MERGER PROPOSAL
-----------------------------------------------------------------------------------
EXISTING
COMBIMATRIX CORPORATION
COMMON STOCK AR-COMBIMATRIX STOCK
---------------------------------------- ----------------------------------------
RIGHTS ON SALE OF ALL If CombiMatrix Corporation were to sell If we sell all or substantially all of
OR SUBSTANTIALLY ALL all or substantially all of its the properties and assets attributed to
ASSETS OF A GROUP: properties and assets, CombiMatrix the CombiMatrix group, we must either
Corporation would be required to receive (1) distribute through a dividend or
the approval of a majority of its redemption to holders of AR-CombiMatrix
stockholders at a duly called meeting. stock an amount equal to the net
proceeds of the sale, or (2) convert
each share of AR-CombiMatrix stock into
a number of shares of AR-Acacia
Technologies stock at a 10% premium over
the then current value. We may, but will
not be required to, distribute the net
proceeds or convert the AR-CombiMatrix
stock if we receive in the sale
primarily equity securities of the
acquirer or its parent and it is
primarily engaged in one or more
businesses similar or complementary to
the business of the CombiMatrix group.
CONVERSION AT OPTION None. Acacia Research may, at any time,
OF ACACIA RESEARCH: convert each share of AR-CombiMatrix
stock into a number of shares of
AR-Acacia Technologies stock at a 10%
premium over the average market values
of such shares.
REDEMPTION IN EXCHANGE None. Acacia Research may redeem the
FOR STOCK OF SUBSIDIARY: AR-CombiMatrix stock for all of the
shares of the common stock of one or
more of our wholly owned subsidiaries
that hold all of the assets and
liabilities attributed to the
CombiMatrix group.
LIQUIDATION: If CombiMatrix Corporation is If Acacia Research is liquidated,
liquidated, holders of its existing holders of AR-CombiMatrix stock will be
common stock will be entitled to receive entitled to a portion of any assets
its net assets remaining for remaining for distribution to holders of
distribution to holders of CombiMatrix common stock on a per share basis in
Corporation common stock. proportion to the liquidation units per
share of AR-CombiMatrix stock. Each
share of AR-CombiMatrix stock will have
one liquidation unit.
-16-
THE MERGER AGREEMENT
We have attached a copy of the merger agreement as ANNEX A to this
document. We encourage you to read the merger agreement carefully in its
entirety because it is the legal document governing the merger.
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
We believe, and have received an opinion from PricewaterhouseCoopers LLP to
the effect that, no gain or loss will be recognized by Acacia Research or you
for U.S. federal income tax purposes as a result of the merger except with
respect to cash received by you instead of a fractional share of AR-CombiMatrix
stock. However, there are no court decisions or other authorities bearing
directly on transactions similar to the merger proposal. In addition, the
Internal Revenue Service has announced that it will not issue rulings on the
characterization of stock with characteristics similar to the AR-CombiMatrix
stock. Therefore, the tax treatment of the merger is subject to some
uncertainty.
Tax matters are very complicated and the tax consequences of the merger to
you will depend on the facts of your own situation. We urge you to consult your
tax advisors for a full description of the tax consequences of the merger to
you.
APPRAISAL OR DISSENTERS' RIGHTS IN CONNECTION WITH THE MERGER
Stockholders of Acacia Research will not have any dissenters' or appraisal
rights under Delaware law in connection with the merger because they will own
publicly traded securities both before and after the merger. CombiMatrix
Corporation stockholders who object to the merger, however, will have
dissenters' appraisal rights.
ACCOUNTING TREATMENT
We will account for the acquisition of the equity interest in CombiMatrix
Corporation in the merger as a purchase of a business. Under this method of
accounting, the assets acquired and liabilities assumed of CombiMatrix
Corporation will be recorded at their fair value as of the date of their
acquisition, and any excess of our purchase price over the fair value will be
accounted for as goodwill.
REGULATORY MATTERS
We are not aware of any material governmental or regulatory requirements
that must be complied with regarding the merger, other than federal securities
laws and the filing of documents describing principal terms of the merger
agreement with the Secretary of State of Delaware.
CONDITIONS TO THE MERGER
We will complete the merger only if specific conditions are satisfied or,
in some cases, waived.
TERMINATION OF THE AGREEMENT AND PLAN OF REORGANIZATION
Our board of directors and the CombiMatrix Corporation board of directors
can jointly agree to terminate the merger agreement at any time before the
merger is completed. In addition, either company can terminate the merger
agreement if the merger is not completed by December 31, 2002 and under certain
other circumstances.
-17-
STOCK INCENTIVE PLANS
The 2002 CombiMatrix Stock Incentive Plan and the 2002 Acacia Technologies
Stock Incentive Plan are intended to serve as successor plans to the existing
stock option plans of Acacia Research and CombiMatrix Corporation.
At the time of the recapitalization, all outstanding options to purchase
Acacia Research common stock will be converted into options to purchase
AR-CombiMatrix stock and AR-Acacia Technologies stock and transferred to the
2002 CombiMatrix Stock Incentive Plan and the 2002 Acacia Technologies Stock
Incentive Plan, respectively. Upon the consummation of the merger, all
outstanding options to purchase CombiMatrix Corporation common stock will be
converted into options to purchase AR-CombiMatrix stock and transferred to the
2002 CombiMatrix Stock Incentive Plan. The replacement options will continue to
be governed by the terms of the original options unless our compensation
committee decides to extend one or more features of the new plans to these
options. Adjustments will be made in the exercise price of the options to
maintain the spread between the exercise price and the market price before and
after the recapitalization and the merger.
After the recapitalization, no further options will be granted under the
currently existing stock option plans of Acacia Research and CombiMatrix
Corporation. Instead all new options will be granted under either the 2002
CombiMatrix Stock Incentive Plan or the 2002 Acacia Technologies Stock Incentive
Plan. The terms of the proposed new plans are identical, except that
AR-CombiMatrix stock can only be issued under the 2002 CombiMatrix Stock
Incentive Plan and AR-Acacia Technologies stock can only be issued under the
2002 Acacia Technologies Stock Incentive Plan.
The individuals eligible to participate in the new plans include officers,
employees, board members and consultants of Acacia Research and our
subsidiaries. The number of shares of AR-CombiMatrix stock that will be
authorized under the CombiMatrix Plan will be equal to 9,000,000 minus the sum
of (i) the number of shares of CombiMatrix Corporation common stock issued under
the CombiMatrix Corporation stock option plans prior to the time of the merger
and (ii) a percentage of the number of shares of Acacia Research common stock
issued under the Acacia Research stock option plans prior to the time of the
merger. The number of shares of AR-Acacia Technologies stock that will be
authorized under the Acacia Technologies Plan will be equal to 5,700,000 minus
the number of shares of Acacia Research common stock issued under the Acacia
Research stock option plans prior to the time of the merger. The share reserve
under each plan will increase automatically in January of each year beginning in
2003 by three percent (3%) of the total number of shares of the related common
stock outstanding on the last trading day of December in the prior calendar
year. Unless otherwise provided in the documents evidencing an option, a change
in control of Acacia Research will result in all discretionary options issued
under the plans to vest immediately and become immediately exercisable.
RECENT DEVELOPMENTS
On September 30, 2002, CombiMatrix Corporation and Dr. Donald Montgomery,
an officer and stockholder of CombiMatrix Corporation, entered into a settlement
agreement with Nanogen, Inc. to settle all pending litigation between the
parties. Pursuant to the terms of the settlement agreement, CombiMatrix
Corporation agreed to pay Nanogen $500,000 within 30 days of the settlement and
an additional $500,000 within one year of the settlement. CombiMatrix
Corporation also agreed to make quarterly payments to Nanogen equal to 12.5% of
total sales of products developed by CombiMatrix Corporation and its affiliates
and based on the patents that had been in dispute in the litigation, up to an
annual maximum of $1,500,000. The minimum quarterly payments under the
settlement agreement will be $37,500 per quarter for the period from October 1,
2003 through October 1, 2004, and $25,000 per quarter thereafter until the
patents expire. The patents at issue, U.S. Patent Nos. 6,093,302, 6,280,595 and
6,444,111, expire in 2018 and cover CombiMatrix Corporation's core technology.
Also pursuant to the settlement agreement, CombiMatrix Corporation agreed to
issue 4,016,346 shares, or 17.5% of its outstanding shares post-issuance, to
Nanogen, subject to antidilution provisions under specified circumstances,
including the exercise of outstanding options and warrants and issuances of
additional capital stock of CombiMatrix Corporation, for a period of up to three
years.
-18-
In our subsidiary Soundview Technologies' pending litigation against
certain television manufacturers, the Consumer Electronics Manufacturers
Association and the Consumer Electronics Association in which Soundview
Technologies has alleged that the defendants have infringed on Soundview
Technologies' V-chip patent and committed antitrust violations, in September
2002, the court granted a motion for summary judgment filed by the defendants.
In granting the motion, the court ruled that the defendants have not infringed
on Soundview Technologies' patent. While we are currently exploring strategies
in response to this ruling and intend to appeal it, litigation is inherently
uncertain and we can give no assurance that we will be successful in any such
appeal.
-19-
CONSOLIDATING SELECTED FINANCIAL INFORMATION
ACACIA RESEARCH CORPORATION
The historical consolidating selected financial data set forth below as of
December 31, 2001 and 2000 and for the years ended December 31, 2001, 2000 and
1999 have been derived from our audited consolidated financial statements
included elsewhere in this proxy statement, and should be read in conjunction
with those financial statements (including notes thereto). The selected
financial data as of December 31, 1999, 1998 and 1997 and for the years ended
December 31, 1998 and 1997 have been derived from audited consolidated financial
statements not included in this proxy statement, but which were previously filed
with the SEC.
The historical consolidating selected financial data set forth below as of
June 30, 2002 and 2001 and for the three and six months ended June 30, 2002 and
2001 have been derived from and should be read in conjunction with our unaudited
interim consolidated financial statements included elsewhere herein. In the
opinion of management, the unaudited interim consolidated financial statements
include all material adjustments, consisting of only normal, recurring
adjustments, necessary for a fair presentation of the financial position and
results of operations for the periods presented.
We are providing the following consolidating financial information
including amounts related to the Acacia Technologies group and the CombiMatrix
group to assist you in your analysis of the financial aspects of the
recapitalization and merger proposals. The selected financial information of the
Acacia Technologies group and the CombiMatrix group is being provided so that
you may have additional information regarding the historical financial
performance of the two divisions and the performance, potential value and
profitability of the respective businesses which may affect the respective share
values.
Acacia Research derived the Acacia Technologies group and CombiMatrix group
balance sheet data and statement of operations data from the separate audited
financial statements of the Acacia Technologies group and CombiMatrix group for
the years ended December 31, 2001, 2000 and 1999 included elsewhere herein, and
the table should be read in conjunction with those financial statements and
related notes. The historical selected financial data for the Acacia
Technologies group and the CombiMatrix group as of June 30, 2002 and 2001 and
for the three and six months ended June 30, 2002 and 2001 have been derived from
and should be read in conjunction with the unaudited interim financial
statements of the Acacia Technologies group and the CombiMatrix group included
elsewhere herein. In the opinion of management, the separate unaudited interim
financial statements for the Acacia Technologies group and the CombiMatrix group
include all material adjustments, consisting of only normal, recurring
adjustments, necessary for a fair presentation of the financial position and
results of operations for the periods presented.
The AR-Acacia Technologies stock and the AR-CombiMatrix stock is intended
to reflect the separate performance of the respective divisions of Acacia
Research, rather than the performance of Acacia Research Corporation as a whole.
The chief mechanisms intended to cause the AR-Acacia Technologies stock and the
AR-CombiMatrix stock to reflect the financial performance of the respective
groups are provisions in our proposed restated certificate of incorporation and
common stock policies governing dividends and distributions to each class of
stock which specifically require the allocation of earnings to each class based
upon the performance of the two groups determined in accordance with generally
accepted accounting principles. Under these provisions, Acacia Research will
factor the assets and liabilities and income or losses attributable to the
respective groups, determined as described above, into the determination of the
amounts available to pay dividends, if any, on the shares issued for the
respective groups; and require Acacia Research to exchange, redeem or distribute
a dividend on the stock of a group if all or substantially all of the assets
allocated to the respective group are sold to a third party.
We expect that the market value of each new class of stock will reflect the
performance of the respective groups primarily because we believe that the
performance of a group and the possibility and amount of any dividend to
stockholders, or distribution upon a sale of a group, will link the market price
of the shares to the performance of the respective group. We cannot assure you,
however, that the market values of AR-CombiMatrix stock and AR-Acacia
Technologies stock will in fact reflect the performance of the CombiMatrix group
and the Acacia Technologies group as we intend because holders of these stocks
will not hold a direct or exclusive interest in the separate groups. The Acacia
Technologies group and the CombiMatrix group are not separate legal entities.
-20-
Holders of AR-Acacia Technologies stock and AR-CombiMatrix stock will be
stockholders of Acacia Research. As a result, they will continue to be subject
to all of the risks of an investment in Acacia Research and all of its
businesses, assets and liabilities. The assets Acacia Research Corporation
attributes to one group could be subject to the liabilities of the other group.
This information is only a summary. You should read it in conjunction with
the separate Acacia Research, Acacia Technologies group and CombiMatrix group
historical financial statements and related notes and "Management's Discussion
and Analysis of Financial Condition and Results of Operations" contained
elsewhere herein.
CONSOLIDATING STATEMENT OF OPERATIONS DATA
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA):
FOR THE YEARS ENDED DECEMBER 31,
------------------------------------------------------------------
2001 2000 1999 1998 1997
----------- ----------- ----------- ----------- ----------
REVENUES:
Acacia Technologies Group ................ $ 24,180 $ 40 $ 122 $ 382 $ 491
CombiMatrix Group ........................ 456 17 144 -- --
Eliminations ............................. -- -- -- -- --
----------- ----------- ----------- ----------- ----------
ACACIA RESEARCH CORPORATION .............. $ 24,636 $ 57 $ 266 $ 382 $ 491
=========== =========== =========== =========== ==========
OPERATING INCOME (LOSS)(5):
Acacia Technologies Group ................ $ 5,858 $ (12,606) $ (4,955) $ (3,724) $ (2,299)
CombiMatrix Group ........................ (49,056) (24,557) (2,625) (2,118) (1,121)
Eliminations ............................. -- -- -- -- --
----------- ----------- ----------- ----------- ----------
ACACIA RESEARCH CORPORATION .............. $ (43,198) $ (37,163) $ (7,580) $ (5,842) $ (3,420)
=========== =========== =========== =========== ==========
OTHER INCOME (EXPENSE), NET:
Acacia Technologies Group ................ $ 2,111 $ (2,897) $ (818) $ (489) $ (109)
CombiMatrix Group ........................ 2,055 1,662 (224) (56) 9
Eliminations ............................. -- -- -- -- --
----------- ----------- ----------- ----------- ----------
ACACIA RESEARCH CORPORATION .............. $ 4,166 $ (1,235) $ (1,042) $ (545) $ (100)
=========== =========== =========== =========== ==========
INCOME (LOSS) FROM CONTINUING OPERATIONS
BEFORE MINORITY INTERESTS:
Acacia Technologies Group ................ $ 7,034 $ (15,509) $ (5,791) $ (4,213) $ (2,158)
CombiMatrix Group ........................ (46,846) (22,816) (2,851) (2,174) (1,112)
Eliminations ............................. -- -- -- -- --
----------- ----------- ----------- ----------- ----------
ACACIA RESEARCH CORPORATION .............. $ (39,812) $ (38,325) $ (8,642) $ (6,387) $ (3,270)
=========== =========== =========== =========== ==========
MINORITY INTERESTS:
Acacia Technologies Group ................ $ (1,277) $ 866 $ (27) $ 56 $ 113
CombiMatrix Group ........................ 18,817 8,300 1,248 142 298
Eliminations ............................. -- -- -- -- --
----------- ----------- ----------- ----------- ----------
ACACIA RESEARCH CORPORATION .............. $ 17,540 $ 9,166 $ 1,221 $ 198 $ 411
=========== =========== =========== =========== ==========
LOSS FROM CONTINUING OPERATIONS:
Acacia Technologies Group ................ $ 5,757 $ (14,643) $ (5,818) $ (4,157) $ (2,045)
CombiMatrix Group ........................ (28,029) (14,516) (1,603) (2,032) (814)
Eliminations ............................. -- -- -- -- --
----------- ----------- ----------- ----------- ----------
ACACIA RESEARCH CORPORATION .............. $ (22,272) $ (29,159) $ (7,421) $ (6,189) $ (2,859)
=========== =========== =========== =========== ==========
LOSS FROM DISCONTINUED OPERATIONS (1):
Acacia Technologies Group ................ $ -- $ (9,554) $ (776) $ -- $ --
CombiMatrix Group ........................ -- -- -- -- --
Eliminations ............................. -- -- -- -- --
----------- ----------- ----------- ----------- ----------
ACACIA RESEARCH CORPORATION .............. $ -- $ (9,554) $ (776) $ -- $ --
=========== =========== =========== =========== ==========
LOSS BEFORE CUMULATIVE EFFECT OF CHANGE IN
ACCOUNTING PRINCIPLE:
Acacia Technologies Group ................ $ 5,757 $ (24,197) $ (6,594) $ (4,157) $ (2,045)
CombiMatrix Group ........................ (28,029) (14,516) (1,603) (2,032) (814)
Eliminations ............................. -- -- -- -- --
----------- ----------- ----------- ----------- ----------
ACACIA RESEARCH CORPORATION .............. $ (22,272) $ (38,713) $ (8,197) $ (6,189) $ (2,859)
=========== =========== =========== =========== ==========
-21-
FOR THE YEARS ENDED DECEMBER 31,
------------------------------------------------------------------
2001 2000 1999 1998 1997
----------- ----------- ----------- ----------- ----------
CUMULATIVE EFFECT OF CHANGE IN ACCOUNTING
PRINCIPLE DUE TO BENEFICIAL CONVERSION
FEATURE:
Acacia Technologies Group ................ $ -- $ -- $ -- $ -- $ --
CombiMatrix Group ........................ -- (246) -- -- --
Eliminations ............................. -- -- -- -- --
----------- ----------- ----------- ----------- ----------
ACACIA RESEARCH CORPORATION .............. $ -- $ (246) $ -- $ -- $ --
=========== =========== =========== =========== ==========
NET LOSS:
Acacia Technologies Group ................ $ 5,757 $ (24,197) $ (6,594) $ (4,157) (2,045)
CombiMatrix Group ........................ (28,029) (14,762) (1,603) (2,032) (814)
Eliminations ............................. -- -- -- -- --
----------- ----------- ----------- ----------- ----------
ACACIA RESEARCH CORPORATION .............. $ (22,272) $ (38,959) $ (8,197) $ (6,189) $ (2,859)
=========== =========== =========== =========== ==========
Loss per common share:
Basic and diluted
Loss from continuing operations .......... $ (1.16) $ (1.78) $ (0.59) $ (0.58) $ (0.42)
Loss from discontinued operations ........ -- (0.58) (0.06) -- --
Cumulative effect of change in accounting
principle ............................ -- (0.02) -- -- --
----------- ----------- ----------- ----------- ----------
NET LOSS ................................. $ (1.16) $ (2.38) $ (0.65) $ (0.58) $ (0.42)
=========== =========== =========== =========== ==========
Weighted average number of common and
potential shares outstanding used in
computation of loss per common
share(2):
Basic .................................... 19,259,256 16,346,099 12,649,133 10,748,982 6,739,996
Diluted .................................. 19,259,256 16,346,099 12,649,133 10,748,982 6,739,996
-22-
FOR THE THREE MONTHS ENDED JUNE 30, FOR THE SIX MONTHS ENDED JUNE 30,
----------------------------------- ---------------------------------
2002 2001 2002 2001
----------- ----------- ----------- -----------
(UNAUDITED) (UNAUDITED)
Revenues
Acacia Technologies Group ......... $ -- $ 10,000 $ -- $ 12,440
CombiMatrix Group ................. 438 91 687 274
Eliminations ...................... -- -- -- --
----------- ----------- ----------- -----------
ACACIA RESEARCH CORPORATION ....... $ 438 $ 10,091 $ 687 $ 12,714
=========== =========== =========== ===========
OPERATING INCOME (LOSS)(5):
Acacia Technologies Group ......... $ (3,062) $ 3,850 $ (5,325) $ 2,610
CombiMatrix Group ................. (10,002) (13,787) (16,216) (28,348)
Eliminations ...................... -- -- -- --
----------- ----------- ----------- -----------
ACACIA RESEARCH CORPORATION ....... $ (13,064) $ (9,937) $ (21,541) $ (25,738)
=========== =========== =========== ===========
OTHER INCOME (EXPENSE), NET:
Acacia Technologies Group ......... $ (905) $ 473 $ (1,547) $ 884
CombiMatrix Group ................. 89 558 278 1,291
Eliminations ...................... -- -- -- --
----------- ----------- ----------- -----------
ACACIA RESEARCH CORPORATION ....... $ (816) $ 1,031 $ (1,269) $ 2,175
=========== =========== =========== ===========
INCOME (LOSS) FROM CONTINUING
OPERATIONS BEFORE MINORITY
INTERESTS:
Acacia Technologies Group ......... $ (3,931) $ 4,056 $ (6,807) $ 3,178
CombiMatrix Group ................. (9,874) (13,190) (15,859) (26,982)
Eliminations ...................... -- -- -- --
----------- ----------- ----------- -----------
ACACIA RESEARCH CORPORATION ....... $ (13,805) $ (9,134) $ (22,666) $ (23,804)
=========== =========== =========== ===========
MINORITY INTERESTS:
Acacia Technologies Group ......... $ 125 $ (959) $ 162 $ (1,286)
CombiMatrix Group ................. 3,979 5,321 6,377 10,839
Eliminations ...................... -- -- -- --
----------- ----------- ----------- -----------
ACACIA RESEARCH CORPORATION ....... $ 4,104 $ 4,362 $ 6,539 $ 9,553
=========== =========== =========== ===========
NET LOSS:
Acacia Technologies Group ......... $ (3,806) $ 3,097 $ (6,645) $ 1,892
CombiMatrix Group ................. (5,895) (7,869) (9,482) (16,143)
Eliminations ...................... -- -- -- --
----------- ----------- ----------- -----------
ACACIA RESEARCH CORPORATION ....... $ (9,701) $ (4,772) $ (16,127) $ (14,251)
=========== =========== =========== ===========
Loss per common share:
Basic and diluted
Loss from continuing operations ... $ (0.49) $ (0.25) $ (0.82) $ (0.74)
NET LOSS .......................... $ (0.49) $ (0.25) $ (0.82) $ (0.74)
=========== =========== =========== ===========
Weighted average number of common
and potential shares outstanding
used in computation of loss per
common share(2):
Basic ............................. 19,634,549 19,503,549 19,622,363 19,260,094
Diluted ........................... 19,634,549 19,503,549 19,622,363 19,260,094
-23-
CONSOLIDATING BALANCE SHEET DATA (IN THOUSANDS):
AT DECEMBER 31, AT JUNE 30,
----------------------------------------------- -----------
2001 2000 1999 1998 1997 2002
-------- ------- ------- ------- ------ -----------
(UNAUDITED)
TOTAL ASSETS(5):
Acacia Technologies Group ...... $ 62,926 $37,062 $49,788 $19,267 $8,497 $55,325
CombiMatrix Group .............. 47,963 61,561 2,003 3,648 357 37,703
Eliminations(4) ................ (30) (107) -- (3,146) -- (88)
-------- ------- ------- ------- ------ -------
ACACIA RESEARCH CORPORATION .... $110,859 $98,516 $51,791 $19,769 $8,854 $92,940
======== ======= ======= ======= ====== =======
LONG-TERM INDEBTEDNESS:
Acacia Technologies Group ...... $ -- $ -- $ -- $ -- $ -- $ --
CombiMatrix Group .............. -- -- -- 1,222 -- --
Eliminations ................... -- -- -- -- -- --
-------- ------- ------- ------- ------ -------
ACACIA RESEARCH CORPORATION .... $ -- $ -- $ -- $ 1,222 $ -- $ --
======== ======= ======= ======= ====== =======
TOTAL LIABILITIES(3)(5):
Acacia Technologies Group ...... $ 5,723 $ 5,075 $ 1,304 $ 436 $ 425 $ 5,472
CombiMatrix Group .............. 14,131 15,880 229 4,538 22 15,424
Eliminations(4) ................ (30) (107) 100 (3,146) -- (88)
-------- ------- ------- ------- ------ -------
ACACIA RESEARCH CORPORATION .... $ 19,824 $20,848 $ 1,633 $ 1,828 $ 447 $20,808
======== ======= ======= ======= ====== =======
MINORITY INTERESTS(3):
Acacia Technologies Group ...... $ 2,194 $ 2,012 $ 3,992 $ -- $ 81 $ 1,899
CombiMatrix Group .............. 30,109 15,512 904 -- 146 27,480
Eliminations ................... -- -- -- -- -- --
-------- ------- ------- ------- ------ -------
ACACIA RESEARCH CORPORATION .... $ 32,303 $17,524 $ 4,896 $ -- $ 227 $29,379
======== ======= ======= ======= ====== =======
STOCKHOLDERS' EQUITY:
Acacia Technologies Group ...... $ 55,009 $29,975 $44,492 $18,845 $7,991 $47,954
CombiMatrix Group .............. 3,723 30,169 770 (904) 189 (5,201)
Eliminations ................... -- -- -- -- -- --
-------- ------- ------- ------- ------ -------
ACACIA RESEARCH CORPORATION .... $ 58,732 $60,144 $45,262 $17,941 $8,180 $42,753
======== ======= ======= ======= ====== =======
----------
(1) On February 13, 2001, the board of directors of Soundbreak.com, Inc., one
of our majority-owned subsidiaries, resolved to cease operations as of
February 15, 2001 and liquidate the remaining assets and liabilities of the
company. Operating results in 1999 have been restated to present
Soundbreak.com as discontinued operations. See Note 9 to the 2001
consolidated financial statements.
(2) Potential common shares for the three months ended March 31, 2002 and 2001,
and in 2001, 2000, 1999, 1998 and 1997 have been excluded from the per
share calculation because the effect of their inclusion would be
anti-dilutive. In addition, all share and per share information has been
adjusted as appropriate for all periods presented to reflect a two-for-one
stock split effected in March 1998 and a ten percent (10%) stock dividend
distributed on December 5, 2001 for stockholders of record as of November
21, 2001.
(3) Effective January 1, 2001, we changed our accounting policy for balance
sheet classification of employee stock-based compensation resulting from
awards in consolidated subsidiaries. As a result, effective January 1,
2001, amortized non-cash stock compensation charges related to subsidiary
stock options are included in minority interests in our consolidated
balance sheet. Prior to the change in accounting policy, amortized non-cash
stock compensation charges related to subsidiary stock options were
reflected as "accrued stock compensation" in consolidated liabilities.
There is no impact on previous consolidated statements of operations as a
result of this change in accounting policy.
(4) Represents intercompany receivables/payables between the groups. In 1998,
the intercompany receivable/payable was $3.1 million related to funds
advanced by Acacia Research to fund CombiMatrix Corporation's operations.
These amounts were repaid by CombiMatrix Corporation in 1999.
(5) MANAGEMENT ALLOCATION POLICIES. The management and allocation policies
applicable to the preparation of the financial statements of the Acacia
Technologies group and the CombiMatrix group and as a result, to the
measurement by which dividends or performance are determined for each
group, may be modified or rescinded, or additional policies may be adopted,
at the sole discretion of the Board at any time without approval of the
stockholders. The Acacia Technologies group's and the CombiMatrix group's
financial statements reflect the application of the management and
allocation policies adopted by the Board to various corporate activities,
as described below. Management has no plans to change allocation methods or
the composition of the groups. The CombiMatrix group financial statements
should be read in conjunction with the Acacia Research Corporation
consolidated financial statements and related notes.
CORPORATE GENERAL AND ADMINISTRATIVE SERVICES AND FACILITIES. Acacia
Research allocates the cost of corporate general and administrative
services and facilities between the Acacia Technologies group and the
CombiMatrix group, generally based upon utilization. Where determinations
based on utilization alone are impracticable, Acacia Research uses other
methods and criteria that management believes to be equitable and to
provide a reasonable estimate of the cost attributable to each group.
Direct salaries, payroll taxes and fringe benefits are allocated to the
groups based on the percentage of actual time incurred by specific
employees to total annual time available and direct costs including
postage, insurance, legal fees, accounting and tax are allocated to the
groups based on specific identification of costs
-24-
incurred on behalf of each group. Other direct costs, including direct
depreciation expense, computer costs, general office supplies and rent are
allocated to the groups based on the ratio of direct salaries to total
salaries. Indirect costs, including indirect salaries and benefits,
investor relations, rent, general office supplies and indirect depreciation
are allocated to the groups based on the ratio of direct salaries allocated
to each group to total direct salaries. For the CombiMatrix group the
totals for these allocations were $0.3 million and $0.4 million and $0.6
million for the three and six months ended June 30, 2002 and 2001,
respectively, and $1.4 million, $0.9 million and $0.4 million for 2001,
2000, and 1999, respectively. For the Acacia Technologies group the totals
for these allocations were $1.3 million and $0.8 million and $2.4 million
and $2.6 million for the three and six months ended June 30, 2002 and 2001,
respectively; and $4.6 million, $7.7 million and $3.1 million for 2001,
2000, and 1999, respectively.
ASSETS AND LIABILITIES. In general, Acacia Research Corporation's assets
and liabilities have been attributed to the Acacia Technologies group and
the CombiMatrix group based on the respective assets and liabilities of the
businesses comprising each group. Net intangible assets recorded at the
Acacia Research Corporation level, primarily consisting of acquired patents
and goodwill balances, have been attributed to the respective businesses
comprising each group to which the intangibles and goodwill relate.
ALLOCATION OF FEDERAL AND STATE INCOME TAXES. Acacia Research Corporation
determines its federal income taxes and the federal income taxes of its
subsidiaries that own assets allocated between the groups on a consolidated
basis. Acacia Research Corporation allocates consolidated federal income
tax provisions and related tax payments or refunds between the Acacia
Technologies' group and CombiMatrix group based principally on the taxable
income and tax credits directly attributable to each group. Such
allocations reflect each group's contribution, whether positive or
negative, to Acacia Research Corporation's consolidated federal taxable
income and consolidated federal tax liability and tax credit position.
Acacia Research Corporation will credit tax benefits that cannot be used by
the group generating those benefits but can be used on a consolidated basis
to the group that generated such benefits.
TREASURY AND CASH MANAGEMENT POLICIES. Information regarding Treasury and
Cash Management policies for the Acacia Technologies group and the
CombiMatrix group are included in the notes to the separate financial
statements for the Acacia Technologies group and the CombiMatrix group
included elsewhere herein.
-25-
OTHER FACTORS AFFECTING COMPARABILITY:
o In 1997, we acquired a controlling interest in Soundview Technologies.
The 1996 amounts have been restated for the effects of our increased
interest in Soundview. Prior to this restatement, we reported loss of
$161,000 in equity in earnings of affiliates and net income of
$293,000.
o The Acacia Technologies group revenues presented from 1999 to 1997
primarily relate to capital management fee income, including
performance fee income, recorded by the Acacia Capital Management
division. During the fourth quarter of 1999, Acacia Research closed
its Acacia Capital Management division. Acacia Capital Management was
a general partner in two private investment partnerships and was an
investment advisor to two offshore private investment corporations.
o In the fourth quarter of 2000, we recorded $1.0 million in write-offs
of other early-stage investments and $2.6 million in write-offs of
equity investments.
o During the year ended December 31, 2000, CombiMatrix Corporation,
recorded deferred non-cash stock compensation charges aggregating
approximately $53.8 million in connection with the granting of stock
options. Deferred non-cash stock compensation charges are being
amortized by the CombiMatrix group over the respective option grant
vesting periods, which range from one to four years. Non-cash stock
compensation charges totaled $20.0 million and $10.0 million in 2001
and 2000, respectively. Non-cash stock compensation charges were not
significant in prior periods.
o In connection with Acacia Research's increased focus on the media
technologies and life sciences sectors, certain of Acacia Research's
businesses allocated to the Acacia Technologies group ceased
operations and certain investments were written off in 2000. As a
result, marketing, general and administrative costs related to
salaries, benefits, consulting, legal and other professional costs
were significantly reduced in 2001.
-26-
UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION
The following unaudited pro forma consolidated financial information
reflects the pro forma effect on Acacia Research's unaudited consolidated
balance sheet as of June 30, 2002 and consolidated statements of operations for
the year ended December 31, 2001 (audited) and for the six months ended June 30,
2002 (unaudited) from the recapitalization of Acacia Research and the merger and
related acquisition by Acacia Research of the remaining 52.3% of the CombiMatrix
Corporation common stock that Acacia Research does not already own. As such, the
Acacia Research pro forma consolidated statements are based upon the
consolidated financial statements of Acacia Research adjusted to give effect to
the recapitalization and merger transactions.
The unaudited pro forma balance sheet gives effect to the proposed
recapitalization and merger as if they had taken place on June 30, 2002 and
reflects authorization and issuances of the two new share classes and the
purchase adjustment to the carrying value of the acquired assets and liabilities
of CombiMatrix Corporation based on a preliminary valuation. The unaudited pro
forma statement of operations for the year ended December 31, 2001 and for the
six months ended June 30, 2002 reflects the merger and recapitalization as if
they had taken place on January 1, 2001.
Upon consummation of the recapitalization, each share of existing Acacia
Research common stock will be converted into approximately 0.5582 of a share of
AR-CombiMatrix stock (subject to adjustment as described in this proxy
statement) and one share of AR-Acacia Technologies stock.
If the merger is approved, Acacia Research will account for the merger
using the purchase method of accounting. Under this method of accounting, the
acquired assets and liabilities assumed of CombiMatrix Corporation, including
intangible assets, will be adjusted to their fair market values. Consistent with
generally accepted accounting principles in the United States of America,
amounts assigned to purchased in-process research and development -- i.e.,
CombiMatrix Corporation research and development projects that are still in
process at the closing of the merger, but which, if unsuccessful, have no
alternative future use -- must be charged as expenses on the date that the
merger is consummated.
The unaudited pro forma consolidated statements are based upon information
set forth in this document and assumptions included in the accompanying notes.
After consummation of the merger, Acacia Research anticipates completion of the
valuations and other studies of significant assets, liabilities and business
operations of CombiMatrix Corporation. Using this information, Acacia Research
will make a final purchase price allocation between tangible assets and
liabilities, identifiable intangible assets, in-process research and development
and goodwill. The impact of these changes, principally affecting intangible
assets, related amortization, goodwill and in-process research and development,
could be material. Accordingly, the purchase price allocation adjustments made
in connection with the development of Acacia Research's unaudited pro forma
statements are preliminary and have been made solely for the purpose of
developing the Acacia Research pro forma statements.
Upon consummation of the merger, CombiMatrix Corporation stockholders,
other than Acacia Research, will receive one share of the AR-CombiMatrix stock
for each share of CombiMatrix Corporation common stock that they own. The shares
of AR-CombiMatrix stock that will be issued to CombiMatrix Corporation
stockholders, other than Acacia Research, in the merger are expected to
represent approximately 52.3% of the outstanding shares of CombiMatrix
Corporation common stock, excluding stock options.
Based upon the number of shares of CombiMatrix Corporation common stock
outstanding on November 1, 2002, approximately 12.0 million shares of
AR-CombiMatrix stock, including 4,016,364 shares of CombiMatrix Corporation
common stock issued to Nanogen, Inc. on October 1, 2002, will be issued to
CombiMatrix Corporation stockholders in the merger. See Note K to the unaudited
pro forma financial statements.
The unaudited pro forma consolidated balance sheet and statements of
operations are for informational purposes only. They do not purport to indicate
the results that would have actually been obtained had the recapitalization and
merger been completed on the assumed date or for the periods presented, or which
may be obtained in the future. To produce the pro forma consolidated financial
information, Acacia Research allocated the purchase price using its best
estimates. The unaudited pro forma consolidated balance sheet and consolidated
-27-
statement of operations should be read in conjunction with Management's
Discussion and Analysis of Financial Condition and Results of Operations and the
consolidated financial statements, including the notes, of Acacia Research
appearing in "Acacia Research Corporation - Accountant's Report and Financial
Statement" on page F-2.
-28-
ACACIA RESEARCH CORPORATION
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
AS OF JUNE 30, 2002
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE INFORMATION)
Acacia Research
Acacia Research Pro Forma Corporation
Corporation Adjustments Pro Forma
--------------- ----------- ---------------
ASSETS
Current assets:
Cash and cash equivalents $ 49,712 $ 49,712
Short-term investments 16,699 16,699
Prepaid expenses, other receivables and other assets 2,682 2,682
--------- ---------
Total current assets 69,093 69,093
Property and equipment, net of accumulated depreciation 4,575 4,575
Investment in affiliate, at cost 3,000 3,000
Patents, net of accumulated amortization 10,857 7,800 (A) 18,657
Goodwill, net of accumulated amortization 4,627 37,900 (A) 40,000
(2,527)(G)
Other assets 788 788
--------- ---------
$ 92,940 $ 136,113
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable, accrued expenses and other $ 5,699 800 (A) $ 6,499
Current portion of deferred revenues 8,842 (2,527)(G) 6,315
Current portion of capital lease obligation 976 976
--------- ---------
Total current liabilities 15,517 13,790
Deferred income taxes 3,679 3,100 (A) 6,779
Deferred revenues, net of current portion 266 266
Capital lease obligation, net of current portion 1,346 1,346
--------- ---------
Total liabilities 20,808 22,181
--------- ---------
(7,800)(A)
Minority interests 29,379 (18,900)(B) 2,679
--------- ---------
Stockholders' equity:
Acacia Technologies common stock (Note H) 20 20
CombiMatrix common stock (Note H) -- 12 (A) 12
Additional paid-in capital 158,672 59,888 (A) 246,282
26,502 (B)
1,220 (C)
Deferred stock compensation -- (7,602)(B) (8,822)
(1,220)(C)
Warrants to purchase common stock 199 199
Comprehensive loss 1 1
Accumulated deficit (116,139) (10,300)(A) (126,432)
--------- ---------
Total stockholders' equity 42,753 111,253
--------- ---------
$ 92,940 $ 136,113
========= =========
See Notes to Unaudited Pro Forma Consolidated Financial Statements
-29-
ACACIA RESEARCH CORPORATION
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 2001
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE INFORMATION)
Acacia
Acacia Research
Research Pro Forma Corporation
Corporation Adjustments Pro Forma
----------- ----------- -----------
Revenues:
License fee income $ 24,180 $ 24,180
Grant revenue 456 456
----------- -----------
Total revenues 24,636 24,636
----------- -----------
Operating expenses:
Research and development expenses 18,839 134 (F) 18,973
Marketing, general and administrative expenses 46,300 272 (F) 46,572
Amortization of patents and goodwill 2,695 1,114 (E) 3,809
Loss on disposal of consolidated subsidiaries -- --
----------- -----------
Total operating expenses 67,834 69,354
----------- -----------
Operating loss (43,198) (44,718)
----------- -----------
Other income (expense):
Interest income 3,762 3,762
Realized gains on short-term investments 350 350
Unrealized gains on short-term investments 237 237
Interest expense (65) (65)
Equity in losses of affiliates (195) (195)
Other income 77 77
----------- -----------
Total other income (expense) 4,166 4,166
----------- -----------
Loss from operations before income taxes and minority interests (39,032) (40,552)
Provisions for income taxes (780) 442 (E) (338)
----------- -----------
Loss from operations before minority interests (39,812) (40,890)
Minority interests 17,540 (18,757)(D) (1,217)
----------- -----------
Net loss $ (22,272) $ (42,107)
=========== ===========
Loss per common share:
Basic loss per share $ (1.16)
===========
Diluted loss per share $ (1.16)
===========
Weighted average number of common and potential common shares outstanding in
computation of loss per share:
Basic 19,592,459
Diluted 19,592,459
Pro forma Earnings (loss) per common and potential common share:
Net income (loss) attributed to AR-Acacia Technologies stock $ 5,758 (H)
===========
Per Basic share $ 0.29 (H)
===========
Per Diluted share $ 0.29 (H)
===========
Net income (loss) attributed to AR-CombiMatrix stock $ (47,865)
===========
Per Basic share $ (2.09)(H)
===========
Per Diluted share $ (2.09)(H)
===========
Weighted average shares - AR-Acacia Technologies stock
Basic 19,640,808 (I)
Diluted 20,176,962 (I)
Weighted average shares - AR-CombiMatrix stock
Basic 22,950,551 (I)(K)
Diluted 22,950,551 (I)(K)
See Notes to Unaudited Pro Forma Consolidated Financial Statements
-30-
ACACIA RESEARCH CORPORATION
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 2002
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE INFORMATION)
Acacia
Acacia Research
Research Pro Forma Corporation
Corporation Adjustments Pro Forma
----------- ----------- -----------
Revenues:
Grant revenue $ 413 $ 413
Product revenue 274 274
----------- -----------
Total revenues 687 687
----------- -----------
Operating expenses:
Cost of sales 253 253
Research and development expenses 8,807 67 (F) 8,874
Marketing, general and administrative expenses 12,040 136 (F) 12,176
Amortization of patents and goodwill 1,128 557 (E) 1,685
----------- -----------
Total operating expenses 22,228 22,988
----------- -----------
Operating loss (21,541) (22,301)
----------- -----------
Other income (expense):
Interest income 700 700
Realized gains on short-term investments (1,483) (1,483)
Unrealized gains on short-term investments (477) (477)
Interest expense (121) (121)
Equity in losses of affiliates
Other income 112 112
----------- -----------
Total other income (expense) (1,269) (1,269)
----------- -----------
Loss from operations before income taxes and minority interests (22,810) (23,570)
Provisions for income taxes 144 221 (E) 365
----------- -----------
Loss from operations before minority interests (22,666) (23,205)
Minority interests 6,539 (6,334)(D) 205
----------- -----------
Net loss $ (16,127) $ (23,000)
=========== ===========
Loss per common share:
Basic loss per share $ (0.82)
===========
Diluted loss per share $ (0.82)
===========
Weighted average number of common and potential common shares outstanding in
computation of loss per share:
Basic 19,622,363
Diluted 19,622,363
Pro forma Earnings (loss) per common and potential common share:
Net income (loss) attributed to AR-Acacia Technologies stock $ (6,645)(H)
===========
Per Basic share $ (0.34)(H)
===========
Per Diluted share $ (0.34)(H)
===========
Net income (loss) attributed to AR-CombiMatrix stock $ (16,355)(H)(J)
===========
Per Basic share $ (0.71)(H)
===========
Per Diluted share $ (0.71)(H)
===========
Weighted average shares - AR-Acacia Technologies stock
Basic 19,640,808 (I)
Diluted 19,640,808 (I)
Weighted average shares - AR-CombiMatrix stock
Basic 22,950,551 (I)
Diluted 22,950,551 (I)
See Notes to Unaudited Pro Forma Consolidated Financial Statements
-31-
NOTES TO UNAUDITED PRO FORMA
CONSOLIDATED FINANCIAL STATEMENTS
(TABULAR DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
The Acacia Research unaudited pro forma consolidated statements are based
upon the consolidated financial statements of Acacia Research adjusted to give
effect to the proposed recapitalization of Acacia Research and the creation of
two new classes of common stock and the merger and related acquisition by Acacia
Research of the remaining 52% of the CombiMatrix Corporation common stock that
Acacia Research does not already own.
The unaudited pro forma consolidated balance sheet gives effect to the
proposed recapitalization and merger as if it had taken place on June 30, 2002
and reflects the new capital structure and total purchase adjusted to the
carrying value of assets and liabilities based on a preliminary valuation. The
unaudited pro forma consolidated statements of operations for the year ended
December 31, 2001 and the six months ended June 30, 2002 reflect these
transactions as if they had taken place on January 1, 2001.
On March 20, 2002, Acacia Research Corporation's Board of Directors (the
"Board") approved a plan that would create two new classes of common stock
called "Acacia Research Corporation - CombiMatrix common stock" ("AR-CombiMatrix
stock") and "Acacia Research Corporation - Acacia Technologies common stock"
("AR-Acacia Technologies stock"). AR-CombiMatrix stock is intended to reflect
separately the performance of the CombiMatrix group and to benefit from its
research and the development efforts. AR-Acacia Technologies stock is intended
to reflect separately the performance of Acacia Research's media technology
business and to benefit from the licensing of its technology and sales of its
products. Each share of existing Acacia Research Corporation common stock will
be converted into a fraction of a share of AR-CombiMatrix stock and one share of
AR-Acacia Technologies stock. The fraction of a share of AR-CombiMatrix stock
into which each outstanding share of Acacia Research common stock will be
converted will be equal to the quotient obtained by dividing (a) the number of
shares of CombiMatrix Corporation common stock owned by Acacia Research
immediately prior to the effective time of the merger by (b) the total number of
shares of Acacia Research common stock issued and outstanding immediately prior
to the effective time. As of November 1, 2002, this fraction was 0.5582. Acacia
Research has applied to list the AR-CombiMatrix stock and the AR-Acacia
Technologies stock on the NASDAQ National Market under the symbols "CBMX" and
"ACTG", respectively. The recapitalization does not have an impact on the pro
forma consolidated statement of operations.
On March 20, 2002, Acacia Research and CombiMatrix Corporation entered into
a merger agreement pursuant to which CombiMatrix Corporation stockholders, other
than Acacia Research, will receive one share of AR-CombiMatrix stock for each
share of CombiMatrix Corporation common stock that they own. The merger will be
accounted for using the purchase method of accounting. There is currently no
quoted market price for CombiMatrix Corporation in order to value the equity
interest to be acquired of that entity. There is also no quoted market price of
the AR-CombiMatrix stock. The merger transaction will be valued at the date of
acquisition when the registration is completed, using the AR-CombiMatrix stock
(based on the quoted market price once that stock begins trading) multiplied by
the actual number of AR-CombiMatrix shares to be issued by Acacia Research to
the stockholders of CombiMatrix Corporation other than Acacia Research.
Management believes, for the purposes of the unaudited pro forma information,
the most indicative current value of AR- CombiMatrix stock is based upon
management's estimate of the relative value of CombiMatrix Corporation as
reflected in Acacia Research's stock price. Management believes that a
reasonable estimate of the current relative fair value of CombiMatrix
Corporation reflected in Acacia Research's current market value is approximately
60%. This estimate reflects management's assessment of the relative stages of
Acacia Research's businesses and gives consideration to the current agreement
between CombiMatrix Corporation and Roche Diagnostics GmbH and the current stage
at which the Acacia Technologies licensing activities have progressed.
Accordingly, management has used 60% of Acacia Research's recent average stock
price of $4.54, divided by the conversion rate of 0.5582 as the ascribed value
of a share of AR-CombiMatrix for purposes of preparing the pro forma financial
information ((0.60 x $4.54) /0.5582 = $5.00). The recent average stock price for
Acacia Research of $4.54 used in the unaudited pro forma information was based
on a five-day average (September 24 - September 30, 2002) of Acacia Research's
quoted closing market price per share as listed on the NASDAQ national market
system. Accordingly, Acacia Research's cost to acquire the 52% of CombiMatrix
Corporation not already owned, calculated to be $60.7 million assuming an
AR-CombiMatrix stock price, once effective, of $5.00 per share on the date of
consummation, will be allocated on a pro rata basis to the assets acquired and
liabilities assumed according to their respective fair values, with the excess
-32-
purchase price being allocated to goodwill. A 10%, 20% and 30% increase and
decrease in the value of the Acacia Research stock price used in the preparation
of the unaudited pro forma information would impact the ascribed value of a
share of the AR-CombiMatrix stock and as a result, the estimated cost to acquire
the 52% of CombiMatrix Corporation not already owned by approximately $4.0
million and $7.3 million, $10.0 million and $13.1 million, $16.0 million and $19
million, respectively. The total estimated cost to acquire the remaining 52% of
CombiMatrix Corporation common stock reflected in the accompanying unaudited pro
forma financial statements is subject to change based on the actual market price
of the AR-CombiMatrix stock once the AR-CombiMatrix stock begins trading. A
change in total cost will result in a corresponding change in goodwill.
MANAGEMENT'S REASONABLE ESTIMATE OF THE RELATIVE CURRENT FAIR VALUE OF
COMBIMATRIX CORPORATION AS REFLECTED IN ACACIA RESEARCH'S RECENT AVERAGE STOCK
PRICE IS SOLELY FOR THE PURPOSES OF PREPARING THE UNAUDITED PRO FORMA
CONSOLIDATED INFORMATION. NEITHER THE ESTIMATED PERCENTAGE NOR THE ASSUMED STOCK
MARKET PRICE THAT CAN BE DERIVED THEREFROM ARE INTENDED TO BE INDICATIVE OF
ACTUAL STOCK PRICES, THE RELATIVE VALUES OF THE SHARES AFTER THE
RECAPITALIZATION AND MERGER, OR THE VALUE OF COMBIMATRIX CORPORATION OR EITHER
OF THE TWO GROUPS. THE ASSUMED RELATIVE PERCENTAGE VALUE, THE ASSUMED STOCK
MARKET PRICE, AND THE PURCHASE PRICE ALLOCATION ADJUSTMENTS MADE IN CONNECTION
WITH THE DEVELOPMENT OF THE ACACIA RESEARCH UNAUDITED PRO FORMA CONSOLIDATED
FINANCIAL STATEMENTS HAVE BEEN MADE SOLELY FOR THE PURPOSE OF DEVELOPING SUCH
ACACIA RESEARCH UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS AND SHOULD
NOT BE CONSIDERED INDICATIVE OF ACTUAL PRICES, VALUES OR PERFORMANCE FOLLOWING
THE RECAPITALIZATION.
THE FINAL ALLOCATION OF THE PURCHASE CONSIDERATION IS ALSO DEPENDENT UPON
VALUATIONS AND OTHER STUDIES THAT ARE NOT YET COMPLETE. ACCORDINGLY, THE
PURCHASE PRICE ALLOCATION ADJUSTMENTS MADE IN CONNECTION WITH THE DEVELOPMENT OF
THE ACACIA RESEARCH UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS HAVE
BEEN MADE SOLELY FOR THE PURPOSE OF DEVELOPING SUCH ACACIA RESEARCH UNAUDITED
PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS AND SHOULD NOT BE CONSIDERED
INDICATIVE OF ACTUAL STOCK PRICES FOLLOWING THE RECAPITALIZATION AND MERGER.
The Acacia Research unaudited pro forma consolidated financial statements
are not necessarily indicative of what the actual financial results would have
been had the transactions described above taken place on June 30, 2002 or
January 1, 2001, nor do they purport to indicate results of future operations.
The Acacia Research unaudited pro forma consolidated statements have been
prepared on the basis of assumptions described in the notes below, including
assumptions relating to the allocation of the consideration paid for the 52% of
CombiMatrix Corporation not already owned based on preliminary estimates of fair
value. The actual allocation of the consideration may differ from that reflected
in the Acacia Research unaudited pro forma consolidated financial statements
after valuations and other procedures to be performed after the closing of the
merger have been completed. Below is a table of the estimated acquisition cost,
purchase price adjustment and annual amortization of the intangible assets
acquired:
Annual
Amortization Amortization
Life of Intangibles
------------ --------------
Estimated Acquisition Costs:
Exchange of AR-CombiMatrix tracking
stock for CombiMatrix Corporation stock $59,900
Acquisition expenses 800
-------
Total Estimated Acquisition Cost $60,700
=======
Purchase Price Allocation:
Fair value of 52.3% of CombiMatrix
Corporation net tangible assets at
June 30, 2002 $ 7,800
Intangible assets acquired:
Core technology/patent 7,800 7 years $1,114
Deferred Income Taxes (40%) (3,100)
In-process research and development 10,300
Goodwill 37,900
------- ------
Total $60,700 $1,114
------- ------
-33-
The total purchase price, the fair value of assets and liabilities
acquired, the allocation of purchase price and the lives of the intangible
assets will be determined upon completion of the merger and may vary from the
amounts presented herein. The valuation is expected to be completed upon the
consummation of the transaction.
As a result of the merger, Acacia Research expects to incur a write-off
related to in-process research and development ("IPR&D") totaling approximately
$10.3 million. The unaudited pro forma consolidated balance sheet includes the
effect of the write-off related to IPR&D. The pro forma statement of operations
does not reflect this one-time charge. The charge related to in-process research
and development will be reflected in Acacia Research's consolidated financial
statements when the merger is consummated and will be allocated to the
CombiMatrix group.
The fair value assigned to the IPR&D was estimated by discounting to
present value the cash flows expected to result from our IPR&D project once it
has reached technological feasibility. A discount rate consistent with the risks
of the project was used to estimate the present value of future cash flows. In
estimating future cash flows, Acacia Research management considered the
contribution of its core technology (for which a United States patent was
obtained in July 2000) that would be required for successful exploitation of
purchased in-process technology in order to value the core and in-process
technology discretely. As a result, future cash flows relating to the purchased
IPR&D project were reduced in order to reflect the contribution of core
technology to the IPR&D project. The cash flows from the project attributable to
core technology were then separately valued to determine the intangible asset
value of purchased core technology (listed in the table above). In determining
the contribution of core technology to our in-process project, Acacia Research
management analyzed their historical research and development efforts applicable
to obtaining their patent from the United States government versus their efforts
to commercially develop the technology in various IPR&D projects. The ratio of
core technology research and development spending to IPR&D spending at the time
of the merger was applied to the IPR&D project cash flows to determine cash
flows relating to core technology.
The nature of the efforts to develop the purchased IPR&D into commercially
viable products principally relates to the completion and/or acceleration of
existing development programs. These efforts include testing current and
alternative materials used in microarray design, testing of existing and
alternative methods for microarray synthesis, developing prototype machinery
(including operating software) to synthesize, hybridize and read individual
microarrays, and to perform numerous experiments, or assays, with actual target
samples in order to determine customer protocols and procedures for using our
microarray system. The costs of these efforts have been included in the
projections to successfully launch the purchased IPR&D project. The resulting
net cash flows from the project are based on Acacia Research and CombiMatrix
Corporation's management estimates of revenues, cost of sales, research and
development expenses, sales and marketing expenses, general and administrative
expenses, the anticipated effect of income taxes, and required returns on
working capital, fixed assets and other assets necessary to support the
generation of these cash flows.
The discounting of net cash flows relating to core technology back to their
present value is primarily based on CombiMatrix Corporation's weighted average
cost of capital ("WACC"). The WACC calculation produces the average required
rate of return of an investment in an operating enterprise, based on various
required rates of return from investments in various areas of that enterprise.
The weighted average discount rate was approximately 25% and is the rate used in
discounting the net cash flows attributable to purchased core technology.
The forecast data employed in the valuation analyses was based upon product
level forecast information obtained by Acacia Research from numerous internal
and external resources. These resources included publicly available databases,
external market research consultants, company-sponsored focus group data and
internal market experts. Acacia Research senior management reviewed and
challenged the forecast data and related assumptions and utilized the
information in analyzing IPR&D. The forecast data and assumptions are inherently
uncertain and unpredictable. However, based upon the information available at
this time, Acacia Research management believes the forecast data and assumptions
to be reasonable. These assumptions may be incomplete or inaccurate, and no
assurance can be given that unanticipated events and circumstances will not
occur. Accordingly, actual results may vary from the forecasted results. Any
such variance may result in a material adverse effect on Acacia Research's
financial condition and results of operations.
In the allocation of the purchase price to the IPR&D, the concept of
alternative future use was specifically considered for the program under
development. The acquired IPR&D consists of CombiMatrix Corporation's work
-34-
to complete each of the identified programs. The program is very specific to the
research market for which it is intended. There are no alternative uses for the
in-process program in the event that the program fails in its continued
development or is otherwise not feasible. The development effort for the
acquired IPR&D does not possess an alternative future use for Acacia as defined
by generally accepted accounting principles.
Below is a brief description of the acquired IPR&D project including an
estimation of when our management believes that we may realize revenues from the
sale of these products.
GENOMICS BIOLOGICAL ARRAY SYSTEM.
As described elsewhere in this document, our genomics biological array
processor system is being developed to discretely immobilize sequences of DNA or
RNA within individual test sites on a modified semiconductor chip coated with a
three-dimensional layer of porous material. The system also includes proprietary
hardware units and related software applications to be able to synthesize
materials onto the chips, apply target samples of genetic materials and
interpret the results. The purpose of this system will be in gene expression
profiling and SNP genotyping, which could lead to the better understanding of
gene function and ultimately therapeutic discovery to fight disease. Our
projected cash flow models from commercializing this system include servicing
our existing relationship with Roche as well as other strategic partners,
pharmaceutical, biotech and academic institutions. Our projected cash flows from
commercializing this system assume that the majority of our revenues received
will be in the form of royalties earned from licensing our genomics biological
array system to certain strategic partners including Roche, and that royalty
streams from these licensing arrangements will not commence until 2003. Although
current research and development efforts in commercializing this system have
been positive, there can be no assurance that the system will be successfully
launched and broadly accepted by the pharmaceutical, biotech and academic
research fields. The estimated stage of completion for this program as of the
acquisition date is expected to be approximately 79%, and we estimate that
future costs through commercial launch will be approximately $12.0 million. A
discount rate of 32% was utilized in discounting the estimated cash flows from
commercialization of the genomics biological array system, yielding a value for
our genomics IPR&D project of approximately $19.7 million.
The Acacia Research pro forma consolidated statements give effect to the
following pro forma adjustments:
A. Application of purchase accounting to the merger, reflecting the
estimated acquisition cost noted above and the issuance of shares of
AR-CombiMatrix stock. Components of the estimated acquisition cost reflect:
o Acquisition of the remaining 52% of CombiMatrix Corporation stock not
already owned by Acacia Research through an exchange of one share of
AR-CombiMatrix stock, for each share of CombiMatrix Corporation common
stock, or approximately 12.0 million shares of AR-CombiMatrix stock in
the aggregate. The merger transaction will be valued, at the date of
acquisition when the registration is completed, using the
AR-CombiMatrix stock (based on the quoted market price once that stock
begins trading). The purchase price was based upon the ascribed
AR-CombiMatrix common stock price of $5.00 per share, multiplied by
approximately 12.0 million shares acquired of which $12,000 and $59.9
million were reflected as common stock and additional paid-in capital,
respectively. Upon consummation of the acquisition, CombiMatrix
Corporation will be wholly owned by Acacia Research.
o Acquisition expenses of $800,000, including investment banking fees,
legal and accounting fees, filing and registration costs.
o Elimination of the 52% of equity interest related to the net assets of
CombiMatrix Corporation as of June 30, 2002, totalling $7.8 million.
-35-
Components of the purchase price allocation listed above and reflected in
the Acacia Research pro forma consolidated statements include the following:
o Core Technology/Patents. To determine the value of the core
technology/patents, the expected future cash flow attributable to the
core technology/patents was discounted, taking into account risks
related to the characteristics and applications of the technology,
existing and future markets, and assessment of the life cycle stage of
the technology. The analysis resulted in a valuation of approximately
$7.8 million for developed technology, which had reached technological
feasibility and therefore was capitalizable. Core technology/patents
is being amortized on a straight-line basis over a period of 7 years,
which is management's estimate of the remaining economic useful life.
o In-process Research and Development. The project identified as
in-process research and development at CombiMatrix Corporation, as
discussed above, is the project that will be underway at the time of
the merger and would, after consummation of the merger, require
additional effort to establish technological feasibility. As discussed
above, the analysis resulted in a valuation of approximately $10.3
million for in-process research and development.
o Goodwill. The preliminary goodwill allocation of $37.9 million was
determined by subtracting the estimated values allocated to the
identifiable tangible net assets, identifiable core technology,
deferred income taxes and in-process research and development,
acquired from the total estimated purchase price. Deferred income
taxes are set up at an estimated effective tax rate of 40% of
increased book basis in identifiable intangibles of $7.8 million. In
accordance with Statement of Financial Accounting Standards No. 142,
the goodwill is not being amortized and will be reviewed for
impairment annually.
B. To reflect CombiMatrix Corporation's unamortized deferred stock-based
compensation of $7.6 million (deduction from stockholder's equity). In
consolidation, Acacia Research classified accrued subsidiary stock-based
compensation charges as minority interest.
C. Exchange of approximately 3.5 million outstanding options exercisable to
purchase shares of CombiMatrix Corporation common stock into options exercisable
to purchase approximately 3.5 million shares of AR-CombiMatrix stock having the
same terms and conditions as the CombiMatrix Corporation common stock options.
As a result, the pro forma balance sheet includes deferred stock-based
compensation of $1.2 million related to the estimated increase in intrinsic
value of the CombiMatrix Corporation options upon remeasurement using the
assumed market price of the CombiMatrix Corporation common stock of $5.00 per
share. All of the CombiMatrix Corporation stock options were granted after
Acacia Research first acquired control. As such, the exchange of awards is
considered a modification (or settlement) of a stock-based compensation
arrangement and not part of the purchase price.
D. Elimination of the 52% interest in CombiMatrix Corporation not already
owned by Acacia Research related to the net loss of CombiMatrix Corporation for
the year ended December 31, 2001, and the six months ended June 30, 2002 due to
100% ownership interest subsequent to the merger.
E. Incremental amortization of intangible assets resulting from the merger.
Intangible assets are being amortized on a straight-line basis over periods
described above. Tax provision adjusted by 40% of incremental amortization.
F. Estimated amortization of stock-based compensation expense related to
the conversion of outstanding options exercisable to purchase shares of
CombiMatrix Corporation common stock to options exercisable to purchase
AR-CombiMatrix stock, as discussed in pro forma adjustment C. above.
G. To adjust deferred revenue recorded by CombiMatrix Corporation at June
30, 2002 and acquired in the merger, to reflect the fair value of the continuing
obligations as of the assumed date of the merger. The reduction of deferred
revenues results in a corresponding reduction in amounts assigned to goodwill.
-36-
H. If the recapitalization is implemented, the aggregate number of shares
of stock which Acacia Research will have authority to issue is 110,000,000
shares, of which 50,000,000 shares shall be shares of a class of common stock
designated as "AR-CombiMatrix stock," having a par value of $0.001 per share,
50,000,000 shares shall be shares of a class of common stock designated as
"AR-Acacia Technologies stock," having a par value of $0.001 per share, and
10,000,000 shares shall be shares of a class of preferred stock having a par
value of $0.001 per share (the "Preferred Stock") and issuable in one or more
series as determined by the board of directors pursuant to the proposed restated
certificate of incorporation. Holders of AR-CombiMatrix stock and AR-Acacia
Technologies stock will vote together as a single class (except in certain
limited circumstances). Each share of AR-CombiMatrix stock will entitle the
holder to one vote. Each share of AR-Acacia Technologies stock will entitle the
holder, for any particular vote, to a number of votes equal to the average
market value of a share of AR-Acacia Technologies stock divided by the average
market value of a share of AR-CombiMatrix stock over a specified 20-trading day
period ending on the 10th trading day prior to the record date for determining
the stockholders entitled to vote.
Holders of each class of common stock are entitled to receive ratably such
dividends, if any, as may be declared by the board of directors out of funds
legally available therefore.
Under our restated certificate of incorporation, in the event of our
dissolution, liquidation or winding up, after payment or provision for payment
of the debts and other liabilities and full preferential amounts to which
holders of any preferred stock are entitled, regardless of the group to which
such shares of preferred stock were attributed, the holders of AR-CombiMatrix
stock and AR-Acacia Technologies stock will be entitled to receive our assets
remaining for distribution to holders of common stock on a per share basis in
proportion to the liquidation units per share of such class. This provision
provides for the distribution of assets upon a liquidation that reflects the
initial relative economic interests of the respective classes of stock. Each
share of AR-CombiMatrix stock will have one liquidation unit. Each share of
AR-Acacia Technologies stock will have a number of liquidation units equal to
the quotient of the average market value of a share of AR-Acacia Technologies
stock over the 20-trading day period ending on the 40th trading day after the
effective date of the recapitalization, divided by the average market value of a
share of AR-CombiMatrix stock over the same period.
Holders of each class of common stock have no preemptive, subscription,
redemption or conversion rights. Management, at its discretion may, at any time,
convert each share of AR-CombiMatrix stock into a number of shares of AR-Acacia
Technologies stock at a 10% premium over the average market price.
Each new class of stock is designed to reflect the financial performance of
the respective group, rather than the performance of Acacia Research as a whole.
The chief mechanisms intended to cause the AR-CombiMatrix stock and the
AR-Acacia Technologies stock to reflect the financial performance of the
respective group are provisions in Acacia Research's proposed restated
certificate of incorporation governing dividends and distributions. Under these
provisions, Acacia Research will:
o factor the assets and liabilities and income or losses attributable to
the respective group into the determination of the amount available to
pay dividends on the shares issued for the respective group; and
o require Acacia Research to exchange, redeem or distribute a dividend
on the stock of a group if all or substantially all of the assets
allocated to the respective group are sold to a third party.
Management of Acacia Research cannot assure the holders of AR-CombiMatrix
stock or AR-Acacia Technologies stock that the market values of the two share
classes will in fact reflect the separate performance of each class of stock.
Holders of AR-CombiMatrix stock and AR-Acacia Technologies stock will be
stockholders of Acacia Research and as a result, will be subject to all of the
risks of an investment in Acacia Research and all of its businesses, assets and
liabilities. Financial effects from one group that affect Acacia Research's
consolidated results of operations or financial condition could, if significant,
affect the results of operations or financial condition of the other group.
Acacia Research's board of directors, subject to state laws and limits in
our proposed restated certificate of incorporation, including those discussed
above, will be able to declare dividends on AR-CombiMatrix stock and AR-Acacia
Technologies stock in its discretion. To date, Acacia Research has never paid or
declared cash dividends
-37-
on shares of our stock, nor do we anticipate paying cash dividends on either of
the two new classes of stock in the foreseeable future.
The allocation of corporate expenses is generally based on utilization and
is in accordance with Acacia Research Corporation's proposed restated
certificate of incorporation, for the purpose of measuring earnings available to
stockholders of AR-CombiMatrix stock and AR-Acacia Technologies stock and does
not necessarily reflect the financial condition, cash flows and operating
results of each division as if it were a stand-alone entity. The management and
allocation policies applicable to the preparation of the financial statements of
the CombiMatrix group and the Acacia Technologies group may be modified or
rescinded, or additional policies may be adopted, at the sole discretion of
Acacia Research's board of directors at any time without approval of the
stockholders. Acacia Research's management and board of directors have the
ability to: transfer funds between the groups at the discretion of management
and the board of directors; allocate financing costs between groups that may not
reflect the separate borrowing costs of the groups; and charge a greater or
lesser portion of the total corporate tax liability to the groups than that
which would have been charged if the groups were stand-alone entities.
Acacia Research's management and board of directors do not presently intend
to modify or rescind the methodologies and assumptions underlying the
allocations in the pro forma financial statements.
I. The pro forma weighted average shares for both basic and diluted
earnings (loss) per share was determined as follows:
FOR THE SIX
FOR THE YEAR ENDED MONTHS ENDED
DECEMBER 31, 2001 JUNE 30, 2002
------------------ -------------
AR-Acacia Technologies stock:
Weighted Average Number of AR - Acacia Technologies shares
Outstanding Used in Computation of Basic EPS (1): 19,640,808 19,640,808
Dilutive Effect of Outstanding Stock Options and Warrants (2) 536,154 --
---------- ----------
Weighted Average Number of AR - Acacia Technologies shares
Outstanding Used in Computation of Diluted EPS: 20,176,962 19,640,808
========== ==========
AR-CombiMatrix stock:
Weighted Average Number of AR - CombiMatrix shares
Outstanding Used in Computation of Basic LPS (3): 22,950,551 22,950,551
Dilutive Effect of Outstanding Stock Options and Warrants (4) -- --
---------- ----------
Weighted Average Number of AR - CombiMatrix shares
Outstanding Used in Computation of Diluted LPS: 22,950,551 22,950,551
========== ==========
----------
(1) Represents number of shares that would be issued assuming the transaction
occurred on June 30, 2002. Weighted average number of AR-Acacia
Technologies shares outstanding determined as if shares were issued as of
the beginning of 2001.
(2) Represents potential AR-Acacia Technologies shares for 2001 calculated
using the treasury method. Potential common shares of 536,154 at June 30,
2002 have been excluded from the per share calculation because the effect
of their inclusion would be anti-dilutive.
(3) Calculation of Weighted Average Number of AR - CombiMatrix shares
Outstanding:
-38-
AR-CombiMatrix
Shares to be
AR-CombiMatrix Issued to
Shares to be CombiMatrix Total AR-
Issued to Acacia Corporation CombiMatrix
Research Minority Shares to be
Stockholders Stockholders Issued
---------------- -------------- ------------
Acacia Research Corporation common stock outstanding at
June 30, 2002 19,640,808
CombiMatrix Corporation common stock outstanding at
June 30, 2002 22,950,551
Conversion ratio 1 to .5582 1 to .5223
Acacia Research shares converted to AR-CombiMatrix shares 10,963,277 10,963,277
CombiMatrix Corporation shares converted to ARCombiMatrix
shares 11,987,274 11,987,274
-----------
Total 22,950,551
===========
(4) Potential common shares of 3,791,942 at June 30, 2002 have been excluded
from the per share calculation because the effect of their inclusion would
be anti-dilutive.
J. Net income attributed to the AR-CombiMatrix stock was determined as
follows:
Reference to
Notes to
Unaudited Pro
For the Year Forma
Ended For the Six Consolidated
December 31, Months Ended Financial
2001 June 30, 2002 Statements
------------ ------------- -------------
2001 CombiMatrix group net loss before pro forma adjustments: $(28,029) $ (9,482)
======== ========
Pro forma adjustments:
Stock based compensation amortization (406) (203) Note (F)
Amortization of intangibles (1,114) (557) Note (E)
Tax effects of amortization of intangibles 442 221 Note (E)
Elimination of minority interests share of losses (18,757) (6,334) Note (D)
-------- --------
Pro forma net loss attributed to the AR-CombiMatrix stock $(47,865) $(16,355)
======== ========
K. SUBSEQUENT EVENTS.
On September 30, 2002, CombiMatrix Corporation and Dr. Donald Montgomery,
an officer and stockholder of CombiMatrix Corporation, entered into a settlement
agreement with Nanogen, Inc. to settle all pending litigation between the
parties. Pursuant to the terms of the settlement agreement, CombiMatrix
Corporation agreed to issue 4,016,346 shares, or 17.5% of its outstanding shares
post-issuance, to Nanogen, Inc., subject to antidilution provisions under
specified circumstances for a period of up to three years. Due to the
significant impact of the settlement agreement with Nanogen, Inc. on the number
of shares of CombiMatrix Corporation that Acacia Research did not already own as
of October 3, 2002 and on the purchase price of the CombiMatrix Corporation
common stock that Acacia Research did not already own as of November 1, 2002,
the unaudited pro forma financial statements as of and for the six months ended
June 30, 2002 and for the year ended December 31, 2001 also give effect to the
impact of the CombiMatrix Corporation common shares issued to Nanogen, Inc.
pursuant to the settlement agreement executed on September 30, 2002.
Accordingly, the purchase price for the CombiMatrix Corporation common stock
that Acacia Research does not already own as of June 30, 2002 includes, on a pro
forma basis, the 4,016,346 shares issued to Nanogen, Inc. pursuant to the
settlement agreement as if the settlement was executed on June 30, 2002.
Additionally, all pro forma share and per-share information presented reflects
the impact of the settlement agreement with Nanogen, Inc. as if the settlement
was executed on June 30, 2002.
The issuance of shares by CombiMatrix Corporation to Nanogen, Inc.
decreases Acacia Research Corporations consolidated ownership interest in
CombiMatrix Corporation from 58% to 48%. Acacia Research
-39-
Corporation continues to possess the ability to direct or cause the direction of
the management and policies of CombiMatrix Corporation, primarily through Acacia
Research Corporation's ability to elect the majority of the board of directors
of CombiMatrix Corporation, pursuant to a stockholder agreement with an officer
of CombiMatrix Corporation. This stockholder agreement stipulates that,
collectively, Acacia Research Corporation and the officer who is party to the
stockholder agreement, will vote their shares such that the board will be
comprised of the directors nominated by Acacia Research Corporation and the
stockholder. The stockholder is generally prohibited from selling his shares and
Acacia Research Corporation has a right of first refusal should the stockholder
wish to sell his shares. Accordingly, the Company will continue to account for
its investment in CombiMatrix Corporation under the consolidation method of
accounting.
The reflection, on a pro forma basis, of the issuance of common stock by
CombiMatrix Corporation to Nanogen, Inc. as described above does not have any
impact on the historical financial statements as of and for the six months ended
June 30, 2002, or for the year ended December 31, 2001 presented in the
unaudited pro forma financial statements herein.
The book value of CombiMatrix Corporation as of June 30, 2002 and September
30, 2002 was $15,017,109 and $5,393,484, respectively. Approximately $1 million
of the decrease in book value is due to the settlement of CombiMatrix
Corporation's litigation with Nanogen, Inc. The remainder of such decrease is
the result of operating losses incurred in the ordinary course of CombiMatrix
Corporation's business, and not from any material adverse developments.
CombiMatrix Corporation incurs substantial research and development in the
ordinary course of its business, and defers the recognition of substantial
portions of its revenue under its agreements with Roche until the achievement of
all of the relevant milestones, resulting in operating losses and a decrease in
book value.
-40-
RISK FACTORS
The risk factors beginning on this page discuss risks arising from a
capital structure with two separate classes of common stock. The risk factors
beginning on page 48 discuss risks related to the merger. The risk factors
beginning on page 50 discuss risks related to each group.
RISKS RELATING TO THE RECAPITALIZATION
YOU WILL REMAIN STOCKHOLDERS OF ONE COMPANY, AND THE FINANCIAL PERFORMANCE OF
ONE GROUP COULD AFFECT THE OTHER, THUS EXPOSING THE HOLDERS OF EACH GROUP'S
STOCK TO THE RISKS OF AN INVESTMENT IN THE ENTIRE COMPANY.
Holders of AR-CombiMatrix stock and AR-Acacia Technologies stock will be
stockholders of a single company. The CombiMatrix group and the Acacia
Technologies group are not separate legal entities. As a result, stockholders
will continue to be subject to all of the risks of an investment in Acacia
Research and all of our businesses, assets and liabilities. The issuance of the
AR-CombiMatrix stock and the AR-Acacia Technologies stock and the allocation of
assets and liabilities and stockholders' equity between the CombiMatrix group
and the Acacia Technologies group will not result in a distribution or spin-off
to stockholders of any of our assets or liabilities and will not affect
ownership of our assets or responsibility for our liabilities or those of our
subsidiaries. The assets we attribute to one group could be subject to the
liabilities of the other group, whether such liabilities arise from lawsuits,
contracts or indebtedness that we attribute to the other group. If we are unable
to satisfy one group's liabilities out of the assets we attribute to it, we may
be required to satisfy those liabilities with assets we have attributed to the
other group.
Financial effects from one group that affect our consolidated results of
operations or financial condition could, if significant, affect the results of
operations or financial condition of the other group and the market price of the
common stock relating to the other group. In addition, net losses of either
group and dividends or distributions on, or repurchases of, either class of
common stock will reduce the funds we can pay as dividends on each class of
common stock under Delaware law. For these reasons, you should read our
consolidated financial information with the financial information we provide for
each group.
THE HOLDERS OF AR-COMBIMATRIX STOCK AND THE HOLDERS OF AR-ACACIA TECHNOLOGIES
STOCK WILL HAVE ONLY LIMITED SEPARATE STOCKHOLDER RIGHTS.
Holders of AR-CombiMatrix stock and AR-Acacia Technologies stock will have
the rights customarily held by common stockholders. They will have these
specific rights related to their corresponding group:
o certain rights with regard to dividends and liquidation;
o requirements for a mandatory dividend, redemption or conversion upon
the disposition of all or substantially all of the assets of their
corresponding group; and
o a right to vote on matters as a separate voting class in the limited
circumstances provided under Delaware law, by stock exchange rules or
as determined by our board of directors (such as an amendment of our
certificate of incorporation that changes the rights, privileges or
preferences of the class of stock held by such stockholder).
We will not hold separate stockholder meetings for holders of
AR-CombiMatrix stock and AR-Acacia Technologies stock.
-41-
THE HOLDERS OF AR-COMBIMATRIX STOCK AND THE HOLDERS OF AR-ACACIA TECHNOLOGIES
STOCK WILL HAVE CERTAIN LIMITS ON THEIR RESPECTIVE VOTING POWERS.
GROUP COMMON STOCK WITH A MAJORITY OF VOTING POWER CAN CONTROL VOTING
OUTCOMES.
The holders of AR-CombiMatrix stock and AR-Acacia Technologies stock will
vote together as a single class, except in limited circumstances. If a separate
vote on a matter by the holders of either the AR-CombiMatrix stock or the
AR-Acacia Technologies stock is not required under Delaware law or by stock
exchange rules, and if our board of directors does not require a separate vote,
either class of common stock that is entitled to more than the number of votes
required to approve such matter could control the outcome of such vote - even if
the matter involves a divergence or conflict of the interests between the
holders of the AR-CombiMatrix stock and the AR-Acacia Technologies stock. In
addition, if the holders of common stock having a majority of the voting power
of all shares of common stock outstanding approve a merger, the terms of which
did not require separate class voting under stock exchange rules, then the
merger could be consummated -- even if the holders of a majority of either class
of common stock were to vote against the merger.
GROUP COMMON STOCK WITH LESS THAN MAJORITY VOTING POWER CAN BLOCK ACTION IF
A CLASS VOTE IS REQUIRED.
If Delaware law, stock exchange rules or our board of directors requires a
separate vote on a matter by the holders of either the AR-CombiMatrix stock or
the AR-Acacia Technologies stock, such as a proposal to amend the terms of one
class of stock, those holders could prevent approval of the matter, even if the
holders of a majority of the total number of votes cast or entitled to be cast,
voting together as a class, were to vote in favor of it.
HOLDERS OF ONLY ONE CLASS OF COMMON STOCK CANNOT ENSURE THAT THEIR VOTING
POWER WILL BE SUFFICIENT TO PROTECT THEIR INTERESTS.
Since the relative voting power per share of AR-CombiMatrix stock and
AR-Acacia Technologies stock will fluctuate based on the market values of the
two classes of common stock, the relative voting power of a class of common
stock could decrease. As a result, holders of shares of only one of the two
classes of common stock cannot ensure that their voting power will be sufficient
to protect their interests. Please see page 80 for an example of the calculation
of the number of votes and relative voting power of each stock at assumed
trading prices.
THE RESTATED CERTIFICATE OF INCORPORATION MAY BE AMENDED TO INCREASE OR DECREASE
THE AUTHORIZED SHARES OF EITHER CLASS OF COMMON STOCK WITHOUT THE APPROVAL OF
EACH CLASS VOTING SEPARATELY.
The restated certificate of incorporation provides that an amendment to the
restated certificate to increase or decrease the number of authorized shares of
either class of common stock will require the approval of the holders of a
majority of the voting power of all shares of common stock, voting together as a
single class, and will not require the approval of each class of stock voting as
a separate class. Accordingly, if the holders of one class of common stock hold
a majority of the voting power of all shares of common stock, then that majority
could approve an amendment to the restated articles to increase or decrease the
authorized shares of stock of either class without the approval of the holders
of the minority class of stock.
STOCKHOLDERS MAY NOT HAVE ANY REMEDIES FOR BREACH OF FIDUCIARY DUTIES IF ANY
ACTION BY OUR DIRECTORS OR OFFICERS HAS A DISADVANTAGEOUS EFFECT ON EITHER CLASS
OF COMMON STOCK.
Stockholders may not have any remedies if any action or decision of our
directors and officers has a disadvantageous effect on either class of common
stock compared to the other class of common stock. We are not aware of any legal
precedent under Delaware law involving the fiduciary duties of directors and
officers of corporations having two classes of common stock, or separate classes
or series of capital stock, the rights of which, like the AR-CombiMatrix stock
and AR-Acacia Technologies stock, are defined by reference to separate
businesses of the corporation.
Principles of Delaware law established in cases involving differing
treatment of two classes of capital stock or two groups of holders of the same
class of capital stock provide that a board of directors owes an equal duty to
all
-42-
stockholders regardless of class or series. Under these principles of Delaware
law and the related principle known as the "business judgment rule," absent
abuse of discretion, a good faith business decision made by a disinterested and
adequately informed board of directors, board of directors' committee or officer
with respect to any matter having different effects on holders of AR-CombiMatrix
stock and holders of AR-Acacia Technologies stock would be a defense to any
challenge to such determination made by or on behalf of the holders of either
class of common stock.
Following the completion of the recapitalization and the merger, our
executive officers, directors and their affiliates will beneficially own
approximately 5.1% of the outstanding AR-CombiMatrix stock and 8.8% of the
outstanding AR-Acacia Technologies stock, assuming the conversion of each share
of Acacia Research common stock into 0.5582 share of AR-CombiMatrix stock and
one share of AR-Acacia Technologies stock.
NUMEROUS POTENTIAL CONFLICTS OF INTERESTS EXIST BETWEEN THE AR-COMBIMATRIX STOCK
AND THE AR-ACACIA TECHNOLOGIES STOCK WHICH MAY BE DIFFICULT TO RESOLVE BY OUR
BOARD OR WHICH MAY BE RESOLVED ADVERSELY TO ONE OF THE CLASSES.
The existence of separate classes of common stock could give rise to
occasions when the interests of the holders of AR-CombiMatrix stock and
AR-Acacia Technologies stock diverge or conflict. Examples include
determinations by our directors or officers to:
o pay or omit the payment of dividends on AR-CombiMatrix stock or
AR-Acacia Technologies stock;
o allocate consideration to be received by holders of each of the
classes of common stock in connection with a merger or consolidation
involving Acacia Research;
o convert one class of common stock into shares of the other;
o approve certain dispositions of the assets of either group;
o allocate the proceeds of future issuances of our stock either to the
Acacia Technologies group or the CombiMatrix group;
o allocate corporate opportunities between the groups; and
o make other operational and financial decisions with respect to one
group that could be considered detrimental to the other group.
When making decisions with regard to matters that create potential
diverging or conflicting interests, our directors and officers will act in
accordance with their fiduciary duties, the terms of the restated certificate of
incorporation, and, to the extent applicable, the management and allocation
policies described herein.
THE PERFORMANCE OF ONE GROUP OR THE DIVIDENDS PAID TO ONE GROUP MAY
ADVERSELY AFFECT THE DIVIDENDS AVAILABLE FOR THE OTHER GROUP.
Our board of directors currently has no intention to pay dividends on the
AR-CombiMatrix stock or the AR-Acacia Technologies stock. Determinations as to
future dividends on the AR-CombiMatrix stock and the AR-Acacia Technologies
stock will be based primarily on the financial condition, results of operations
and business requirements of the relevant group and Acacia Research as a whole.
Subject to the limitations referred to below, our board of directors has the
authority to declare and pay dividends on the AR-CombiMatrix stock and the
AR-Acacia Technologies stock in any amount and could, in its sole discretion,
declare and pay dividends exclusively on the AR-CombiMatrix stock, exclusively
on the AR-Acacia Technologies stock, or on both, in equal or unequal amounts.
Our board of directors will not be required to consider the amount of dividends
previously declared on each class, the respective voting or liquidation rights
of each class or any other factor.
-43-
The performance of one group may cause our board of directors to pay more
or less dividends on the common stock relating to the other group than if that
other group was a stand-alone company. In addition, Delaware law and the new
certificate of incorporation impose limitations on the amount of dividends which
may be paid on each class of common stock.
PROCEEDS OF MERGERS OR CONSOLIDATIONS MAY BE ALLOCATED UNFAVORABLY.
The recapitalization proposal does not contain any provisions governing how
consideration to be received by holders of common stock in connection with a
merger or consolidation involving Acacia Research is to be allocated among
holders of each class of common stock. Our board of directors will determine the
percentage of the consideration to be allocated to holders of each class of
common stock in any such transaction. Such percentage may be materially more or
less than that which might have been allocated to such holders had our board of
directors chosen a different method of allocation.
HOLDERS OF EITHER CLASS OF COMMON STOCK MAY BE ADVERSELY AFFECTED BY A
CONVERSION OF GROUP COMMON STOCK.
Our board of directors could, in its sole discretion and without
stockholder approval, determine to convert shares of AR-Acacia Technologies
stock into shares of AR-CombiMatrix stock, or vice versa, at a time when either
or both classes of common stock may be considered to be overvalued or
undervalued. Any such conversion would dilute the interests in Acacia Research
of the holders of the class of common stock being issued in the conversion. It
could also give holders of shares of the class of common stock converted a
greater or lesser premium than any premium that might be paid by a third-party
buyer of all or substantially all of the assets of the group whose stock is
converted.
HOLDERS OF EITHER CLASS OF COMMON STOCK COULD BE ADVERSELY AFFECTED BY A
DISPOSITION OF THE ASSETS ALLOCATED TO THEIR RESPECTIVE GROUPS.
Our board of directors could, in its sole discretion and without
stockholder approval, determine to dispose of all or substantially all the
assets of a group. If a disposition of group assets occurs at a time when those
assets are considered undervalued, then holders of that group's stock would
receive less consideration than they could have received had the assets been
disposed of at a time when they had a higher value.
PROCEEDS OF FUTURE ISSUANCES OF OUR STOCK COULD BE ALLOCATED UNFAVORABLY.
We may in the future issue a new class of stock, such as a class of
preferred stock, or additional shares of AR-CombiMatrix stock or AR-Acacia
Technologies stock. Proceeds from any future issuance of any class of stock
would be allocated among the CombiMatrix or the Acacia technologies group as
determined by our board of directors. There is no requirement that the proceeds
from an issuance of AR-CombiMatrix stock or AR-Acacia Technologies stock be
allocated to the corresponding group. Such allocations might be materially more
or less for the respective groups than what might have been allocated had our
board of directors chosen a different allocation method. Also, any designated
preferred class may be designed to reflect the performance of Acacia Research as
a whole, rather than the performance of the CombiMatrix group or the Acacia
Technologies group.
ALLOCATION OF CORPORATE OPPORTUNITIES COULD FAVOR ONE GROUP OVER ANOTHER.
Our board of directors may be required to allocate corporate opportunities
between the groups. In some cases, our directors could determine that a
corporate opportunity, such as a business that we are acquiring, should be
shared by the groups. Any such decisions could favor one group at the expense of
the other.
OTHER OPERATIONAL AND FINANCIAL DECISIONS WHICH MAY FAVOR ONE GROUP OVER
THE OTHER.
Our board of directors or our senior officers will review other operational
and financial matters affecting the CombiMatrix group and the Acacia
Technologies group, including the allocation of financing resources and capital,
technology and know-how and corporate overhead, taxes, debt, interest and other
matters. Any decision of our board of directors or our senior officers in these
matters could favor one group at the expense of the other.
-44-
OUR BOARD OF DIRECTORS MAY CHANGE OUR MANAGEMENT AND ALLOCATION POLICIES WITHOUT
STOCKHOLDER APPROVAL TO THE DETRIMENT OF EITHER GROUP.
Our board of directors may modify or rescind our policies with respect to
the allocation of corporate overhead, taxes, debt, interest and other matters,
or may adopt additional policies, in its sole discretion without stockholder
approval. However, our board of directors has no present intention to do so. A
decision to modify or rescind these policies, or adopt additional policies could
have different effects on holders of either class of common stock or could
result in a benefit or detriment to one class of stockholders compared to the
other class. Our board of directors will make any such decision in accordance
with its good faith business judgment that the decision is in the best interests
of Acacia Research and all of our stockholders as a whole.
EITHER GROUP MAY FINANCE THE OTHER GROUP ON TERMS UNFAVORABLE TO ONE OF THE
GROUPS.
We may transfer cash and other property between groups to finance their
business activities. The group providing the financing will be subject to the
risks relating to the group receiving the financing. We will account for those
transfers generally as a short-term or long-term loan between groups or as a
repayment of a previous borrowing.
THERE ARE LIMITS ON THE CONSIDERATION WHICH MAY BE RECEIVED BY THE STOCKHOLDERS
IN THE EVENT OF THE DISPOSITION OF ASSETS OF A GROUP.
The restated certificate of incorporation provides that if a disposition of
all or substantially all of the properties and assets of either group occurs, we
must, subject to certain exceptions:
o distribute through a dividend or redemption to holders of the class of
common stock relating to such group an amount equal to the net
proceeds of such disposition; or
o convert at a 10% premium such common stock into shares of the class of
common stock relating to the other group.
If the group subject to the disposition were a separate, independent
company and its shares were acquired by another person, certain costs of that
disposition, including corporate level taxes, might not be payable in connection
with that acquisition. As a result, stockholders of the separate, independent
company might receive a greater amount than the net proceeds that would be
received by holders of the class of common stock relating to that group if the
assets of such group were sold. In addition, we cannot assure you that the net
proceeds per share of the common stock relating to that group will be equal to
or more than the market value per share of such common stock prior to or after
announcement of a disposition.
The term "substantially all of the properties and assets" of a group is
subject to potentially conflicting interpretations. Resolution of such a dispute
could adversely impact the holders of either the class of common stock related
to the assets being disposed or the holders of the other class because the
consideration, if any, to be received by the holders of the class related to the
disposed assets may depend on whether the disposition involved "substantially
all" of the properties and assets of that class.
HOLDERS OF EITHER CLASS OF COMMON STOCK MAY BE ADVERSELY AFFECTED BY A
REDEMPTION OF THEIR COMMON STOCK.
We are entitled to redeem the outstanding common stock relating to a group
when all or substantially all of that group's assets are sold. We can redeem the
assets for cash, securities, a combination of cash and securities or other
property at fair value. A disposition-related redemption could occur when the
assets being disposed of are considered undervalued. If that is the case, the
holders of our common stock related to that group would receive less
consideration for their shares than they may deem reasonable.
We can also redeem on a pro rata basis all of the outstanding shares of a
group's common stock for shares of the common stock of one or more of our
wholly-owned subsidiaries. If this were to occur, the holders of the redeemed
class of common stock would no longer have stockholder voting rights in Acacia
Research or any other
-45-
benefits to be derived from holding a class of stock in Acacia Research. In
addition, if the outstanding shares of a class of our common stock are redeemed
for shares that are not publicly traded, the holders of such redeemed stock will
no longer be able to publicly trade their shares and accordingly their
investment will be substantially less liquid.
THE PROPOSED CAPITAL STRUCTURE AND THE VARIABLE VOTE PER SHARE COULD ENABLE A
POTENTIAL ACQUIRER TO TAKE CONTROL OF ACACIA RESEARCH THROUGH THE ACQUISITION OF
ONLY ONE OF THE CLASSES OF OUR COMMON STOCK.
A potential acquirer could acquire control of Acacia Research by acquiring
shares of common stock having a majority of the voting power of all shares of
common stock outstanding. Such a majority could be obtained by acquiring a
sufficient number of shares of both classes of common stock or, if one class of
common stock has a majority of such voting power, only shares of that class. We
expect that initially the AR-CombiMatrix stock will have a majority of the
voting power. As a result, initially, it might be possible for an acquiror to
obtain control of Acacia Research by purchasing only shares of AR-CombiMatrix
stock.
DECISIONS BY DIRECTORS AND OFFICERS THAT AFFECT DIFFERENTLY ONE CLASS OF OUR
COMMON STOCK COMPARED TO THE OTHER COULD ADVERSELY AFFECT THE MARKET VALUE OF
EITHER OR BOTH OF THE CLASSES OF OUR COMMON STOCK.
The relative voting power per share of the AR-CombiMatrix stock and the
AR-Acacia Technologies stock and the number of shares of one class of common
stock issuable upon the conversion of the other class of common stock will vary
depending upon the relative market values of the AR-CombiMatrix stock and the
AR-Acacia Technologies stock. The market value of either or both classes of
common stock could be affected by market reaction to decisions by our board of
directors or our management that investors perceive to affect differently one
class of common stock compared to the other. These decisions could involve
changes to our management and allocation policies, allocations of corporate
opportunities and financing resources between groups, and changes in dividend
policies.
SINCE THERE HAS BEEN NO PRIOR MARKET FOR THE AR-COMBIMATRIX STOCK OR THE
AR-ACACIA TECHNOLOGIES STOCK, WE CANNOT PROVIDE ANY ASSURANCES AS TO THE MARKET
PRICE OR LIQUIDITY OF EACH OF THOSE STOCKS.
Because there has been no prior market for the AR-Acacia Technologies stock
or the AR-CombiMatrix stock, we can not assure you of their respective market
prices or liquidity following the recapitalization. If an active market does
develop, we can not assure you that it will be maintained. Until an orderly
market does develop for the AR-CombiMatrix stock and the AR-Acacia Technologies
stock, their respective trading prices may fluctuate significantly.
MARKET VALUE OF AR-COMBIMATRIX STOCK AND AR-ACACIA TECHNOLOGIES STOCK RECEIVED
IN THE RECAPITALIZATION MAY BE LESS THAN MARKET VALUE OF OUR EXISTING COMMON
STOCK.
We cannot assure you that the combined market values of the shares of
AR-Acacia Technologies stock and AR-CombiMatrix stock received in the
recapitalization will equal or exceed the market value of a share of our
existing common stock prior to the recapitalization. The capital structure of
having two separate classes of common stock for the two groups is more complex
than having a single class of common stock and not directly comparable to common
stock of companies that have been spun off by their parent companies. The
complex nature of the two classes of stock, and the potential difficulty that
investors may have in understanding these terms, may adversely affect the market
price of the AR-CombiMatrix stock and the AR-Acacia Technologies stock. Examples
of these terms include:
o board discretion in making determinations affecting the two groups,
such as handling potential conflicts of interest between the two
groups and possibly changing allocation policies between the groups;
o redemption and conversion rights applicable upon the disposition of
all or substantially all of the assets attributed to either group;
-46-
o the ability of our board to convert shares of one class of common
stock into shares of the other class of common stock; and
o variable voting rights of the two classes of stock.
THE AR-COMBIMATRIX STOCK AND AR-ACACIA TECHNOLOGIES STOCK MIGHT NOT QUALIFY FOR
LISTING ON THE NASDAQ NATIONAL MARKET, WHICH COULD ADVERSELY AFFECT THE
LIQUIDITY AND PRICE OF THE STOCK.
We have applied for listing of the AR-CombiMatrix stock on the NASDAQ
National Market. Any approval would be conditioned upon the stock closing at a
minimum bid price of five dollars per share on the first trading day following
the closing of the merger and recapitalization. While we anticipate that the
stock will meet this trading price requirement, if it does not, the stock would
not qualify for continued listing on the NASDAQ National Market and would
instead be listed on the NASDAQ SmallCap Market. If the closing bid price of the
stock on the first trading day were less than four dollars per share, the stock
would not qualify for the NASDAQ SmallCap Market and would trade on the OTC
Bulletin Board or on another exchange on which we may apply for listing.
NASDAQ has informed us that the AR-Acacia Technologies stock will be
treated as a continued listing on the NASDAQ National Market. In order to
continue to qualify for NASDAQ National Market listing, the minimum bid price of
the AR-Acacia Technologies stock must be one dollar per share or higher. If the
minimum bid price requirement were not satisfied, the AR-Acacia Technologies
stock would be listed on the NASDAQ SmallCap Market, the OTC Bulletin Board or
on another exchange on which we may apply for listing.
If the AR-CombiMatrix stock or AR-Acacia Technologies stock does not
qualify for listing or continued listing, as applicable, on the NASDAQ National
Market , the liquidity and price of such stock could be adversely affected by
internal policies of some institutional investors prohibiting the purchase of
low-priced stocks. The failure of either class of stock to qualify for listing
or continued listing on the NASDAQ National Market could also adversely affect
analyst coverage of such class or classes of stock, which in turn could
adversely affect the liquidity and share price of such stock. Additionally,
transaction costs on low-priced stocks such as brokers' commissions generally
represent a higher percentage of their total share value than would be the case
with higher-priced stocks.
INVESTORS MAY NOT VALUE THE AR-COMBIMATRIX STOCK AND THE AR-ACACIA TECHNOLOGIES
STOCK BASED ON GROUP FINANCIAL INFORMATION AND POLICIES.
We cannot assure you that investors will value the AR-CombiMatrix stock and
the AR-Acacia Technologies stock based on the reported financial results and
prospects of the separate groups or the dividend policies established by our
board of directors with respect to those groups. Holders of AR-CombiMatrix stock
and AR-Acacia Technologies stock will continue to be common stockholders of
Acacia Research subject to all the risks associated with an investment in Acacia
Research as a whole. Additionally, the separate stockholder rights related to
each group are limited and relate to events that may never occur such as
dividend and liquidation rights and the disposition of all or substantially all
of the assets of a group. Accordingly, investors may discount the value of
AR-CombiMatrix stock and AR-Acacia Technologies stock because both groups are
part of a common enterprise rather than a stand-alone entity and each class of
stock has limited separate stockholder rights.
HOLDERS OF AR-COMBIMATRIX STOCK AND AR-ACACIA TECHNOLOGIES STOCK MAY NOT RECEIVE
A PREMIUM FROM AN INVESTOR ACQUIRING CONTROL OF THEIR RESPECTIVE CLASSES OF
STOCK.
Control of AR-CombiMatrix stock or AR-Acacia Technologies stock may not
provide control of Acacia Research as a whole. Accordingly, unlike many
acquisition transactions, holders of AR-CombiMatrix stock and AR-Technologies
stock may not receive a controlling interest premium from an investor acquiring
control of their respective classes of stock.
-47-
THERE ARE CERTAIN PROVISIONS IN THE PROPOSED RECAPITALIZATION THAT COULD HAVE
ANTITAKEOVER EFFECTS.
The existence of the two classes of common stock could, under certain
circumstances, prevent stockholders from profiting from an increase in the
market value of their shares as a result of a change in control of Acacia
Research by delaying or preventing such change in control. The existence of two
classes of common stock could present complexities and could, in certain
circumstances, pose obstacles, financial and otherwise, to an acquiring person.
We could, in the sole discretion of our board of directors and without
stockholder approval, exercise the right to convert the shares of one class of
common stock into shares of the other at a 10% premium over their respective
average market values. This conversion could result in additional dilution to
persons seeking control of Acacia Research.
Our board of directors could issue shares of preferred stock or common
stock that could be used to create voting or other impediments to discourage
persons seeking to gain control of Acacia Research, and preferred stock could
also be privately placed with purchasers favorable to our board of directors in
opposing such action.
THE INTERNAL REVENUE SERVICE COULD ASSERT THAT THE RECEIPT OF GROUP COMMON STOCK
IS TAXABLE.
We have been advised by PricewaterhouseCoopers LLP that no income, gain or
loss will be recognized by you or us for federal income tax purposes as a result
of the recapitalization proposal, except for any cash received instead of
fractional shares of AR-CombiMatrix stock. Nevertheless, there are no court
decisions or other authorities bearing directly on the effect of the features of
the AR-CombiMatrix stock and the AR-Acacia Technologies stock. In addition, the
Internal Revenue Service has announced that it will not issue rulings on the
characterization of stock with characteristics similar to the AR-CombiMatrix
stock and the AR-Acacia Technologies stock. It is possible, therefore, that the
Internal Revenue Service could in the future assert that the receipt of the
AR-CombiMatrix stock or the AR-Acacia Technologies stock as well as the
subsequent exchange of such common stock could be taxable to you and to us.
RISKS RELATING TO THE MERGER
HOLDERS OF EXISTING COMBIMATRIX CORPORATION COMMON STOCK WILL RECEIVE A FIXED
NUMBER OF SHARES OF AR-COMBIMATRIX STOCK DESPITE CHANGES IN THE MARKET VALUE OF
OUR COMMON STOCK PRIOR TO THE MERGER.
Upon completion of the merger, each share of existing CombiMatrix
Corporation common stock will be exchanged for one share of AR-CombiMatrix
stock. This exchange ratio will not be adjusted for changes in the market price
of either CombiMatrix Corporation common stock or Acacia Research common stock,
and neither party to the merger agreement is permitted to terminate the merger
agreement solely because of changes in the market price of either party's common
stock.
THE MERGER MAY GO FORWARD EVEN THOUGH THERE IS A CHANGE THAT IS MATERIALLY
ADVERSE TO THE BUSINESS, ASSETS, LIABILITIES OR FINANCIAL CONDITION OF ACACIA
RESEARCH, THE ACACIA TECHNOLOGIES GROUP OR THE COMBIMATRIX GROUP.
In general, either Acacia Research or CombiMatrix Corporation can refuse to
complete the merger if there is a material adverse change affecting the other
party before the closing. Nevertheless, certain material changes, including a
change in general economic conditions or changes affecting the industries
generally in which the parties operate, an adverse change related to any change
in accounting requirements or principles or any change in applicable laws, rules
or regulations or in the interpretation of such accounting requirements or
principles, or a decrease in the market price or trading volume of the parties'
common stock or litigation relating to such decrease, will not prevent the
merger from going forward, even if they would have a material adverse effect on
the Acacia Technologies group or the CombiMatrix group.
-48-
THE MERGER COULD ADVERSELY AFFECT OUR COMBINED FINANCIAL RESULTS.
If the benefits of the merger do not exceed the costs associated with the
merger, including any dilution to our stockholders resulting from the issuance
of additional shares in connection with the merger, our financial results,
including earnings per share, could be adversely affected.
The application of purchase accounting to the merger transaction will
result in the recording of approximately $13.5 million in identifiable
intangibles and $27.2 million in goodwill, based upon the assumed stock price of
AR-CombiMatrix stock as set forth in the unaudited pro forma financial
information included elsewhere herein. The assumed stock price is not intended
to be indicative of the actual stock price and has been used solely for the
purpose of developing the unaudited pro forma financial information. The actual
stock price may be significantly different than the assumed stock price, and the
estimate of intangible assets may therefore also be significantly different than
the amounts set forth below. Intangible assets and goodwill recorded in
connection with the merger transaction are subject to reviews for impairment.
Identifiable intangibles are required to be reviewed for impairment whenever
events or changes in circumstances, indicate that the carrying amount of an
asset may not be recoverable. Examples of such events or changes in
circumstances include: a significant decrease in the market value of an asset, a
significant change in the extent or manner in which an asset is used or a
significant adverse change in legal factors or in the business climate that
could affect the value of an asset.
Goodwill is required to be tested for impairment on an annual basis and
between annual tests if an event occurs or circumstances change that would more
likely than not reduce the fair value of a reporting unit below its carrying
amount. Examples of such events or circumstances include: a significant adverse
change in legal factors or in the business climate, an adverse action or
assessment by a regulator, or unanticipated competition.
Intangible assets and or goodwill amounts recorded may be determined to be
impaired resulting in the recording of a charge to income for the amount that
the carrying value of such assets exceeds their fair value.
Costs associated with the merger transaction, including related legal,
accounting, investment advisor and other consulting and administrative costs are
estimated to total $800,000. In addition, consistent with generally accepted
accounting principles in the United States of America, amounts assigned to
purchased in-process research and development (related to CombiMatrix
Corporation research and development projects that are still in process at the
closing of the merger, but which, if unsuccessful, have no alternative future
use) must be charged as expenses on the date that the merger is consummated.
Estimated purchased in-process research and development costs associated with
the merger transaction total approximately $10.3 million and will be recorded as
a charge to income in Acacia Research's consolidated statement of income and
attributed to the CombiMatrix group immediately upon consummation of the merger
transaction.
THE MERGER MAY TRIGGER CHANGE OF CONTROL PROVISIONS CONTAINED IN EMPLOYEE OPTION
PLANS AS WELL AS IN AGREEMENTS ENTERED INTO BETWEEN OFFICER AND DIRECTORS.
As of November 1, 2002, the officers and directors of CombiMatrix
Corporation owned stock options to purchase an aggregate of 1,399,000 shares of
CombiMatrix Corporation common stock, 768,953 of which were not vested. As of
November 1, 2002, the employees of CombiMatrix Corporation, excluding officers
and directors, owned stock options to purchase an aggregate of 2,318,660 shares
of CombiMatrix Corporation common stock, 722,099 of which were not vested.
Our board of directors believes that neither the merger nor the
recapitalization will cause an acceleration of vesting of options to purchase
CombiMatrix Corporation common stock pursuant to the terms of the CombiMatrix
Corporation stock option plans or change of control agreements between
CombiMatrix Corporation and its officers and directors. If it was determined,
however, that the merger transaction triggered the change in control provisions
included in the CombiMatrix Corporation stock option plans, CombiMatrix
Corporation stock options currently outstanding to purchase 1,491,052 shares of
CombiMatrix Corporation common stock would vest immediately upon consummation of
the merger transaction. This would cause dilution of 6.5% to holders of
AR-CombiMatrix stock following the recapitalization and merger.
-49-
THERE ARE NOT CURRENTLY ANY LOCK-UP AGREEMENTS WITH COMBIMATRIX CORPORATION
STOCKHOLDERS.
The stockholders of CombiMatrix Corporation, including Nanogen, Inc., have
not entered into any lock-up agreements restricting their ability to sell the
shares of AR-CombiMatrix stock that they would receive in the merger. If they do
not enter into such lock-up agreements, with the exception of "affiliates" (as
defined in Rule 144 under the Securities Act) of Acacia Research and CombiMatrix
Corporation, who will be subject to the resale restrictions contained in Rule
145 under the Securities Act, they will be able to freely sell their shares of
AR-CombiMatrix stock immediately after merger and such sales could adversely
affect the market price of the AR-CombiMatrix stock.
ENTERING INTO MARKET STANDOFF AGREEMENTS WILL RESTRICT THE ABILITY OF CERTAIN
STOCKHOLDERS OF COMBIMATRIX CORPORATION TO SELL THEIR MERGER SHARES.
It is a condition to our obligation to complete the merger that each
CombiMatrix Corporation stockholder who is an officer, director or employee of
CombiMatrix Corporation enter into a market standoff agreement with us. The
stockholders who enter into a market standoff agreement will be forced to hold
the shares of AR-CombiMatrix stock that they receive in the merger for six
months. This restriction will prevent such stockholders from selling their
AR-CombiMatrix shares at potentially advantageous times during this six-month
period and may expose such stockholders to a substantial risk of loss of their
investment.
THE PROPOSED INCREASE IN AUTHORIZED BUT UNISSUED SHARES COULD RESULT IN DILUTION
TO EXISTING STOCKHOLDERS.
The recapitalization would result in increasing our authorized common stock
from 60,000,000 to 100,000,000 shares. Those 100,000,000 shares could be issued
in the form of up to 50,000,000 shares of AR-CombiMatrix stock and up to
50,000,000 shares of AR-Acacia Technologies stock. In the recapitalization, our
authorized but unissued shares of common stock would increase from 40,359,192
shares of existing common stock to 57,408,641 shares of AR-CombiMatrix stock and
AR-Acacia Technologies stock. Although we have no current plans to issue more
stock after the recapitalization and merger, we could issue additional shares of
common stock pursuant to our increased authorized capitalization. If we do so,
the ownership interests held by our existing stockholders could decline and the
trading price of the two new classes of common stock could be adversely
affected.
RISKS RELATING TO THE COMBIMATRIX GROUP
THE RISK FACTORS BEGINNING ON THIS PAGE DISCUSS RISKS RELATING TO THE
COMBIMATRIX GROUP. AS A HOLDER OF AR-COMBIMATRIX STOCK, YOU WILL BE A HOLDER OF
THE COMMON STOCK OF ONE COMPANY, ACACIA RESEARCH, AND THE RISKS ASSOCIATED WITH
THE ACACIA TECHNOLOGIES GROUP COULD AFFECT THE AR-COMBIMATRIX STOCK. AS SUCH, WE
URGE YOU TO READ CAREFULLY THE SECTION "RISKS RELATING TO THE ACACIA
TECHNOLOGIES GROUP" BEGINNING ON PAGE 56.THE COMBIMATRIX GROUP HAS A HISTORY OF
LOSSES AND EXPECTS TO INCUR ADDITIONAL LOSSES IN THE FUTURE.
The CombiMatrix group has sustained substantial losses since its inception.
The CombiMatrix group may never become profitable or if it does, it may never be
able to sustain profitability. We expect the CombiMatrix group to incur
significant research and development, marketing, general and administrative
expenses. As a result, we expect the CombiMatrix group to incur significant
losses for the foreseeable future.
THE COMBIMATRIX GROUP MAY FAIL TO MEET MARKET EXPECTATIONS BECAUSE OF
FLUCTUATIONS IN ITS QUARTERLY OPERATING RESULTS, WHICH COULD CAUSE ITS STOCK
PRICE TO DECLINE.
The CombiMatrix group's revenues and operating results have fluctuated in
the past and may continue to fluctuate significantly from quarter to quarter in
the future. It is possible that in future periods the CombiMatrix group's
revenues could fall below the expectations of securities analysts or investors,
which could cause the market price of the AR-CombiMatrix stock to decline. The
following are among the factors that could cause the CombiMatrix group's
operating results to fluctuate significantly from period to period:
o its unpredictable revenue sources, as described below;
-50-
o the nature, pricing and timing of the CombiMatrix group's and its
competitors' products;
o changes in the CombiMatrix group's and its competitors' research and
development budgets;
o expenses related to, and the CombiMatrix group's ability to comply
with, governmental regulations of its products and processes; and
o expenses related to, and the results of, patent filings and other
proceedings relating to intellectual property rights.
The CombiMatrix group anticipates significant fixed expenses due in part to
its need to continue to invest in product development. It may be unable to
adjust its expenditures if revenues in a particular period fail to meet its
expectations, which would harm its operating results for that period. As a
result of these fluctuations, the CombiMatrix group believes that
period-to-period comparisons of the CombiMatrix group's financial results will
not necessarily be meaningful, and you should not rely on these comparisons as
an indication of its future performance.
THE COMBIMATRIX GROUP'S REVENUES WILL BE UNPREDICTABLE, AND THIS MAY HARM ITS
FINANCIAL CONDITION.
The amount and timing of revenues that the CombiMatrix group may realize
from its business will be unpredictable because:
o whether any products are commercialized and generate revenues depends,
in part, on the efforts and timing of its potential customers;
o its sales cycles may be lengthy; and
o it cannot be sure as to the timing of receipt of payment for its
products.
As a result, the CombiMatrix group's revenues may vary significantly from
quarter to quarter, which could make its business difficult to manage and cause
its quarterly results to be below market expectations. If this happens, the
price of the CombiMatrix group's common stock may decline significantly.
TECHNOLOGY COMPANY STOCK PRICES ARE ESPECIALLY VOLATILE, AND THIS VOLATILITY MAY
DEPRESS THE PRICE OF THE AR-COMBIMATRIX STOCK.
The current stock price of Acacia Research may bear no relationship to the
price at which the AR-CombiMatrix stock will trade upon completion of the
recapitalization. The stock market has experienced significant price and volume
fluctuations, and the market prices of technology companies, particularly
biotechnology companies, has been highly volatile. We believe that various
factors may cause the market price of the AR-CombiMatrix stock to fluctuate,
perhaps substantially, including, among others, announcements of:
o its or its competitors' technological innovations;
o developments or disputes concerning patents or proprietary rights;
o supply, manufacturing or distribution disruptions or other similar
problems;
o proposed laws regulating participants in the biotechnology industry;
o developments in relationships with collaborative partners or
customers;
o its failure to meet or exceed securities analysts' expectations of its
financial results; or
o a change in financial estimates or securities analysts'
recommendations.
-51-
In the past, companies that have experienced volatility in the market price
of their stock have been the objects of securities class action litigation. If
the AR-CombiMatrix stock was the object of securities class action litigation,
it could result in substantial costs and a diversion of management's attention
and resources, which could materially harm the business and financial results of
the CombiMatrix group.
THE COMBIMATRIX GROUP IS IN THE DEVELOPMENT STAGE DEPLOYING UNPROVEN
TECHNOLOGIES WHICH MAKES EVALUATION OF ITS BUSINESS AND PROSPECTS DIFFICULT AND
IT MAY BE FORCED TO CEASE OPERATIONS IF IT DOES NOT DEVELOP COMMERCIALLY
SUCCESSFUL PRODUCTS.
The CombiMatrix group has not proven its ability to commercialize products.
In order to successfully commercialize any products, it will have to make
significant investments, including investments in research and development and
testing, to demonstrate their technical benefits and cost-effectiveness.
Problems frequently encountered in connection with the commercialization of
products using new and unproven technologies might limit its ability to develop
and commercialize its products. For example, the CombiMatrix group's products
may be found to be ineffective, unreliable or otherwise unsatisfactory to
potential customers. The CombiMatrix group may experience unforeseen technical
complications in the processes it uses to develop, manufacture, customize or
receive orders for its products. These complications could materially delay or
limit the use of any products the CombiMatrix group attempts to commercialize,
substantially increase the anticipated cost of its products or prevent it from
implementing its processes at appropriate quality and scale levels, thereby
causing its business to suffer.
THE COMBIMATRIX GROUP MAY NEED TO RAISE ADDITIONAL CAPITAL IN THE FUTURE, AND IF
ADDITIONAL CAPITAL IS NOT AVAILABLE ON ACCEPTABLE TERMS, THE COMBIMATRIX GROUP
MAY HAVE TO CURTAIL OR CEASE OPERATIONS.
The CombiMatrix group's future capital requirements will be substantial and
will depend on many factors including how quickly it commercializes its
products, the progress and scope of its collaborative and independent research
and development projects, the filing, prosecution, enforcement and defense of
patent claims and the need to obtain regulatory approval for certain products in
the United States or elsewhere. Changes may occur that would cause the
CombiMatrix group's available capital resources to be consumed significantly
sooner than it expects.
The CombiMatrix group may be unable to raise sufficient additional capital
on favorable terms or at all. If it fails to do so, it may have to curtail or
cease operations or enter into agreements requiring it to relinquish rights to
certain technologies, products or markets because it will not have the capital
necessary to exploit them.
IF THE COMBIMATRIX GROUP DOES NOT ENTER INTO SUCCESSFUL PARTNERSHIPS AND
COLLABORATIONS WITH OTHER COMPANIES, IT MAY NOT BE ABLE TO FULLY DEVELOP ITS
TECHNOLOGIES OR PRODUCTS, AND ITS BUSINESS WOULD BE HARMED.
Since the CombiMatrix group does not possess all of the resources necessary
to develop and commercialize products that may result from its technologies, it
will need either to grow its sales, marketing and support group or make
appropriate arrangements with strategic partners to market, sell and support its
products. The CombiMatrix group believes that it will have to enter into
strategic partnerships to develop and commercialize future products. If it does
not enter into adequate agreements, or if its existing arrangements or future
agreements are not successful, its ability to develop and commercialize products
will be impacted negatively, and its revenues will be adversely affected.
The current business of the CombiMatrix group is substantially dependent on
its existing arrangement with Roche. The CombiMatrix group currently relies upon
payments by Roche for a majority of its future revenues and expends a majority
of its resources toward fulfilling its contractual obligations to Roche. Roche's
primary service to the CombiMatrix group is to distribute and proliferate its
technology platform. If the CombiMatrix group were to lose its relationship with
Roche, the CombiMatrix group would be required to establish a distribution
agreement with another partner or distribute its technology platform itself.
This could prove difficult, time-consuming and expensive, and the CombiMatrix
group may not be successful in achieving this objective.
-52-
THE COMBIMATRIX GROUP HAS LIMITED EXPERIENCE COMMERCIALLY MANUFACTURING,
MARKETING OR SELLING ANY OF ITS POTENTIAL PRODUCTS, AND UNLESS IT DEVELOPS THESE
CAPABILITIES, IT MAY NOT BE SUCCESSFUL.
Even if the CombiMatrix group is able to develop its products for
commercial release, it has limited experience in manufacturing its products in
the volumes that will be necessary for it to achieve commercial sales and in
marketing or selling its products to potential customers. We cannot assure you
that the CombiMatrix group will be able to commercially produce its products on
a timely basis, in sufficient quantities or on commercially reasonable terms.
THE COMBIMATRIX GROUP FACES INTENSE COMPETITION AND WE CANNOT ASSURE YOU THAT IT
WILL BE SUCCESSFUL.
The CombiMatrix group expects to compete with companies that design,
manufacture and market instruments for analysis of genetic variation and
function and other applications using established sequential and parallel
testing technologies. The CombiMatrix group is also aware of other biotechnology
companies that have or are developing testing technologies for the SNP
genotyping, gene expression profiling and proteomic markets. The CombiMatrix
group anticipates that it will face increased competition in the future as new
companies enter the market with new technologies and its competitors improve
their current products.
The markets for the CombiMatrix group's products are characterized by
rapidly changing technology, evolving industry standards, changes in customer
needs, emerging competition and new product introductions. One or more of the
CombiMatrix group's competitors may offer technology superior to those of the
CombiMatrix group and render its technology obsolete or uneconomical. Many of
its competitors have greater financial and personnel resources and more
experience in marketing, sales and research and development than it has. Some of
its competitors currently offer arrays with greater density than it does and
have rights to intellectual property, such as genomic information or proprietary
technology, which provides them with a competitive advantage. If the CombiMatrix
group is not able to compete successfully, its business and financial condition
would be materially harmed.
IF THE COMBIMATRIX GROUP'S NEW AND UNPROVEN TECHNOLOGY IS NOT USED BY
RESEARCHERS IN THE PHARMACEUTICAL, BIOTECHNOLOGY AND ACADEMIC COMMUNITIES, ITS
BUSINESS WILL SUFFER.
The CombiMatrix group's products may not gain market acceptance. In that
event, it is unlikely that its business will succeed. Biotechnology and
pharmaceutical companies and academic research centers have historically
analyzed genetic variation and function using a variety of technologies, and
many of them have made significant capital investments in existing technologies.
Compared to existing technologies, the CombiMatrix group's technologies are new
and unproven. In order to be successful, its products must meet the commercial
requirements of the biotechnology, pharmaceutical and academic communities as
tools for the large-scale analysis of genetic variation and function. Market
acceptance will depend on many factors, including:
o the development of a market for its tools for the analysis of genetic
variation and function, the study of proteins and other purposes;
o the benefits and cost-effectiveness of its products relative to others
available in the market;
o its ability to manufacture products in sufficient quantities with
acceptable quality and reliability and at an acceptable cost;
o its ability to develop and market additional products and enhancements
to existing products that are responsive to the changing needs of its
customers;
o the willingness and ability of customers to adopt new technologies
requiring capital investments or the reluctance of customers to change
technologies in which they have made a significant investment; and
o the willingness of customers to transmit test data and permit the
CombiMatrix group to transmit test results over the Internet, which
will be a necessary component of its product and services packages
unless customers purchase or license its equipment for use in their
own facilities.
-53-
IF THE MARKET FOR ANALYSIS OF GENOMIC INFORMATION DOES NOT DEVELOP OR IF GENOMIC
INFORMATION IS NOT AVAILABLE TO THE COMBIMATRIX GROUP'S POTENTIAL CUSTOMERS, ITS
BUSINESS WILL NOT SUCCEED.
The CombiMatrix group is designing its technology primarily for
applications in the biotechnology, pharmaceutical and academic communities. The
usefulness of the CombiMatrix group's technology depends in part upon the
availability of genomic data. The CombiMatrix group is initially focusing on
markets for analysis of genetic variation and function, namely SNP genotyping
and gene expression profiling. These markets are new and emerging, and they may
not develop as the CombiMatrix group anticipates, or at all. Also, researchers
may not seek or be able to convert raw genomic data into medically valuable
information through the analysis of genetic variation and function. If genomic
data is not available for use by the CombiMatrix group's customers or if its
target markets do not emerge in a timely manner, or at all, demand for its
products will not develop as it expects, and it may never become profitable.
THE COMBIMATRIX GROUP'S FUTURE SUCCESS DEPENDS ON THE CONTINUED SERVICE OF ITS
ENGINEERING, TECHNICAL AND KEY MANAGEMENT PERSONNEL AND ITS ABILITY TO IDENTIFY,
HIRE AND RETAIN ADDITIONAL ENGINEERING, TECHNICAL AND KEY MANAGEMENT PERSONNEL.
There is intense competition for qualified personnel in the CombiMatrix
group's industry, particularly for engineers and senior level management. Loss
of the services of, or failure to recruit, engineers or other technical and key
management personnel could be significantly detrimental to the group and could
adversely affect its business and operating results. The CombiMatrix group may
not be able to continue to attract and retain engineers or other qualified
personnel necessary for the development of its products and business or to
replace engineers or other qualified personnel who may leave the group in the
future. The CombiMatrix group's anticipated growth is expected to place
increased demands on its resources and likely will require the addition of new
management personnel.
THE EXPANSION OF THE COMBIMATRIX GROUP'S PRODUCT LINES MAY SUBJECT IT TO
REGULATION BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION AND FOREIGN
REGULATORY AUTHORITIES, WHICH COULD PREVENT OR DELAY ITS INTRODUCTION OF NEW
PRODUCTS.
If the CombiMatrix group manufactures, markets or sells any products for
any regulated clinical or diagnostic applications, those products will be
subject to extensive governmental regulation as medical devices in the United
States by the FDA and in other countries by corresponding foreign regulatory
authorities. The process of obtaining and maintaining required regulatory
clearances and approvals is lengthy, expensive and uncertain. Products that
CombiMatrix manufactures, markets or sells for research purposes only are not
subject to governmental regulations as medical devices or as analyte specific
reagents to aid in disease diagnosis. We believe that the CombiMatrix group's
success will depend upon commercial sales of improved versions of products,
certain of which cannot be marketed in the United States and other regulated
markets unless and until the CombiMatrix group obtains clearance or approval
from the FDA and its foreign counterparts, as the case may be. Delays or
failures in receiving these approvals may limit our ability to benefit from new
CombiMatrix group products.
AS THE COMBIMATRIX GROUP'S OPERATIONS EXPAND, ITS COSTS TO COMPLY WITH
ENVIRONMENTAL LAWS AND REGULATIONS WILL INCREASE, AND FAILURE TO COMPLY WITH
THESE LAWS AND REGULATIONS COULD HARM ITS FINANCIAL RESULTS.
The CombiMatrix group's operations involve the use, transportation, storage
and disposal of hazardous substances, and as a result it is subject to
environmental and health and safety laws and regulations. As the CombiMatrix
group expands its operations, its use of hazardous substances will increase and
lead to additional and more stringent requirements. The cost to comply with
these and any future environmental and health and safety regulations could be
substantial. In addition, the CombiMatrix group's failure to comply with laws
and regulations, and any releases of hazardous substances into the environment
or at its disposal sites, could expose the CombiMatrix group to substantial
liability in the form of fines, penalties, remediation costs and other damages,
or could lead to a curtailment or shut down of its operations. These types of
events, if they occur, would adversely impact the group's financial results.
-54-
THE COMBIMATRIX GROUP'S BUSINESS DEPENDS ON ISSUED AND PENDING PATENTS, AND THE
LOSS OF ANY PATENTS OR THE GROUP'S FAILURE TO SECURE THE ISSUANCE OF PATENTS
COVERING ELEMENTS OF ITS BUSINESS PROCESSES WOULD MATERIALLY HARM ITS BUSINESS
AND FINANCIAL CONDITION.
The CombiMatrix group's success depends on its ability to protect and
exploit its intellectual property. The CombiMatrix group currently has two
patents issued in the United States, one patent issued in Europe and more than
42 patent applications pending in the United Sates, Europe and elsewhere. The
patent application process before the Unites States Patent and Trademark Office
and other similar agencies in other countries is initially confidential in
nature. Patents that are filed outside the United States, however, are published
approximately eighteen months after filing. The CombiMatrix group cannot
determine in a timely manner whether patent applications covering technology
that competes with its technology have been filed in the United States or other
foreign countries or which, if any, will ultimately issue or be granted as
enforceable patents. Some of the CombiMatrix group's patent applications may
claim compositions, methods or uses that may also be claimed in patent
applications filed by others. In some or all of these applications, a
determination of priority of inventorship may need to be decided in a proceeding
before the United States Patent and Trademark Office or a foreign regulatory
body or a court. If the CombiMatrix group is unsuccessful in these proceedings,
it could be blocked from further developing, commercializing or selling
products. Regardless of the ultimate outcome, this process is time-consuming and
expensive.
ANY INABILITY TO ADEQUATELY PROTECT THE COMBIMATRIX GROUP'S PROPRIETARY
TECHNOLOGIES COULD MATERIALLY HARM THE COMBIMATRIX GROUP'S COMPETITIVE POSITION
AND FINANCIAL RESULTS.
If the CombiMatrix group does not protect its intellectual property
adequately, competitors may be able to use its technologies and erode any
competitive advantage that it may have. The laws of some foreign countries do
not protect proprietary rights to the same extent as the laws of the United
States, and many companies have encountered significant problems in protecting
their proprietary rights abroad. These problems can be caused by the absence of
rules and methods for defending intellectual property rights.
The patent positions of companies developing tools for the biotechnology,
pharmaceutical and academic communities, including the CombiMatrix group's
patent position, generally are uncertain and involve complex legal and factual
questions. The CombiMatrix group will be able to protect its proprietary rights
from unauthorized use by third parties only to the extent that its proprietary
technologies are covered by valid and enforceable patents or are effectively
maintained as trade secrets. The CombiMatrix group's existing patents and any
future issued or granted patents it obtains may not be sufficiently broad in
scope to prevent others from practicing its technologies or from developing
competing products. There also is a risk that others may independently develop
similar or alternative technologies or designs around the CombiMatrix group's
patented technologies. In addition, others may oppose or invalidate its patents,
or its patents may fail to provide it with any competitive advantage. Enforcing
the CombiMatrix group's intellectual property rights may be difficult, costly
and time-consuming and ultimately may not be successful.
The CombiMatrix group also relies upon trade secret protection for its
confidential and proprietary information. While it has taken security measures
to protect its proprietary information, these measures may not provide adequate
protection for its trade secrets or other proprietary information. The
CombiMatrix group seeks to protect its proprietary information by entering into
confidentiality and invention disclosure and transfer agreements with employees,
collaborators and consultants. Nevertheless, employees, collaborators or
consultants may still disclose its proprietary information, and the CombiMatrix
group may not be able to meaningfully protect its trade secrets. In addition,
others may independently develop substantially equivalent proprietary
information or techniques or otherwise gain access to its trade secrets.
ANY LITIGATION TO PROTECT THE COMBIMATRIX GROUP'S INTELLECTUAL PROPERTY OR ANY
THIRD-PARTY CLAIMS OF INFRINGEMENT, COULD DIVERT SUBSTANTIAL TIME AND MONEY FROM
THE COMBIMATRIX GROUP'S BUSINESS AND COULD SHUT DOWN SOME OF ITS OPERATIONS.
The CombiMatrix group's commercial success depends in part on its
non-infringement of the patents or proprietary rights of third parties. Many
companies developing tools for the biotechnology and pharmaceutical industries
use litigation aggressively as a strategy to protect and expand the scope of
their intellectual property
-55-
rights. Accordingly, third parties may assert that the CombiMatrix group is
employing their proprietary technology without authorization. In addition, third
parties may claim that use of the CombiMatrix group's technologies infringes
their current or future patents. The CombiMatrix group could incur substantial
costs and the attention of its management and technical personnel could be
diverted while defending ourselves against any of these claims. The CombiMatrix
group may incur the same liabilities in enforcing its patents against others.
The CombiMatrix group has not made any provision in its financial plans for
potential intellectual property related litigation, and it may not be able to
pursue litigation as aggressively as competitors with substantially greater
financial resources.
If parties making infringement claims against the CombiMatrix group are
successful, they may be able to obtain injunctive or other equitable relief,
which effectively could block the CombiMatrix group's ability to further
develop, commercialize and sell products, and could result in the award of
substantial damages against it. If the CombiMatrix group is unsuccessful in
protecting and expanding the scope of its intellectual property rights, its
competitors may be able to develop, commercialize and sell products that compete
with it using similar technologies or obtain patents that could effectively
block its ability to further develop, commercialize and sell its products. In
the event of a successful claim of infringement against it, the CombiMatrix
group may be required to pay substantial damages and either discontinue those
aspects of its business involving the technology upon which it infringed or
obtain one or more licenses from third parties. While the CombiMatrix group may
license additional technology in the future, it may not be able to obtain these
licenses at a reasonable cost, or at all. In that event, it could encounter
delays in product introductions while it attempts to develop alternative methods
or products, which may not be successful. Defense of any lawsuit or failure to
obtain any of these licenses could prevent it from commercializing available
products.
NANOGEN, INC. WILL BE THE LARGEST HOLDER OF THE AR-COMBIMATRIX STOCK.
As part of a settlement of outstanding litigation among CombiMatrix
Corporation, Dr. Donald Montgomery and Nanogen, Inc., CombiMatrix Corporation
issued 4,016,346 shares of its common stock, or 17.5% of its total outstanding
shares post-issuance. Following the merger and recapitalization, Nanogen, Inc.
will hold approximately 17.5% of the outstanding AR-CombiMatrix stock, assuming
the conversion of each share of Acacia Research common stock into 0.5582 share
of AR-CombiMatrix stock and one share of AR-Acacia Technologies stock in the
recapitalization. As a result, Nanogen, Inc. will be the largest stockholder of
both the AR-CombiMatrix stock and Acacia Research, and may be able to exert
greater influence than other stockholders over matters submitted to our
stockholders for approval, including the election and removal of directors and
the approval of any merger, consolidation or sale of all or substantially all of
our assets. Nanogen, Inc. may make decisions that are adverse to the interests
of other stockholders.
RISKS RELATING TO THE ACACIA TECHNOLOGIES GROUP
The risk factors beginning on this page discuss risks relating to the
Acacia Technologies group. As a holder of AR-Acacia Technologies stock, you will
be a holder of the common stock of one company, Acacia Research Corporation, and
the risks associated with the CombiMatrix group could affect the AR-Acacia
Technologies stock. As such, we urge you to read carefully the section "Risks
Relating to the CombiMatrix Group" beginning on page 50.
THE V-CHIP TECHNOLOGY PATENT HELD BY THE ACACIA TECHNOLOGIES GROUP WILL EXPIRE
IN JULY 2003, AND IF THE GROUP DOES NOT DEVELOP OTHER RECURRING SOURCES OF
REVENUE, ITS FINANCIAL CONDITION WILL BE ADVERSELY IMPACTED.
The Acacia Technologies group, and Acacia Research as a whole, has
generated substantially all of its revenues from licensing the patented V-chip
technology to television manufacturers. The Acacia Technologies group's patent
on the V-chip technology will expire in July 2003. The Acacia Technologies group
will not be able to collect royalties for televisions containing V-chip
technology sold after the expiration of that patent, but it may still collect
revenues from the sale of such televisions in the U.S. before that date. The
Acacia Technologies group is beginning to market its digital media transmission
technology and is developing other technologies and products. The eventual
licensing and sale of these technologies is intended to replace the revenue
currently being generated by licensing its V-chip technology. If the Acacia
Technologies group does not succeed in developing such technologies or is unable
to commercially license its existing and future technologies, its financial
condition will be adversely impacted.
-56-
THE ACACIA TECHNOLOGIES GROUP MAY FAIL TO MEET MARKET EXPECTATIONS BECAUSE OF
FLUCTUATIONS IN ITS QUARTERLY OPERATING RESULTS, WHICH COULD CAUSE THE PRICE OF
AR-ACACIA TECHNOLOGIES STOCK TO DECLINE.
The Acacia Technologies group revenues and operating results have
fluctuated in the past and may continue to fluctuate significantly from quarter
to quarter in the future. It is possible that in future periods the Acacia
Technologies group's revenues could fall below the expectations of securities
analysts or investors, which could cause the market price of the AR-Acacia
Technologies stock to decline. The following are among the factors that could
cause the Acacia Technologies group's operating results to fluctuate
significantly from period to period:
o its unpredictable revenue sources, as described below;
o costs related to acquisitions, alliances, licenses and other efforts
to expand its operations;
o the timing of payments under the terms of any customer or license
agreements into which the Acacia Technologies group may enter; and
o expenses related to, and the results of, patent filings and other
proceedings relating to intellectual property rights.
THE ACACIA TECHNOLOGIES GROUP'S REVENUES WILL BE UNPREDICTABLE, AND THIS MAY
HARM ITS FINANCIAL CONDITION.
The amount and timing of revenues that the Acacia Technologies group may
realize from its business will be unpredictable because:
o whether the Acacia Technologies group generates revenues depends, in
part, on the success of its licensing efforts;
o its cycle of obtaining licensees may be lengthy; and
o it cannot be sure as to the timing of receipt of payment.
As a result, the Acacia Technologies group's revenues may vary
significantly from quarter to quarter, which could make its business difficult
to manage and cause its quarterly results to be below market expectations. If
this happens, the price of the AR-Acacia Technologies stock may decline
significantly.
TECHNOLOGY COMPANY STOCK PRICES ARE ESPECIALLY VOLATILE, AND THIS VOLATILITY MAY
DEPRESS THE PRICE OF AR-ACACIA TECHNOLOGIES STOCK.
The current stock price of Acacia Research common stock may bear no
relationship to the price at which the AR-Acacia Technologies stock will trade
upon completion of the recapitalization. The stock market has experienced
significant price and volume fluctuations, and the market prices of technology
companies have been highly volatile. We believe that various factors may cause
the market price of the AR-Acacia Technologies stock to fluctuate, perhaps
substantially, including, among others, announcements of:
o its or its competitors' technological innovations;
o developments or disputes concerning patents or proprietary rights;
o developments in relationships with licensees;
o its failure to meet or exceed securities analysts' expectations of its
financial results; or
o a change in financial estimates or securities analysts'
recommendations.
-57-
In the past, companies that have experienced volatility in the market price
of their stock have been the objects of securities class action litigation. If
the AR-Acacia Technologies stock was the object of securities class action
litigation, it could result in substantial costs and a diversion of management's
attention and resources, which could materially harm the business and financial
results of the Acacia Technologies group.
THE ACACIA TECHNOLOGIES GROUP FACES INTENSE COMPETITION, AND WE CANNOT ASSURE
YOU THAT IT WILL BE SUCCESSFUL.
The Acacia Technologies group believes that Soundview Technologies' V-chip
technology is protected by enforceable patent rights. Other companies, however,
may develop competing technologies that offer better or less expensive
alternatives to those offered by Soundview Technologies. Many potential
competitors, including television manufacturers, have significantly greater
resources.
Although the Acacia Technologies group believes that Acacia Media
Technologies has marketing and licensing rights to enforceable patents and other
intellectual property relating to video and audio on demand, the Acacia
Technologies group cannot assure you that other companies will not develop
competing technologies that offer better or less expensive alternatives to those
offered by Acacia Media Technologies. In the event a competing technology
emerges, Acacia Media Technologies would expect substantial additional
competition.
THE MARKETS SERVED BY THE ACACIA TECHNOLOGIES GROUP ARE SUBJECT TO RAPID
TECHNOLOGICAL CHANGE, AND IF THE ACACIA TECHNOLOGIES GROUP IS UNABLE TO DEVELOP
AND INTRODUCE NEW PRODUCTS, ITS REVENUES COULD STOP GROWING OR COULD DECLINE.
The markets served by the Acacia Technologies group frequently undergo
transitions in which products rapidly incorporate new features and performance
standards on an industry-wide basis. Products for communications applications,
as well as for high-speed computing applications, are based on continually
evolving industry standards. A significant portion of the Acacia Technologies
group's revenues in recent periods has been, and is expected to continue to be,
derived from sales of products based on existing transmission standards.
However, the Acacia Technologies group's ability to compete in the future will
depend on its ability to identify and ensure compliance with evolving industry
standards.
THE ACACIA TECHNOLOGIES GROUP'S SUCCESS IS BASED ON ITS ABILITY TO PROTECT ITS
PROPRIETARY TECHNOLOGY AND ITS ABILITY TO DEFEND ITSELF AGAINST INFRINGEMENT
CLAIMS.
The success of the Acacia Technologies group relies, to varying degrees, on
its proprietary rights and their protection or exclusivity. Although reasonable
efforts will be taken to protect the Acacia Technologies group's proprietary
rights, the complexity of international trade secret, copyright, trademark and
patent law, and common law, coupled with limited resources and the demands of
quick delivery of products and services to market, create risk that these
efforts will prove inadequate. For example, in our pending litigation against
certain television manufacturers alleging their infringement of Soundview
Technologies' V-chip patent, a motion for summary judgment filed by the
defendants was granted in September 2002. The court ruled that the defendants
have not infringed on Soundview Technologies' patent. If we are unsuccessful in
our intended appeal of this ruling, legal principles would preclude us from
claiming infringement of our patents by other parties. Accordingly, if we are
unsuccessful in this or other litigation to protect our intellectual property
rights, the future revenues of the Acacia Technologies group could be adversely
affected.
From time to time, the Acacia Technologies group may be subject to
third-party claims in the ordinary course of business, including claims of
alleged infringement of proprietary rights. Any such claims may harm the Acacia
Technologies group by subjecting it to significant liability for damage and
invalidating its proprietary rights. These types of claims, with or without
merit, could subject the Acacia Technologies group to costly litigation and
diversion of its technical and management personnel. The Acacia Technologies
group depends largely on the protection of enforceable patent rights. The Acacia
Technologies group has applications on file with the U.S. Patent and Trademark
Office seeking patents on its core technologies and has patents or rights to
patents that have been issued. We cannot assure you that the pending patent
applications of the Acacia Technologies group will be issued, that third parties
will not violate, or attempt to invalidate these intellectual property rights,
or that certain aspects of those intellectual property will not be
reverse-engineered by third parties without violating the patent rights of the
Acacia Technologies group.
-58-
For Acacia Media Technologies and Soundview Technologies, proprietary
rights constitute their only significant assets. The Acacia Technologies group
also owns licenses from third parties and it is possible that it could become
subject to infringement actions based upon such licenses. The Acacia
Technologies group generally obtains representations as to the origin and
ownership of such licensed content. However, this may not adequately protect the
Acacia Technologies group. The Acacia Technologies group enters into
confidentiality agreements with third parties and generally limits access to
information relating to its proprietary rights. Despite these precautions, third
parties may be able to gain access to and use the Acacia Technologies group's
proprietary rights to develop competing technologies and products with similar
or better features and prices. Any substantial unauthorized use of the Acacia
Technologies group's proprietary rights could materially and adversely affect
its business and operational results.
-59-
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This proxy statement contains forward-looking statements within the meaning
of the federal securities laws. Forward-looking statements are statements that
predict or describe future events or trends and that do not relate solely to
historical matters. You can generally identify forward-looking statements as
statements containing the words "may," "will," "expect," "believe," "estimate,"
"anticipate," "intend," "continue," and other similar expressions or the
negative of these terms. You should be aware that the matters described in our
forward-looking statements are subject to known and unknown risks, uncertainties
and other unpredictable factors, many of which are beyond our control.
Statements regarding the following subjects are forward-looking by their nature:
o our business strategies;
o market trends and risks;
o assumptions regarding economic conditions;
o circumstances affecting anticipated revenues and costs; and
o legislative, regulatory and competitive developments.
These forward-looking statements are subject to various risks and
uncertainties, including those related to:
o the recent slowdown affecting technology companies;
o our ability to successfully develop products;
o rapid technological change in our markets;
o anticipated sources of future revenues;
o changes in demand for our future products;
o our ability to raise capital in the future; and
o the adequacy of our capital resources to fund our operations.
Other risks, uncertainties and factors, including those discussed under
"Risk Factors" in this proxy statement or described in reports that we file from
time to time with the Securities and Exchange Commission, such as our Form 10-K
and 10-Q, could cause our actual results and those of our industries' to differ
materially from those projected in any forward-looking statements we make. We
are not obligated to publicly update or revise any forward-looking statements,
whether as a result of new information, future events or otherwise.
-60-
STOCKHOLDERS MEETING
DATE, TIME AND PLACE OF MEETING
We are providing this proxy statement to you in connection with the
solicitation of proxies by our board of directors for use at the special
meeting. The special meeting will be held on December 11, 2002, at 1:30 p.m.,
Pacific time, at 610 Newport Center Drive, Suite 130, Newport Beach, California
92660. This proxy statement is first being mailed to our stockholders on or
about November 12, 2002.
RECORD DATE
We have established November 1, 2002 as the record date for the special
meeting. Only holders of record of shares of our existing common stock at the
close of business on this date will be eligible to vote at the special meeting.
PROPOSALS TO BE CONSIDERED AT THE MEETING
You will be asked to consider and vote on the four proposals described in
this proxy statement.
If any of the proposals is not approved, we will not implement any of the
other proposals.
We do not expect that any other matter will be brought before the special
meeting. If, however, other matters are properly presented, the individuals
named on your proxy card will vote in accordance with their judgment with
respect to those matters.
VOTE REQUIRED TO APPROVE THE PROPOSALS
The recapitalization proposal and the merger proposal will require the
favorable vote of a majority of the outstanding shares of our existing common
stock. As a result, abstentions and broker non-votes on the recapitalization
proposal and the merger proposal will have the same effect as "no" votes. Broker
non-votes occur when a broker returns a proxy but does not have authority to
vote on a particular proposal.
Each of the related stock incentive plan proposals will be decided by the
favorable vote of a majority of the shares present or represented and entitled
to vote at the special meeting. Abstentions will have the same effect as "no"
votes on these two proposals. Broker non-votes will not affect the outcome of
these two proposals.
Each outstanding share of existing common stock is entitled to one vote on
each proposal. As of November 1, 2002, the most recent practicable date prior to
the date of this proxy statement, we had issued and outstanding 19,640,808
shares of existing common stock. The shares of existing common stock held in our
treasury will not be entitled to vote or counted in determining the number of
outstanding shares. Approval of the merger and the recapitalization will require
a majority vote our outstanding common stock. As of November 1, 2002, 2.2% of
our outstanding common stock was owned by our executive officers, directors and
their affiliates.
The merger is also conditional on obtaining a majority vote of the
outstanding common stock of CombiMatrix Corporation. As of November 1, 2002,
10.0% of CombiMatrix Corporation's outstanding common stock was owned by its
executive officers, directors and their affiliates, and 17.5% is owned by
Nanogen, Inc., an unrelated third party.
QUORUM
In order to carry on the business of the special meeting, we must have a
quorum. This means a majority of the outstanding shares of our existing common
stock must be represented in person or by proxy at the special meeting.
Abstentions and broker non-votes will count for quorum purposes.
-61-
PROCEDURE FOR VOTING BY PROXY
If you properly fill in your proxy card and send it to us in time to vote,
your shares will be voted as you have directed. If you sign the proxy card but
do not make specific choices, the individuals named on your proxy card will vote
your shares in favor of approval and adoption of each proposal. If you mark
"abstain" on your proxy card, your shares will be counted as present for
purposes of determining the presence of a quorum. If necessary, unless you have
indicated on your proxy card that you wish to vote against one or more of the
proposals, the individuals named on your proxy card may vote in favor of a
proposal to adjourn the special meeting to a later date in order to solicit and
obtain sufficient votes for any of the proposals.
A proxy card is enclosed for your use. To vote without attending the
special meeting in person, you should complete, sign, date and return the proxy
card in the accompanying envelope, which is postage-paid if mailed in the United
States.
If you have completed and returned a proxy card, you can still vote in
person at the special meeting. You may revoke your proxy before it is voted by
submitting a new proxy card with a later date, by voting in person at the
special meeting or by filing with the Secretary of Acacia Research a written
revocation of proxy. Attendance at the special meeting will not of itself
constitute revocation of a proxy.
PRO FORMA TABLE REGARDING SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth pro forma information regarding the
beneficial ownership of the AR-CombiMatrix stock and the AR-Acacia Technologies
stock, based on share ownership information known to us as of November 1, 2002
and assuming that the recapitalization and merger were effective as of such date
and assuming that each share of Acacia Research common stock would convert into
0.5582 of a share of AR-CombiMatrix stock and one share of AR-Acacia
Technologies stock. The table sets forth information regarding (i) all persons
known to us to beneficially own five percent (5%) or more of Acacia Research
common stock, (ii) each director, (iii) each executive officer of Acacia
Research, (iv) all current directors and executive officers as a group, and (v)
each person who will own five percent (5%) or more of the AR-CombiMatrix stock
or the AR-Acacia Technologies stock following the recapitailization and merger.
AR-COMBIMATRIX STOCK AR-ACACIA TECHNOLOGIES STOCK
------------------------------ ------------------------------
AMOUNT AND NATURE AMOUNT AND NATURE
OF BENEFICIAL OF BENEFICIAL
BENEFICIAL OWNER(1) OWNERSHIP PERCENT(2) OWNERSHIP PERCENT(2)
----------------------------------------- ----------------- ---------- ----------------- ----------
Paul R. Ryan 512,019(3) 2.2% 852,346(4) 4.2%
Thomas B. Akin 102,185(5) * 136,039(6) *
Fred A. de Boom 31,370(7) * 56,200(8) *
Edward W. Frykman 36,165(9) * 64,790(10) *
Robert L. Harris, II 276,461(11) 1.2% 448,256(12) 2.2%
G. Louis Graziadio, III 12,280(13) * 22,000(14) *
Amit Kumar, Ph.D. 242,046(15) * 245,766(16) 1.2%
Clayton Haynes 18,420(17) * 33,000(18) *
All Directors and Executive Officers as a
Group (eight persons) 1,179,121(19) 4.9% 1,858,397(20) 8.8%
Nanogen, Inc. 4,016,346 17.5% 0 *
Donald D. Montgomery, Ph.D. 2,281,484(21) 9.9% 28,786 *
----------
* Less than one percent
(1) The address for Dr. Kumar and Dr. Montgomery is the principal offices of
CombiMatrix Corporation, located at 6500 Harbour Heights Parkway, Mukilteo,
Washington 98275; the address for Nanogen, Inc. is 10398 Pacific Center
Court, San Diego, California, 92121; and the address for each other person
is the principal offices of Acacia Research Corporation, located at 500
Newport Center Drive, Newport Beach, California 92660..
-62-
(2) The percentage of shares beneficially owned is based on 22,968,551 shares
of AR-CombiMatrix stock and 19,640,808 shares of AR-Acacia Technologies
stock outstanding as of November 1, 2002. Beneficial ownership is
determined under rules and regulations of the Securities and Exchange
Commission. Shares of AR-Acacia Technologies stock and AR-CombiMatrix stock
subject to options that are currently exercisable or exercisable within 60
days after November 1, 2002 are deemed to be outstanding and beneficially
owned by the person holding such options for the purpose of computing the
number of shares beneficially owned and the percentage ownership of such
person, but are not deemed to be outstanding for the purpose of computing
the percentage ownership of any other person. Except as indicated in the
footnotes to this table, and subject to applicable community property laws,
we believe that such persons have sole voting and investment power with
respect to all shares of the AR-CombiMatrix stock and AR-Acacia
Technologies stock shown as beneficially owned by them.
(3) Includes 327,138 shares of AR-CombiMatrix stock issuable upon exercise of
options that are currently exercisable or will become exercisable within 60
days of November 1, 2002.
(4) Includes 521,129 shares of AR-Acacia Technologies stock issuable upon
exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(5) Includes 68,003 shares of AR-CombiMatrix stock issuable upon exercise of
options that are currently exercisable or will become exercisable within 60
days of November 1, 2002, and 34,183 shares held by Talkot Crossover Fund,
L.E, of which Mr. Akin serves as managing general partner.
(6) Includes 74,800 shares of AR-Acacia Technologies stock issuable upon
exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002, and 61,239 shares held by
Talkot Crossover Fund, L.E, of which Mr. Akin serves as managing general
partner.
(7) Includes 18,420 shares of AR-CombiMatrix stock issuable upon exercise of
options that are currently exercisable or will become exercisable within 60
days of November 1, 2002.
(8) Includes 33,000 shares of AR-Acacia Technologies stock issuable upon
exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(9) Includes 28,244 shares of AR-CombiMatrix stock issuable upon exercise of
options that are currently exercisable or will become exercisable within 60
days of November 1, 2002.
(10) Includes 50,600 shares of AR-Acacia Technologies stock issuable upon
exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(11) Includes 276,461 shares of AR-CombiMatrix stock issuable upon exercise of
options that are currently exercisable or will become exercisable within 60
days of November 1, 2002.
(12) Includes 448,256 shares of AR-Acacia Technologies stock issuable upon
exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(13) Includes 12,280 shares of AR-CombiMatrix stock issuable upon exercise of
options that are currently exercisable or will become exercisable within 60
days of November 1, 2002.
(14) Includes 22,000 shares of AR-Acacia Technologies stock issuable upon
exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(15) Includes 241,432 shares of AR-CombiMatrix stock issuable upon exercise of
options that are currently exercisable or will become exercisable within 60
days of November 1, 2002.
(16) Includes 244,666 shares of AR-Acacia Technologies stock issuable upon
exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(17) Includes 18,420 shares of AR-CombiMatrix stock issuable upon exercise of
options that are currently exercisable or will become exercisable within 60
days of November 1, 2002.
(18) Includes 33,000 shares of AR-Acacia Technologies stock issuable upon
exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(19) Includes 990,399 shares of AR-CombiMatrix stock issuable upon exercise of
options that are currently exercisable or will become exercisable within 60
days of November 1, 2002.
-63-
(20) Includes 1,427,451 shares of AR-Acacia Technologies stock issuable upon
exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(21) Includes 19,254 shares of AR-CombiMatrix stock issuable upon exercise of
options that are currently exercisable or will become exercisable within 60
days of November 1, 2002.
-64-
THE RECAPITALIZATION PROPOSAL
DESCRIPTION OF THE RECAPITALIZATION
You are being asked to consider and approve the recapitalization under
which each outstanding share of our existing common stock will be converted into
a fraction of a share of AR-CombiMatrix stock and one share of AR-Acacia
Technologies stock. The fraction of a share of AR-CombiMatrix stock into which
each outstanding share of Acacia Research common stock will be converted will be
equal to the quotient obtained by dividing (a) the number of shares of
CombiMatrix Corporation common stock owned by Acacia Research immediately prior
to the effective time of the merger by (b) the total number of shares of Acacia
Research common stock issued and outstanding immediately prior to the effective
time. As of October 3, 2002, this fraction was 0.5582, but this fraction is
subject to change prior to the effective time of the merger based on any change
in the number of shares owned by Acacia Research and any change in the number of
outstanding shares of CombiMatrix Corporation.
If the recapitalization is implemented, your rights as stockholders will be
governed by the proposed restated certificate of incorporation which is attached
as ANNEX B. The restated certificate of incorporation contains the terms of the
AR-CombiMatrix stock and the AR-Acacia Technologies stock. Accordingly, you
should carefully read the restated certificate of incorporation.
If the recapitalization proposal is approved, we plan to implement the
recapitalization by filing the restated certificate of incorporation with the
Delaware Secretary of State. We presently anticipate that this filing will be
made as soon as possible after the special meeting. No state or federal
regulatory approvals are required for the consummation of the recapitalization.
Our board of directors may determine not to implement the recapitalization
proposal for any reason at any time prior to the effective time of the
recapitalization, either before or after stockholder approval. In addition, the
restated certificate of incorporation may be amended prior to the effective time
of the recapitalization; however, we have no current plans to make such an
amendment.
BACKGROUND OF AND REASONS FOR THE RECAPITALIZATION PROPOSAL
Our board of directors approved the recapitalization proposal and the
merger proposal following its review of various alternatives for maximizing
stockholder value, advancing our financial and strategic objectives and creating
flexibility for our future growth. The recapitalization proposal is designed to
separate the performance of the two groups and to charge the managers of each
group with the responsibility of maximizing the returns from their businesses.
The merger proposal is designed to consolidate our ownership and capture the
value of our principal subsidiary, and permit us to effectuate the
recapitalization by creating the CombiMatrix group in a manner that reflects
fully the value of CombiMatrix Corporation.
At a meeting held on February 25, 2002, our board of directors considered a
variety of proposals to increase the overall value of the existing common stock.
Our board of directors had extensive discussions with our senior financial and
legal officers, as well as representatives of Allen Matkins Leck Gamble &
Mallory LLP, our legal adviser ("Allen Matkins"). Among the alternatives which
our directors considered were:
o the preservation of the current equity and operating structure;
o the creation of two classes of common stock to reflect separately the
results of our subsidiary CombiMatrix Corporation and our media
technology business; and
o an initial public offering of common stock of CombiMatrix Corporation
and the spin-off of the balance of that company to holders of our
existing common stock.
-65-
Our board of directors used several criteria to contrast the benefits and
drawbacks of these transaction alternatives to you including:
o tax efficiency;
o capital markets acceptance;
o likelihood of success;
o flexibility to provide equity incentives for employees;
o ability of CombiMatrix Corporation to raise equity capital in the
future; and
o long-term maximization of our investment in CombiMatrix Corporation.
Our board of directors concluded that an initial public offering or
spin-off of shares of CombiMatrix Corporation would not be feasible at this time
because an initial public offering would not achieve the separation and
maximization of the value of our two business groups, and market conditions have
prevented CombiMatrix Corporation and similar companies from having the access
to capital necessary for an initial public offering at this time. Our board of
directors concluded that a spin-off of shares was not feasible due to tax
constraints and because such a spin-off would not provide a vehicle for raising
equity capital.
Our board of directors further concluded that to effectuate the
recapitalization proposal, it would be beneficial to acquire the minority
interests in CombiMatrix Corporation. Minority interests were created primarily
in connection with the sale of CombiMatrix Corporation common stock to third
parties in connection with its initial formation in April 1996 several private
equity financings (for the purposes of raising capital for ongoing operations)
occurring during the period from May 1997 to August 2000 and settlement of
litigation. In March 2000, in the most recent of the private equity financings,
Acacia Research purchased 2,000,000 shares of CombiMatrix Corporation common
stock at $5.00 per share. At October 3, 2002, CombiMatrix Corporation had
approximately 240 stockholders other than Acacia Research, none of which were
our affiliates. From time to time, Acacia Research has purchased shares directly
from other stockholders. Shares purchased from such stockholders occurred on
separate occasions in 1998, 2000 and 2001 and involved a total of 1,578,850
shares. None of the shares purchased were purchased from affiliates of Acacia
Research or CombiMatrix Corporation.
Our board of directors reached the conclusion that it would be beneficial
to acquire the CombiMatrix minority interests due to the fact that owning 100%
of CombiMatrix Corporation would provide several benefits to Acacia Research and
its stockholders including:
o the AR-CombiMatrix stock would reflect fully the value of CombiMatrix
Corporation, increasing the group's overall value and potential access
to capital following the merger and recapitalization;
o Acacia Research would retain full control over CombiMatrix
Corporation, freeing Acacia Research to act in the best interests of
Acacia Research and its stockholders without concern of harming the
CombiMatrix Corporation minority stockholders; and
o Acacia Research could potentially avoid claims of unfair treatment to
CombiMatrix Corporation's minority stockholders by permitting them to
participate in the recapitalization and achieve liquidity for their
ownership interests in CombiMatrix Corporation.
Our board of directors discussed at length the valuation methodology that
would be used in valuing CombiMatrix Corporation common stock in the merger. Our
board determined that because the merger would be contingent on approval of the
recapitalization proposal and CombiMatrix Corporation stockholders would receive
only AR-CombiMatrix stock in the merger, the CombiMatrix Corporation
stockholders would be issued a percentage of AR-CombiMatrix stock representing
their existing percentage ownership interests in CombiMatrix Corporation. At the
meeting on February 25, 2002, our board of directors approved the
recapitalization and merger
-66-
transaction in principle, recognizing that the proposals would be subject to a
number of conditions, including negotiation of a definitive merger agreement and
a determination by our accountants that the recapitalization and merger would be
tax-free to you and us.
On February 26, 2002, the CombiMatrix Corporation board of directors met to
consider the proposed merger. At this meeting, CombiMatrix Corporation
management and its financial, accounting and legal advisors reviewed with these
directors the status of negotiations and potential transaction terms under
discussion. The disinterested director reviewed an overview of various aspects
of the proposed transaction structure, including the proposed exchange ratio of
the merger and a review of businesses and assets that were proposed to be
attributed to the new classes of Acacia Research common stock. At that meeting
the CombiMatrix Corporation board of directors approved the formation of a
special committee consisting of its disinterested director, Rigdon Currie, to
consider and evaluate the benefits of the merger, negotiate the terms of the
transaction, consider whether such terms and conditions are fair, from a
financial point of view, to CombiMatrix Corporation and its stockholders, and
report such findings and make a recommendation to the CombiMatrix Corporation
board. The special committee was also authorized to hire financial and legal
advisers and other experts it deemed necessary. At that meeting, the CombiMatrix
Corporation board of directors approved in principle the merger, subject to a
number of conditions, including the negotiation of a definitive merger
agreement, receipt of a fairness opinion, the favorable recommendation of the
special committee and other customary conditions. Accordingly, although the
proposed exchange ratio for the merger had been approved by the boards of both
Acacia Research and CombiMatrix Corporation by February 28, 2002, final
agreement on the exchange ratio remained subject to approval or re-negotiation
by the special committee and receipt of a fairness opinion, among other
conditions.
At the February 26, 2002 meeting, the CombiMatrix Corporation board also
referred the merger proposal to the CombiMatrix Corporation joint business
development committee, which is a committee established under CombiMatrix
Corporation's charter documents for the purpose of resolving conflicts of
interest. The joint business development committee is comprised of an equal
number of designees of Acacia Research and CombiMatrix Corporation. It was
intended that this equal representation would help resolve potential conflicts
of interest between the two companies in a manner that would be fair to both
companies. The joint business development committee considered and approved the
merger proposal on March 19, 2002.
The members of the joint business development committee designated by
Acacia Research are Paul Ryan, Robert Harris and Robert Berman, and the
designees appointed by CombiMatrix Corporation are Amit Kumar, Scott Burell and
Donald Montgomery. Messrs. Ryan, Harris and Berman are the Chairman and Chief
Executive Officer, President, and Senior Vice President of Business Development,
General Counsel and Secretary respectively of Acacia Research. Messrs. Kumar,
Burrell, and Montgomery are the President and Chief Executive Officer, Senior
Vice President of Finance and Treasurer, and Senior Vice President and Chief
Technology Officer, respectively, of CombiMatrix Corporation. In addition
Messrs. Ryan and Harris are directors of Acacia Research and Messrs. Ryan, Kumar
and Montgomery are directors of CombiMatrix Corporation.
On February 26, 2002, after the board meeting, the special committee
appointed by the board elected to engage the law firm of McKenna & Cuneo LLP
("McKenna") as legal counsel to the special committee. Thereafter on March 19,
2002, the special committee engaged A.G. Edwards & Sons, Inc. to act as
financial adviser to the special committee and to analyze a number of valuation
metrics applicable to the potential transaction based upon materials previously
distributed to the board. Commencing on March 21, 2002, A.G. Edwards conducted a
financial investigation of CombiMatrix Corporation's business and operations and
performed certain analyses. Among other things, representatives of A.G. Edwards
met with CombiMatrix Corporation officers and key employees and reviewed various
documents, financial statements and projections and other reports and material
provided by us and CombiMatrix Corporation.
On March 8, 2002, Allen Matkins circulated an initial draft of the merger
agreement. There ensued over the next several weeks a series of conference calls
and negotiations followed by numerous revisions and recirculations of the merger
agreement. During this period of time, representatives of Acacia Research and
Allen Matkins conducted due diligence and spoke on numerous occasions regarding
the documents to be prepared in connection with the recapitalization.
-67-
Between March 8, 2002 and March 19, 2002, there were several discussions
between representatives of the CombiMatrix Corporation special committee and us
in which the terms of the merger agreement were discussed and negotiated.
However, as a result of these negotiations, it was agreed that certain of the
representations and warranties made under the merger agreement would survive for
a 180 days following the merger instead of terminating upon consummation of the
merger as originally proposed, and that stock options of CombiMatrix Corporation
employees would be assumed by Acacia Research. During these negotiations, the
special committee consulted with McKenna, A.G. Edwards and CombiMatrix
Corporation management.
On March 19, 2002, our board of directors met and confirmed its prior
conclusions concerning alternatives available to us and identified the following
as the advantages of the recapitalization proposal and the merger proposal:
o The creation of two classes of common stock intended to reflect
separately the performance of the CombiMatrix group and the Acacia
Technologies group is expected to increase stockholder value and
accommodate investor interests by more specifically tracking the
earnings, cash flows and investment results of each group. The
AR-CombiMatrix stock is expected to be valued in the market based on
the success of its research and development efforts and progress in
meeting its business plan. The AR-Acacia Technologies stock's
valuation is expected to be based on growth in earnings and cash
flows. As a result, we expect that holders of AR-CombiMatrix stock and
AR-Acacia Technologies stock will be distinct investor groups;
o The merger should permit the AR-CombiMatrix stock to reflect fully the
value of CombiMatrix Corporation, should provide greater marketability
of the AR-CombiMatrix stock by increasing its attractiveness to
potential investors as a result of the ability to fully control
CombiMatrix Corporation, and should eliminate potential claims by the
CombiMatrix Corporation minority stockholders regarding their ability
to participate in the recapitalization;
o The creation of two classes of common stock should facilitate research
coverage by industry specific research analysts, and thus should
provide increased market awareness of Acacia Research and each of the
two groups;
o The creation of two classes of common stock should enhance the
autonomy of each of the groups by allowing each group and its
management to focus on that group's own identity, business strategy,
financial model and culture and to structure employee incentives which
are tied directly to the share performance of that group;
o The financial and strategic flexibility, after the recapitalization,
for us to raise capital for the CombiMatrix group and the Acacia
Technologies group and to engage in mergers, acquisitions, strategic
investments, capital restructurings and other transactions affecting
either the CombiMatrix group or the Acacia Technologies group should
be enhanced as a result of the availability of two different equity
securities. In the ordinary course of business, our board of directors
may consider such transactions from time to time, but it has no
current plans or intentions with respect to any specific transaction;
o The recapitalization benefits the stockholders of CombiMatrix
Corporation by providing them liquid, publicly-traded NASDAQ listed
shares; and
o The implementation of the recapitalization proposal and the merger
proposal is not expected to be taxable to us or you, except for cash
received instead of fractional shares of AR-CombiMatrix stock.
Our board of directors also considered the following potential
disadvantages of the recapitalization proposal and the merger proposal:
o The recapitalization proposal requires a complex capital structure
that may not be well-understood by investors and thus could inhibit
the efficient valuation of either or both classes of common stock;
-68-
o The potential diverging or conflicting interests of the two groups and
the issues that could arise in resolving any conflicts;
o Investors in the AR-CombiMatrix stock and the AR-Acacia Technologies
stock will be exposed to the risks of our consolidated businesses and
liabilities because both groups remain legally a part of Acacia
Research;
o The market values of the AR-CombiMatrix stock and the AR-Acacia
Technologies stock could be affected by market reaction to decisions
by our board of directors and management that investors perceive to
affect differently one class of common stock compared to the other,
such as decisions regarding the allocation of assets, expenses,
liabilities and corporate opportunities and financing resources
between the groups;
o The possible inability or increased difficulty of receiving a ruling
from the Internal Revenue Service in connection with a proposed
acquisition to be effected using either the AR-CombiMatrix stock or
the AR-Acacia Technologies stock; and
o The risks related to the recapitalization and merger as set forth in
the risk factors beginning on page 41.
Our board of directors determined that on balance the potential advantages
of the recapitalization proposal outweigh the potential disadvantages and
concluded that the recapitalization proposal is in the best interests of Acacia
Research and our stockholders. In addition, after an extensive discussion and
considering such factors as the fairness of the consideration to be paid to the
stockholders of CombiMatrix Corporation from a financial point of view and the
terms of the merger agreement, our board determined that the merger proposal is
in our best interests and the best interests of our stockholders.
On March 19, 2002, our board of directors unanimously approved the
agreement and plan of merger, implementing the recapitalization and the calling
of the special meeting.
On March 19, 2002, the board of directors of CombiMatrix Corporation met to
discuss and evaluate the merger. The board of CombiMatrix Corporation noted that
the CombiMatrix Corporation special committee had met with representatives of
McKenna and A.G. Edwards on several occasions and that the special committee and
McKenna had negotiated the terms of the merger agreement. After an extensive
discussion and considering numerous factors, including the liquidity that could
be attained by the CombiMatrix Corporation stockholders as a result of the
merger and recapitalization, the consideration being paid in the merger and
other factors it deemed relevant, the CombiMatrix Corporation board of directors
unanimously approved the agreement and plan of merger and the calling of a
special meeting; subject, however, to receipt of an opinion of A.G. Edwards that
the consideration to be paid to the stockholders of CombiMatrix Corporation is
fair from a financial point of view.
RECOMMENDATION OF OUR BOARD OF DIRECTORS
OUR BOARD OF DIRECTORS HAS CAREFULLY CONSIDERED THE RECAPITALIZATION
PROPOSAL AND BELIEVES THAT THE RECAPITALIZATION PROPOSAL IS IN THE BEST
INTERESTS OF ACACIA RESEARCH AND OUR STOCKHOLDERS. OUR BOARD OF DIRECTORS
UNANIMOUSLY RECOMMENDS THAT YOU APPROVE THE RECAPITALIZATION PROPOSAL.
OPINION OF A.G. EDWARDS
On behalf of CombiMatrix Corporation and its board of directors, the
CombiMatrix Corporation special committee retained A.G. Edwards to render an
opinion as to whether the consideration to be received by the minority
stockholders of CombiMatrix Corporation in the proposed merger was fair, from a
financial point of view, to the minority stockholders. A.G. Edwards issued an
opinion, as of April 17, 2002, that the consideration to be received by the
minority stockholders of CombiMatrix Corporation in the proposed merger was
fair, from a financial point of view, to the minority stockholders.
-69-
A.G. Edwards, as part of its investment banking business, is regularly
engaged in the valuation of businesses and their securities in connection with
mergers and acquisitions, negotiated underwritings, competitive biddings,
secondary distributions of listed and unlisted securities, private placements
and valuations for estate, corporate and other purposes. A.G. Edwards is not
aware of any present or contemplated relationship between A.G. Edwards and
CombiMatrix Corporation or its directors and officers or its stockholders, or
between A.G. Edwards and Acacia Research or its directors and officers or its
stockholders, which in A.G. Edwards' opinion would affect its ability to render
a fair and independent opinion in this matter.
In arriving at its written opinion, A.G. Edwards considered, among other
things: (i) the signed merger agreement and discussions with counsel
representing Acacia Research, CombiMatrix Corporation and the special committee
concerning the merger agreement and other related documents; (ii) the historical
and future business and operations of Acacia Research, CombiMatrix Corporation
and Acacia Media Technologies Corporation; (iii) the historical financial
performance of Acacia Research through a review of their audited financial
results; (iv) the historical and forecasted financial statements for CombiMatrix
Corporation as prepared by its management; (v) an investigation of the future
operational and financial performance and anticipated cash needs of CombiMatrix
and Acacia Media Technologies Corporation, respectively; (vi) an investigation
regarding the current operations and future prospects of CombiMatrix Corporation
and Acacia Media Technologies Corporation, primarily through discussions with
the managements of CombiMatrix Corporation and Acacia Media Technologies
Corporation, respectively; (vii) the biological array processor market and the
primary market segments CombiMatrix Corporation will pursue; (viii) the market
data for stocks of public companies in the same or similar markets as
CombiMatrix Corporation; (ix) an investigation of the existing patent portfolio
of Acacia Media Technologies Corporation through discussions with internal and
external counsel representing Acacia Media Technologies Corporation; (x) an
investigation of the role and responsibilities of Acacia Research concerning the
post-merger management and operations of CombiMatrix Corporation and Acacia
Media Technologies Corporation; (xi) the history and performance of "tracking"
stocks and similar transaction structures; (xii) an investigation of studies
related to marketability discounts applied to minority interests in private
companies; (xiii) Acacia Research's annual report on Form 10-K for its fiscal
year ended December 31, 2001, Acacia Research's quarterly reports on Form 10-Q
for its fiscal quarters ended March 31, 2001, June 30, 2001 and September 30,
2001, and certain other publicly available information for CombiMatrix
Corporation and Acacia Research; and (xiv) such other studies and analyses that
A.G. Edwards considered appropriate.
In preparing its opinion, A.G. Edwards has assumed and relied upon the
accuracy and completeness of all financial and other information that was
publicly available, or supplied or otherwise made available to A.G. Edwards by
CombiMatrix Corporation, Acacia Research and Acacia Media Technologies
Corporation. A.G. Edwards has not been engaged to, and therefore has not,
verified the accuracy or completeness of any such information. A.G. Edwards has
relied upon the assurances of the managements of CombiMatrix Corporation, Acacia
Research and Acacia Media Technologies Corporation that they are not aware of
any facts that would make any financial or other information inaccurate or
misleading. For purposes of the opinion, management of CombiMatrix Corporation
provided A.G. Edwards with projections regarding the future financial
performance of CombiMatrix Corporation. These projections vary from historical
trends primarily because CombiMatrix Corporation has been a development stage
company and management anticipates that future revenues and results of
operations will reflect the results of the company's research and development
efforts and the sale of products and services that were previously in
development. A.G. Edwards has been informed and assumed that financial
projections supplied to, discussed with or otherwise made available to it
reflect the best currently available estimates and judgments of the management
of CombiMatrix Corporation as to the expected future financial performance of
CombiMatrix Corporation. A.G. Edwards has not independently verified such
information or assumptions nor does it express any opinion with respect thereto.
A.G. Edwards has not made any independent valuation or appraisal of the
assets or liabilities of CombiMatrix Corporation, Acacia Research or Acacia
Media Technologies Corporation, nor has it been furnished with any such
valuations or appraisals. A.G. Edwards also did not independently attempt to
assess or value any of the intangible assets (including goodwill) nor did it
make any independent assumptions with respect to their application in the
merger.
A.G. Edwards was not engaged to and did not review, nor is it expressing
any opinion with respect to, any alternative transaction or strategic
alternatives that may be available to CombiMatrix Corporation or its minority
-70-
stockholders. A.G. Edwards has not expressed any opinion as to what the value of
CombiMatrix Corporation's common stock has been or will be, nor have we
considered the tax implications of the merger. A.G. Edwards' opinion also does
not address the merits of the underlying decision by CombiMatrix Corporation to
engage in the merger. A.G. Edwards' opinion is necessarily based on the
economic, market and other conditions as in effect on, and the information made
available to A.G. Edwards as of April 17, 2002. A.G. Edwards has not undertaken
any process to update its opinion since its issuance on April 17, 2002,
therefore the opinion and the process and procedures described herein do not
reflect any change in market conditions or the financial condition or prospects
of CombiMatrix Corporation, Acacia Research or Acacia Media Technologies
Corporation since that date.
The full text of the written opinion of A.G. Edwards dated April 17, 2002
setting forth the assumptions made, matters considered and limitations on
reviews undertaken, is attached hereto as Annex G to this proxy statement and
prospectus and is incorporated herein by reference. Minority stockholders of
CombiMatrix Corporation are urged to read the opinion, together with the
assumptions and considerations set forth therein, in its entirety. A.G. EDWARDS'
OPINION WAS PREPARED FOR THE INFORMATION OF THE SPECIAL COMMITTEE OF THE BOARD
OF DIRECTORS OF COMBIMATRIX CORPORATION AND DOES NOT CONSTITUTE A RECOMMENDATION
AS TO HOW ANY HOLDER OF THE OUTSTANDING SHARES OF COMBIMATRIX CORPORATION'S
COMMON STOCK SHOULD VOTE WITH RESPECT TO THE MERGER.
Several factors influenced A.G. Edwards' opinion regarding the exchange of
a minority interest in a privately held company for an economic interest in a
publicly-traded entity. A.G. Edwards analyzed these factors and compared the
benefits, the risks and concerns of owning the proposed class of publicly traded
stock versus owning a minority position in an illiquid, privately held company.
The following is a summary of the analyses used by A.G. Edwards in
rendering its opinion.
ANALYSIS OF TRACKING STOCKS. A.G. Edwards researched and analyzed a number
of factors typically associated with stocks structured to reflect the
performance of a particular business segment or unit within a corporation (i.e.
tracking stocks) and their application in this transaction. As part of its
analysis, A.G. Edwards reviewed a number of independent third-party studies
concerning the benefits, risks and historical performance of publicly-traded
tracking stocks. A.G. Edwards' analysis evaluated certain risks associated with
tracking stocks and the mitigating factors proposed in the transaction. These
risks were mitigated in a variety of ways. For example, (a) the risk related to
AR-CombiMatrix stockholders having limited and variable voting rights was
mitigated by the fact that voting rights with respect to the two classes of
stock will be based on relative market capitalization and management believes
that the aggregate market value, and hence voting right, of AR-CombiMatrix stock
will be greater than the aggregate market value, and hence voting right, of the
AR-Acacia Technologies stock; (b) the risk that there will be limited remedies
available if a business decision disadvantages AR-CombiMatrix stockholders is
mitigated by the fact that our board of directors has a fiduciary duty to all
the stockholders and the fact that minority stockholders will have voting rights
with respect to certain issues including potential mergers; and (c) the risk
related to the potential for divergent or conflicting stockholder interests has
been mitigated by the establishment of policies and guidelines for our board of
directors for the resolution of potential divergent or conflicting interests.
These mitigating factors are not necessarily unique to this transaction and are
similar to mitigating factors commonly associated with other tracking stocks.
A.G. Edwards also compared marketability discounts typically associated with
tracking stocks against the marketability discounts typically associated with
minority positions in private companies.
ANALYSIS OF IMPACTS ON MINORITY STOCKHOLDERS' INTERESTS. A.G. Edwards
reviewed the potential impact of the proposed transactions on a number of
factors affecting the value of the minority stockholders' interests, including
changes in economic interests, liquidity, marketability discounts, access to
capital, research coverage, legal ownership, voting rights, voting control,
board representation, management and reporting and disclosure. The impact of the
proposed transactions on these factors is summarized in the following table:
-71-
-----------------------------------------------------------------------------------------------------------------------------------
FACTOR PRE-TRANSACTION POST-TRANSACTION
-----------------------------------------------------------------------------------------------------------------------------------
Economic Approximately 42%(1) economic interest in Approximately 42%(1) economic interest AR-CombiMatrix
Interests CombiMatrix Corporation via its common stock. stock.
-----------------------------------------------------------------------------------------------------------------------------------
Liquidity Illiquid, private company stock. Publicly-traded stock with liquidity opportunities
dictated by trading volumes and market-making.
-----------------------------------------------------------------------------------------------------------------------------------
Marketability Typical discounts are 30-45% for minority Discounts for tracking stocks are typically smaller than
Discount positions in private companies. discounts for illiquid minority positions.
-----------------------------------------------------------------------------------------------------------------------------------
Access to Limited. May be improved due to public trading status.
Capital
-----------------------------------------------------------------------------------------------------------------------------------
Research Coverage None. Significantly increases probability of research coverage
due to independence and business focus.
-----------------------------------------------------------------------------------------------------------------------------------
Legal Approximately 42%(1) minority ownership. 42%(1) minority ownership of AR-CombiMatrix shares with
Ownership priority claim on CombiMatrix Corporation's assets upon
a liquidity event. No ownership of AR-Acacia
Technologies shares.
-----------------------------------------------------------------------------------------------------------------------------------
Voting Rights In proportion to shares owned of CombiMatrix One share equals one vote; overall voting power
Corporation, but no rights pertaining to Acacia dependent on relative market value of AR-CombiMatrix and
Research. AR-Acacia Technologies common stock. No separate class
voting rights.
-----------------------------------------------------------------------------------------------------------------------------------
Voting Control Acacia Research controls voting with 58%(2) Part of a diffuse stockholder base with no blocking or
ownership stake and 12%(3) additional voting control controlling party.
through stockholder agreement.
-----------------------------------------------------------------------------------------------------------------------------------
Board CombiMatrix Corporation-specific board significantly Acacia Research board with no separate corporate
Representation controlled by Acacia Research. governance.
No rights regarding election of Acacia Research Minority stockholders will have voting rights regarding
board. Acacia Research board.
-----------------------------------------------------------------------------------------------------------------------------------
Management Current CombiMatrix Corporation management. Same.
-----------------------------------------------------------------------------------------------------------------------------------
Reporting and Treated as significant part of Acacia Research's Same.
Disclosure business; therefore segment information and material
events disclosed as if group was an SEC-reporting
company.
-----------------------------------------------------------------------------------------------------------------------------------
(1) Percentage as of April 17, 2002, the date of A.G. Edwards' opinion. As of
November 1, the percentage was 52%.
(2) Percentage as of April 17, 2002. As of November 1, the percentage was 48%.
(3) Percentage as of April 17, 2002. As of November 1, the percentage was 10%.
-72-
A.G. Edwards believes that its analyses of the above items must be
considered as a whole and that selecting individual items or portions of such
analyses, without considering all factors and analyses, would create an
incomplete view of the processes underlying the analyses set forth in the A.G.
Edwards report and its fairness opinion. A.G. Edwards concluded that the impact
on these items, taken as a whole, supported its conclusion as to the fairness of
the consideration.
VOTING RIGHTS AND VALUATION ANALYSIS. Due to the fact that the relative
voting rights of the AR-CombiMatrix stock and the AR-Acacia Technologies stock
will be determined by the public market values of the stocks, A.G. Edwards
utilized several methodologies to establish an initial valuation range for each
group solely for the purposes of comparing voting rights following the
transactions. A.G. Edwards concluded that the stockholders of AR-CombiMatrix
stock would likely have majority voting control following the recapitalization
and merger based upon the fact that the results of the valuation analyses
indicated that the AR-CombiMatrix stock would have a higher relative initial
valuation than the AR-Acacia Technologies stock. These valuation methodologies
included (i) an analysis of companies that could be considered comparable to
CombiMatrix Corporation, (ii) a discounted cash flow analysis utilizing
CombiMatrix management's projections of anticipated future cash flows, (iii) an
analysis of the cost of acquiring Acacia Technologies' patent portfolio, and
(iv) a comparison of the implied value of CombiMatrix Corporation and the Acacia
Technologies group to the overall value of Acacia Research.
A.G. Edwards concluded that the voting rights of existing CombiMatrix
minority stockholders were not likely to be adversely affected by the merger and
recapitalization. This finding was based principally upon the fact that both
prior to and following the proposed transactions the minority stockholders will
have a minority stockholder interest and that such stockholders constitute and
will constitute a group of mostly unrelated individuals and entities unable to
exert effective control over CombiMatrix Corporation and Acacia Research, as
applicable.
OTHER MATTERS. The preparation of a fairness opinion is not necessarily
susceptible to partial analyses or summary. In rendering its fairness opinion,
A.G. Edwards applied its judgment to a variety of complex analyses and
assumptions. A.G. Edwards may have given various analyses more or less weight
than other analyses, and may have deemed various assumptions more or less
probable than other assumptions. The assumptions made, and the judgments
applied, by A.G. Edwards in rendering its opinion are not readily susceptible to
description beyond that set forth in the written text of the fairness opinion
itself.
We have not requested, nor has A.G. Edwards provided, an updated fairness
opinion as a result of events subsequent to April 17, 2002, because we do not
believe that such subsequent events materially change the basic analyses and
conclusions underlying A.G. Edwards' opinion. Events subsequent to April 17,
2002, including the settlement with Nanogen, Inc., resulted in a change in the
ownership percentages of the stockholders of CombiMatrix Corporation. The impact
of the changed ownership percentages on the pre- and post-transaction economic
interest, legal ownership, and voting control components of A.G. Edwards'
analysis is reflected in the footnotes to the table above. Notwithstanding such
changes in the percentage interests held by each CombiMatrix stockholder,
including Acacia Research, it is our view that the effect of the
recapitalization and merger on the CombiMatrix minority stockholders remains the
same, in that each share of CombiMatrix Corporation common stock will still be
exchanged for one share of AR-CombiMatrix stock, CombiMatrix Corporation
stockholders will still be entitled to receive the same percentage of the
AR-CombiMatrix stock as their percentage interest in CombiMatrix Corporation
common stock immediately prior to the recapitalization and merger, CombiMatrix
stockholders will still obtain greater liquidity for their shares, and there
will be no material impact on the other factors discussed in the table above.
Notwithstanding the fact that following the recapitalization and merger,
Nanogen, Inc. will hold approximately 17.5% of the outstanding AR-CombiMatrix
stock, we do not believe that it is likely that Nanogen, Inc. will be able to
exercise control or materially influence the business of Acacia Research
following the recapitalization and merger. The reasons for this belief include
(i) the fact that Nanogen, Inc. will be a minority stockholder of both the
AR-CombiMatrix stock and Acacia Research as a whole, with a voting interest of
less than 17.5% on all matters on which the AR-CombiMatrix stock and the
AR-Acacia Technologies stock vote together, (ii) we do not believe that Nanogen,
Inc. has organized or is likely to organize a voting group that will be able to
exercise significant influence, and (iii) the lack of any special voting rights
or other contractual rights that would allow Nanogen, Inc. to exert influence or
control over Acacia Research beyond, the voting power represented by its shares
of AR-CombiMatrix stock.
-73-
A.G. Edwards' opinion does not cover the fairness of the transaction to
Nanogen, Inc., because Nanogen, Inc. became a stockholder of CombiMatrix
Corporation after the date of A.G. Edwards' opinion, which is limited to its
date.
In performing its analyses, A.G. Edwards made numerous assumptions with
respect to industry performance and general business and economic conditions,
which are beyond the control of CombiMatrix Corporation. Such analyses were
prepared solely as part of A.G. Edwards' analysis of the fairness of the
consideration to be received by CombiMatrix Corporation in the merger, pursuant
to the merger agreement, and were provided to CombiMatrix Corporation's special
committee in connection with the delivery of A.G. Edwards' fairness opinion. In
addition, as described above, A.G. Edwards' opinion and presentation to
CombiMatrix Corporation's special committee of the board of directors was one of
many factors taken into consideration by the special committee in making its
determination to approve the merger agreement.
The terms of the engagement of A.G. Edwards by CombiMatrix Corporation are
set forth in a letter agreement dated March 13, 2002 between A.G. Edwards and
CombiMatrix Corporation. Pursuant to the terms of that agreement and an
amendment dated August 2, 2002, as compensation for rendering its opinion to the
special committee, CombiMatrix Corporation agreed to pay A.G. Edwards total fees
of $375,000. In addition, CombiMatrix Corporation agreed to reimburse A.G.
Edwards for the reasonable travel and out-of-pocket expenses incurred in
connection with its engagement. CombiMatrix Corporation and Acacia Research have
agreed to indemnify A.G. Edwards against certain liabilities in connection with
the engagement of A.G. Edwards.
MANAGEMENT AND ALLOCATION POLICIES
One of the fundamental objectives of the recapitalization proposal is to
separate the business and operations of the two groups and to operate each group
on a stand-alone basis. In order to accomplish this objective in a fair and
equitable manner, our board of directors has established management and
allocation policies to help us allocate costs and charges between the two groups
on an objective basis. These policies pertain to issues such as the allocation
of debt, corporate overhead, interest, dividends, finances, taxes and other
charges between the two groups, the financing of each group, corporate
opportunities and competition between groups. We will allocate our corporate
overhead to each group based upon the use of services by that group, where
practicable. Corporate overhead includes costs of our personnel and employee
benefits, legal, accounting and auditing, tax, insurance, investor relations and
stockholder services and services related to our board of directors. We will
allocate in a similar manner a portion of our costs of administrative shared
services, such as information technology services. Where determinations based on
use alone are not practical, we will use other methods and criteria that we
believe are equitable and provide a reasonable estimate of the cost attributable
to the groups.
Our board of directors will establish a standing committee with the
authority to (i) interpret, make determinations under, and oversee the
implementation of the Common Stock Policies other than as they relate to
dividends; (ii) adopt additional general policies; and (iii) engage third party
service providers to assist in discharging its duties.
POLICIES SUBJECT TO CHANGE WITHOUT STOCKHOLDER APPROVAL
We have summarized the management and allocation policies as we expect them
to be effective upon the recapitalization. We are not requesting stockholder
approval of these policies.
Our board of directors may modify or rescind these policies, or may adopt
additional policies, in its sole discretion without stockholder approval. This
could have different effects upon holders of AR-CombiMatrix stock and holders of
AR-Acacia Technologies stock or could result in a benefit or detriment to one
class of stockholders compared to the other class. Our board of directors would
make any such decision in accordance with its good faith business judgment that
such decision is in the best interests of Acacia Research and all of our
stockholders as a whole.
-74-
ALLOCATION OF ASSETS
These policies set forth our board of directors' intention regarding the
attribution of assets. Assets are to be attributed between the two groups
principally according to the assets attributable to the separate businesses that
comprise each group. The CombiMatrix group is comprised of the businesses
relating to CombiMatrix Corporation and Advanced Material Sciences, a
majority-owned subsidiary of CombiMatrix Corporation, and the assets of Acacia
Research directly attributable to the CombiMatrix group. The Acacia Technologies
group is principally comprised of the businesses relating to Soundview
Technologies Incorporated and Acacia Media Technologies Corporation, and the
assets of Acacia Research directly attributable to the Acacia Technologies
group. We currently intend to attribute all of our present and future interests
worldwide in our life sciences business to the CombiMatrix group and to
attribute all of our present and future interests worldwide in our media
technology businesses to the Acacia Technologies group.
FIDUCIARY AND MANAGEMENT RESPONSIBILITIES
Because the CombiMatrix group and the Acacia Technologies group will
continue to be a part of a single company, our directors and officers will have
the same fiduciary duties to holders of the AR-CombiMatrix stock and the
AR-Acacia Technologies stock that they currently have to the holders of our
existing common stock. Under Delaware law, absent an abuse of discretion, a
director or officer will be deemed to have satisfied his or her fiduciary duties
to Acacia Research and our stockholders if that person is disinterested and acts
in accordance with his or her good faith business judgment in the interests of
Acacia Research and all of our stockholders as a whole. Our board of directors
and chief executive officer, in establishing policies with regard to
intra-company matters such as business transactions between groups and
allocations of assets, liabilities, debt, corporate overhead, taxes, interest,
corporate opportunities and other matters, will consider various factors and
information which could benefit or cause detriment to the stockholders of the
respective groups and will make determinations in the best interests of Acacia
Research and all of our stockholders as a whole.
It is unlikely that the interests of the CombiMatrix group and the Acacia
Technologies group will conflict because they operate in very different types of
businesses. If and when there are conflicting interests between the two groups,
the directors of Acacia Research will use good faith business judgment to
resolve such conflicts. The board will also seek to form two committees of
independent directors, one related to each group, to evaluate the fairness of a
contemplated transaction from the perspective of each group if the board
determines that the nature of the conflicting interests warrant doing so.
Because the recapitalization will result in no change in our corporate
structure, Paul R. Ryan, our Chairman and Chief Executive Officer, will have the
same duties and responsibilities for the management of our assets and businesses
which comprise the CombiMatrix group and the Acacia Technologies group following
the recapitalization as he has now. The individuals named below will hold the
positions in Acacia Research listed next to their names and will continue to
have the same general responsibilities that they had prior to the
recapitalization. The costs attributable to their responsibilities will be
allocated as discussed below under "--Financial Statements; Allocation
Matters-Corporate Overhead and Administrative Shared Services."
NAME POSITIONS WITH THE COMPANY
------------------- ----------------------------------------------------------------------------
Paul R. Ryan Chairman and Chief Executive Officer
Robert L. Harris II President
Clayton J. Haynes Senior Vice President, Chief Financial Officer and Treasurer
Robert A. Berman Senior Vice President of Business Development, General Counsel and Secretary
Roy Mankovitz Senior Vice President, Intellectual Property
Robert B. Stewart Senior Vice President, Corporate Development
Andrew H. Duncan Vice President, Business Development
John H. Roop Vice President, Engineering
Alejandro Magana Vice President, International Licensing
-75-
Our board of directors has designated separate management teams for each of
the CombiMatrix group and the Acacia Technologies group, consisting of officers
of the subsidiaries that make up those groups, to ensure that the efforts of
each team of managers are focused on the business and operations for which they
have responsibility. These individuals are named in "CombiMatrix
Group-Business-Management" and "Acacia Technologies Group-Business-Management."
DIVIDEND POLICY
We have not paid cash dividends on our existing common stock and do not
anticipate paying cash dividends on the AR-CombiMatrix stock or the AR-Acacia
Technologies stock for the foreseeable future.
In making its dividend decisions regarding the AR-CombiMatrix stock and the
AR-Acacia Technologies stock, our board of directors will rely on the respective
financial statements of the CombiMatrix group and the Acacia Technologies group.
See the historical financial statements of the CombiMatrix group and the Acacia
Technologies group included in this proxy statement. The method of calculating
net income (loss) per share for the AR-CombiMatrix stock and the AR-Acacia
Technologies stock is set forth in the restated certificate of incorporation in
ANNEX B under the definitions of Acacia Research Corporation Earnings (Loss)
Attributable to the CombiMatrix Group and Acacia Research Corporation Earnings
(Loss) Attributable to the Acacia Technologies Group. We encourage you to
carefully read these definitions.
Our board of directors does not currently intend to change the
above-described dividend policy but reserves the right to do so at any time
based primarily on the financial condition, results of operations and capital
requirements of the respective groups and of Acacia Research as a whole. Future
dividends on the AR-CombiMatrix stock and the AR-Acacia Technologies stock will
be payable when, as and if declared by our board of directors out of the lesser
of (1) all funds of Acacia Research legally available therefor and (2) the
amount calculated under the definition of that group's Available Dividend Amount
contained in the restated certificate of incorporation in ANNEX B. We encourage
you to carefully read these definitions. Each group's Available Dividend Amount
is intended to be similar to the amount that would be legally available for the
payment of dividends on the stock for that group under Delaware law if that
group were a separate company.
FINANCING ACTIVITIES
GENERAL. We will continue to manage most financial activities on a
centralized basis. These activities include the investment of surplus cash, the
issuance and repayment of short-term and long-term debt and the issuance and
repurchase of any preferred stock. If Acacia Research transfers cash or other
property allocated to one group to the other group, we will account for such
transfer as a short term loan unless the board of directors determines that a
given transfer (or type of transfer) should be accounted for as a long-term
loan, a capital contribution, or as a return of capital.
Other than cash advances exceeding $25 million, our board of directors has
not adopted specific criteria to determine which of the foregoing will be
applied to a particular transfer of cash or property from one group to the
other. Our board of directors will make these determinations, either in specific
instances or by setting applicable policies generally, in the exercise of its
business judgment based on all relevant circumstances, including the financing
needs and objectives of the receiving group, the investment objectives of the
transferring group, the availability, cost and time associated with alternative
financing sources, prevailing interest rates and general economic conditions. We
will make all transfers of material assets from one group to the other on a fair
value basis for the foregoing purposes, as determined by our board of directors.
Although we may allocate our debt and preferred stock between groups, the
debt and preferred stock will remain our obligations and all of our stockholders
will be subject to the risks associated with those obligations.
INTER-GROUP LOANS. Cash or other property that we allocate to one group
that is transferred to the other group, if accounted for as a short-term loan,
will bear interest at a rate equal to that at which we can borrow such funds.
-76-
EQUITY ISSUANCES AND REPURCHASES AND DIVIDENDS. We will reflect all
financial effects of issuances and repurchases of shares of AR-CombiMatrix stock
or shares of AR-Acacia Technologies stock entirely in the financial statements
of that group. We will reflect financial effects of dividends or other
distributions on, and purchases of, shares of AR-CombiMatrix stock or AR-Acacia
Technologies stock entirely in the respective financial statements of the
CombiMatrix group and the Acacia Technologies group.
INTER-GROUP CONTRACTS AND ACCESS TO TECHNOLOGY AND KNOW-HOW
The terms of all current and future material transactions, relationships
and other matters between the groups, including those as to which the groups may
have potentially divergent interests, will be determined on a basis that the
board of directors, or management following guidelines or principles established
by the board of directors, considers to be in the best interests of Acacia
Research and its stockholders as a whole.
Each group will have free access to all of our technology and know-how
(excluding products and services of the other group) that may be useful in that
group's business, subject to obligations and limitations applicable to Acacia
Research and to such exceptions that its board of directors may determine. The
groups will consult with each other on a regular basis concerning technology
issues that affect both groups.
REVIEW OF CORPORATE OPPORTUNITIES
Our board of directors will review any matter which involves the allocation
of a corporate opportunity to either the CombiMatrix group or the Acacia
Technologies group or in part to the CombiMatrix group and in part to the Acacia
Technologies group. In accordance with Delaware law, our board of directors will
make its determination with regard to the allocation of any such opportunity and
the benefit of such opportunity in accordance with their good faith business
judgment of the best interests of Acacia Research and all of our stockholders as
a whole. Among the factors that our board of directors may consider in making
this allocation is whether a particular corporate opportunity is principally
related to the business of the CombiMatrix group or the Acacia Technologies
group; whether one group, because of its managerial or operational expertise,
will be better positioned to undertake the corporate opportunity; and existing
contractual agreements and restrictions.
FINANCIAL STATEMENTS; ALLOCATION MATTERS
We will prepare financial statements in accordance with generally accepted
accounting principles, consistently applied, for the CombiMatrix group and the
Acacia Technologies group, and these financial statements, taken together, will
comprise all of the accounts included in our corresponding consolidated
financial statements. The financial statements of each of the CombiMatrix group
and the Acacia Technologies group will reflect the financial condition, results
of operations and cash flows of the businesses included therein.
Group financial statements will also include allocated portions of our
debt, interest, corporate overhead and costs of administrative shared services
and taxes. We will make these allocations for the purpose of preparing each
group's financial statements; however, holders of AR-CombiMatrix stock and
AR-Acacia Technologies stock will continue to be subject to all of the risks
associated with an investment in Acacia Research and all of our businesses,
assets and liabilities. See the historical financial statements for the
CombiMatrix group and the Acacia Technologies group included in this proxy
statement.
In addition to allocating debt and interest as described above, our board
of directors has adopted certain allocation policies, each of which is reflected
in the financial statements of the respective groups included in this proxy
statement. In general, we will allocate our corporate overhead to each group
based upon the use of services by that group where practicable. Corporate
overhead includes costs of our personnel and employee benefits, legal,
accounting and auditing, tax, insurance, investor relations and stockholder
services and services related to our board of directors. We will allocate in a
similar manner a portion of our costs of administrative shared services, such as
information technology services. Where determinations based on use alone are not
practical, we will use other methods and criteria that we believe are equitable
and that provide a reasonable estimate of the cost attributable to the groups.
-77-
TAXES
We will determine our federal income taxes and those of our subsidiaries
which own assets allocated between the groups on a consolidated basis. We will
allocate consolidated federal income tax provisions and related tax payments or
refunds between the groups based principally on the financial statements income,
taxable income and tax credits directly attributable to each group under
generally accepted accounting principles. Such allocations will reflect each
group's contribution, whether positive or negative, to our consolidated federal
taxable income and the consolidated federal tax liability and tax credit
position. We will credit tax benefits that can not be used by the group
generating those benefits but can be used on a consolidated basis to the group
that generated such benefits. Inter-group transactions will be treated as taxed
as if each group were a stand-alone company.
COMMON STOCK OWNERSHIP OF DIRECTORS AND SENIOR OFFICERS
As a policy, our board of directors will periodically monitor the ownership
of shares of AR-CombiMatrix stock and shares of AR-Acacia Technologies stock by
our directors and senior officers and our option grants to them so that their
interests are generally aligned with the two classes of common stock and with
their duty to act in the best interests of Acacia Research and our stockholders
as a whole. However, because of the anticipated differences in trading values
between the AR-CombiMatrix stock and the AR-Acacia Technologies stock, the
actual value of their interests in the AR-CombiMatrix stock and AR-Acacia
Technologies stock will vary significantly. Our board of directors will monitor
our affiliates' ownership and option grants in the two classes of stock to try
to avoid making additional option grants to affiliates that might incentivize
them to favor one group over the other.
DESCRIPTION OF AR-COMBIMATRIX STOCK AND AR-ACACIA TECHNOLOGIES STOCK
Following is a summary of the material terms of the AR-CombiMatrix stock
and the AR-Acacia Technologies stock. The summary is not complete. We encourage
you to read the proposed restated certificate of incorporation which is attached
as ANNEX B.
AUTHORIZED AND OUTSTANDING SHARES
Our existing certificate of incorporation authorizes us to issue 80,000,000
shares of stock, consisting of 60,000,000 shares of common stock, par value
$0.001 per share, and 20,000,000 shares of preferred stock, par value $0.001 per
share. Our board of directors may issue shares of preferred stock in series,
without stockholder approval. As of November 1, 2002, a total of 19,640,808
shares of our existing common stock and no shares of preferred stock were issued
and outstanding.
The new certificate of incorporation will authorize Acacia Research to
issue 110,000,000 shares of stock as follows: 50,000,000 shares of a class of
common stock, designated as Acacia Research Corporation-CombiMatrix Common Stock
(the "AR-CombiMatrix stock"), 50,000,000 shares of a class of common stock,
designated as Acacia Research Corporation-Acacia Technologies Common Stock (the
"AR-Acacia Technologies stock"), and 10,000,000 shares of preferred stock.
Shares of each class of stock will have a par value of $0.001 per share. We will
be able to issue shares of preferred stock in series, without stockholder
approval.
Immediately after the recapitalization and merger, assuming the number of
shares of existing Acacia Research common stock and CombiMatrix Corporation
common stock then outstanding is the same as the number outstanding on November
1, 2002, a total of 22,968,551 shares of AR-CombiMatrix stock and 19,640,808
shares of the AR-Acacia Technologies stock will be issued and outstanding.
REASONS FOR INCREASE IN AUTHORIZED COMMON STOCK
The increase in authorized shares is necessary in order to implement the
various aspects of the recapitalization proposal and the issuance of shares in
connection with the merger. The authorization of approximately 33,000,000 shares
of AR-CombiMatrix stock and approximately 27,000,000 shares of AR-Acacia
Technologies stock is needed for the recapitalization and merger to occur. These
estimates include approximately 10,000,000 shares of AR-CombiMatrix stock and
approximately 8,000,000 shares of AR-Acacia Technologies stock
-78-
that will need to be reserved for issuance pursuant to option plans and
outstanding options and warrants. Further, as described under "--Conversion and
Redemption," our board of directors has the right to convert one class of common
stock into the other. The number of shares issuable in a conversion will vary
based on the relative market values of the two classes of common stock and the
number of outstanding shares of common stock being converted and whether or not
the conversion will be at a 10% premium. Our board of directors may also
authorize the issuance of stock dividends.
If our board of directors determines that a conversion or a stock dividend
is in the best interests of Acacia Research, but at that time sufficient
authorized shares of common stock are not available, its stockholders would be
required to approve an amendment to the restated certificate of incorporation.
Our board of directors believes that an increase in the number of
authorized shares of common stock at this time is in the best interests of
Acacia Research so that we have available the number of shares needed for
possible future conversion, dividends, acquisitions or capital raising, and for
our new stockholder rights plan and employee benefit plans.
Other than the issuance of shares under our employee benefit plans or our
outstanding warrants and the issuance of options for AR-CombiMatrix stock and
AR-Acacia Technologies stock as discussed under "--Options to be Issued upon the
Recapitalization and Merger," or the issuance of shares to Nanogen, Inc. as
discussed below under the heading "Antidilution Provisions," we have no present
understanding or agreement for the issuance of any additional shares of
AR-CombiMatrix stock or AR-Acacia Technologies stock. Although our board of
directors has no present intention of doing so, the additional shares that would
be authorized for issuance if the recapitalization and merger is implemented
could be issued in one or more transactions that would make a takeover of Acacia
Research more difficult and, therefore, less likely, even though a takeover
might be financially beneficial to Acacia Research and our stockholders. We have
no knowledge of any person or entity that intends to seek a controlling interest
in Acacia Research or to make a takeover proposal.
We may issue the authorized but unissued shares of AR-CombiMatrix stock and
AR-Acacia Technologies stock for any proper corporate purpose, which could
include any of the purposes set forth above. We will not solicit the approval of
our stockholders for the issuance of additional authorized shares of
AR-CombiMatrix stock or AR-Acacia Technologies stock unless our board of
directors believes that approval is advisable or is required by stock exchange
regulations or Delaware law.
DIVIDENDS
Dividends on the AR-CombiMatrix stock and dividends on the AR-Acacia
Technologies stock will be limited to an amount not greater than the Available
Dividend Amount (as defined in the restated certificate of incorporation) for
the relevant group. The Available Dividend Amount under our restated certificate
of incorporation is essentially the same as legally available funds under
Delaware law, both of which consist of either the surplus (market value of
assets less liabilities and par value) or, if there is no surplus, the net
profits for the fiscal year in which the dividend is declared and/or the
preceding fiscal year.
In addition, Delaware law limits the amount of distributions on capital
stock to legally available funds as defined under Delaware law, which are
determined on the basis of our entire company, and not only the respective
groups. As a result, the amount of legally available funds will reflect the
amount of any net losses of each group, any distributions on AR-CombiMatrix
stock, AR-Acacia Technologies stock or any preferred stock and any repurchases
of AR-CombiMatrix stock, AR-Acacia Technologies stock or certain preferred
stock. Dividend payments on the AR-CombiMatrix stock and on the AR-Acacia
Technologies stock could be precluded because legally available funds are not
available under Delaware law, even though the Available Dividend Amount test for
the particular relevant group was met. We cannot assure you that there will be
an Available Dividend Amount for either group.
Subject to the prior payment of dividends on any outstanding shares of
preferred stock and the limitations described above, our board of directors will
be able, in its sole discretion, to declare and pay dividends exclusively on the
AR-CombiMatrix stock, exclusively on the AR-Acacia Technologies stock or on
both, in equal or unequal amounts. In making its dividend decisions, our board
of directors will not be required to take into account the
-79-
relative Available Dividend Amounts for the two groups, the amount of prior
dividends declared on either class, the respective voting or liquidation rights
of either class or any other factor.
VOTING RIGHTS
Currently, holders of our existing common stock have one vote per share on
all matters submitted to stockholders.
Under our proposed restated certificate of incorporation the entire voting
power of the stockholders of Acacia Research will be vested in the holders of
common stock, who will be entitled to vote on any matter on which the holders of
our stock are, by law or by the provisions of the restated certificate of
incorporation, entitled to vote, except as otherwise provided by law, by the
terms of any outstanding preferred stock or by any provision of the new
certificate of incorporation restricting the power to vote on a specified matter
to other stockholders.
Holders of common stock will vote as a single class on each matter on which
holders of common stock are generally entitled to vote.
On all matters as to which both classes of common stock will vote together
as a single class:
o each share of AR-CombiMatrix stock will have one vote; and
o each share of AR-Acacia Technologies stock will have a number of votes
equal to the quotient of the average market value of a share of
AR-Acacia Technologies stock over the 20-trading day period ending on
the 10th trading day prior to the record date for determining the
holders of common stock entitled to vote, divided by the average
market value of a share of AR-CombiMatrix stock over the same period.
Accordingly, the relative per share voting rights of the AR-CombiMatrix
stock and the AR-Acacia Technologies stock will fluctuate depending on changes
in the relative market values of shares of such classes of common stock. The
purpose of the floating voting power is to link voting power to relative
economic interests in Acacia Research.
EXAMPLES OF THE CALCULATION OF THE NUMBER OF VOTES EACH SHARE OF AR-ACACIA
TECHNOLOGIES STOCK WOULD BE ENTITLED ON ALL MATTERS ON WHICH HOLDERS OF
AR-COMBIMATRIX STOCK AND AR-ACACIA TECHNOLOGIES STOCK VOTE AS A SINGLE CLASS
EXAMPLE #1: If the average market values for the 20-trading day valuation
period were $4 for the AR-Acacia Technologies stock and $6 for the
AR-CombiMatrix stock, each share of AR-CombiMatrix stock would have one vote and
each share of AR-Acacia Technologies stock would have 0.67 votes based on the
following calculation:
$4
-- = 0.67 votes
$6
Based on the assumptions in this example, and assuming 20 million shares of
AR-CombiMatrix stock and 20 million shares of AR-Acacia Technologies stock were
outstanding, the shares of AR-CombiMatrix stock would represent approximately
60% of our total voting power and the shares of AR-Acacia Technologies stock
would represent approximately 40% of our total voting power.
-80-
EXAMPLE #2: If the average market values for the 20-trading day valuation
period were $5 for the AR-Acacia Technologies stock and $5 for the
AR-CombiMatrix stock, each share of AR-CombiMatrix stock would have one vote and
each share of AR-Acacia Technologies stock would have one (1) vote based on the
following calculation:
$5
-- = 1.0 vote
$5
Based on the assumptions in this example, and assuming 20 million shares of
AR-CombiMatrix stock and 20 million shares of AR-Acacia Technologies stock were
outstanding, the shares of AR-CombiMatrix stock would represent approximately
50% of our total voting power and the shares of AR-Acacia Technologies stock
would represent approximately 50% of our total voting power.
EXAMPLE #3: If the average market values for the 20-trading day valuation
period were $6 for the AR-Acacia Technologies stock and $4 for the
AR-CombiMatrix stock, each share of AR-CombiMatrix stock would have one vote and
each share of AR-Acacia Technologies stock would have 1.50 votes based on the
following calculation:
$6
-- = 1.50 votes
$4
Based on the assumptions in this example, and assuming 20 million shares of
AR-CombiMatrix stock and 20 million shares of AR-Acacia Technologies stock were
outstanding, the shares of AR-CombiMatrix stock would represent approximately
40% of our total voting power and the shares of AR-Acacia Technologies stock
would represent approximately 60% of our total voting power.
These examples, each of which is based on the assumption that the total
number of issued and outstanding shares of each class is 20,000,000, are
summarized in the table below:
ASSUMED RELATIVE
SHARE PRICE VOTING RIGHTS TOTAL VOTES VOTING POWER
----------- ---------------- ----------- ------------
EXAMPLE #1:
AR-CombiMatrix $6 1.0 vote/share 20,000,000 60%
AR-Acacia Technologies $4 0.67 votes/share 13,333,333 40%
EXAMPLE #2:
AR-CombiMatrix $5 1.0 vote/share 20,000,000 50%
AR-Acacia Technologies $5 1.0 vote/share 20,000,000 50%
EXAMPLE #3:
AR-CombiMatrix $4 1.0 vote/share 20,000,000 40%
AR-Acacia Technologies $6 1.50 votes/share 30,000,000 60%
IN THESE EXAMPLES WE HAVE PROVIDED A BETTER UNDERSTANDING OF THE MECHANICS
SURROUNDING THE CALCULATION OF VOTING POWER. IT SHOULD NOT BE ASSUMED THAT THE
EXAMPLES USED ARE IN ANY WAY INDICATIVE OF THE RESPECTIVE COMMON STOCK TRADING
PRICES FOLLOWING THE MERGER AND RECAPITALIZATION.
We will set forth the number of outstanding shares of AR-CombiMatrix stock
and AR-Acacia Technologies stock in our Annual Reports on Form 10-K and our
Quarterly Reports on Form 10-Q filed under the Securities Exchange Act of 1934.
We will disclose in any proxy statement for a stockholders' meeting the number
of outstanding shares and per share voting rights of the AR-CombiMatrix stock
and the AR-Acacia Technologies stock.
-81-
If shares of only one class of common stock are outstanding, each share of
that class will have one vote. If either class of common stock is entitled to
vote as a separate class with respect to any matter, each share of that class
will, for purpose of such vote, have one vote on such matter.
Fluctuations in the relative voting rights of the AR-CombiMatrix stock and
the AR-Acacia Technologies stock could influence an investor interested in
acquiring and maintaining a fixed percentage of the voting power of Acacia
Research to acquire such percentage of both classes of common stock and would
limit the ability of investors in one class to acquire for the same
consideration relatively more or less votes per share than investors in the
other class.
The holders of AR-CombiMatrix stock and AR-Acacia Technologies stock will
not have any rights to vote separately as a class on any matter coming before
stockholders of Acacia Research, except for certain limited class voting rights
provided under Delaware law. In addition to the approval of the holders of a
majority of the voting power of all shares of common stock voting together as a
single class, the approval of a majority of the outstanding shares of the
AR-CombiMatrix stock or the AR-Acacia Technologies stock, voting as a separate
class, would be required under Delaware law to approve any amendment to the
restated certificate of incorporation that would change the par value of the
shares of the class or alter or change the powers, preferences or special rights
of the shares of such class so as to affect them adversely. As permitted by
Delaware law, the restated certificate of incorporation will provide that an
amendment to the restated certificate of incorporation that increases or
decreases the number of authorized shares of AR-CombiMatrix stock or AR-Acacia
Technologies stock will only require the approval of the holders of a majority
of the voting power of all shares of common stock, voting together as a single
class, and will not require the approval of the holders of the class of common
stock affected by such amendment, voting as a separate class.
CONVERSION AND REDEMPTION
Our existing certificate of incorporation currently does not provide for
either mandatory or optional conversion or redemption of our existing common
stock. The recapitalization proposal will permit the conversion or redemption of
the AR-CombiMatrix stock and the AR-Acacia Technologies stock as described
below.
MANDATORY DIVIDEND, REDEMPTION OR CONVERSION OF COMMON STOCK IF DISPOSITION
OF GROUP ASSETS OCCURS
If Acacia Research sells, transfers, assigns or otherwise disposes of, in
one transaction or a series of related transactions, all or substantially all of
the properties and assets attributed to either group (a "disposition"), we are
required, except as described below, to:
o pay a dividend in cash and/or securities or other property to the
holders of shares of the class of common stock relating to the group
subject to the disposition having a fair value equal to the net
proceeds of the disposition; or
o (A) if the disposition involves all, but not merely substantially all,
of such properties and assets, redeem all outstanding shares of common
stock relating to that group in exchange for cash and/or securities or
other property having a fair value equal to the net proceeds of the
disposition; or (B) if the disposition involves substantially all, but
not all, of such properties and assets, redeem that number of whole
shares of the class of common stock relating to that group as have in
the aggregate an average market value, during the period of ten
consecutive trading days beginning on the 26th trading day immediately
succeeding the consummation date, closest to the net proceeds of the
disposition; and the redemption price will be cash and/or securities
or other property having a fair value equal to such net proceeds; or
o convert each outstanding share of such class of common stock into a
number of shares of common stock relating to the other group equal to
110% of the ratio of the average market value of one share of common
stock relating to the group subject to the disposition to the average
market value of one share of common stock relating to the other group
during the 10-trading day period beginning on the 26th trading day
following the disposition date.
-82-
The purpose of this provision is to provide holders of each class of stock
with an economic interest in the proceeds of the disposition of the assets of
the respective group.
Stockholder approval is typically required for the sale of all or
substantially all of a company's assets. However, we may dispose of all or
substantially all of the assets attributed to either group without stockholder
approval provided those assets do not constitute all or substantially all of the
assets of Acacia Research as a whole.
We may only pay a dividend or redeem shares of common stock as set forth
above if we have legally available funds under Delaware law and the amount to be
paid to holders is less than or equal to the Available Dividend Amount for the
group. We are required to pay such dividend or complete such redemption or
conversion on or prior to the 95th trading day following the disposition.
For purposes of determining whether a disposition has occurred,
"substantially all of the properties and assets" attributed to either group
means a portion of such properties and assets:
o that represents at least 80% of the then fair value of the properties
and assets attributed to that group; or
o from which were derived at least 80% of the aggregate revenues of that
group for the immediately preceding twelve fiscal quarterly periods.
The "net proceeds" of a disposition means an amount equal to what remains
of the gross proceeds of the disposition after any payment of, or reasonable
provision is made as determined by our board of directors for:
o any taxes payable by us, or which would have been payable but for the
utilization of tax benefits attributable to the group not subject to
the disposition, in respect of the disposition or in respect of any
resulting dividend or redemption;
o any transaction costs, including, without limitation, any legal,
investment banking and accounting fees and expenses; and
o any liabilities of or attributed to the group subject to the
disposition, including, without limitation, any liabilities for
deferred taxes, any indemnity or guarantee obligations incurred in
connection with the disposition or otherwise, any liabilities for
future purchase price adjustments and any preferential amounts plus
any accumulated and unpaid dividends in respect of the preferred stock
attributed to that group.
We may elect to pay the dividend or redemption price in connection with a
disposition either in the same form as the proceeds of the disposition were
received or in any other combination of cash, securities or other property that
our board of directors or, in the case of securities that have not been publicly
traded for a period of at least 15 months, an independent investment banking
firm, determines will have an aggregate market value of not less than the fair
value of the net proceeds.
-83-
EXAMPLE OF THE PROVISIONS REQUIRING A MANDATORY DIVIDEND, REDEMPTION OR
CONVERSION IF A DISPOSITION OCCURS
If (1) 20 million shares of AR-CombiMatrix stock and 20 million shares of
AR-Acacia Technologies stock were outstanding, (2) the net proceeds of the
disposition of substantially all, but not all, of the assets of the Acacia
Technologies group equals $80 million, (3) the average market value of the
AR-Acacia Technologies stock during the 10-trading day valuation period was $4
per share and (4) the average market value of the AR-CombiMatrix stock during
the same valuation period was $8 per share, then we could do any of the
following:
(1) pay a dividend to the holders of shares of AR-Acacia Technologies
stock equal to:
Net Proceeds = Amount per share
-------------------------------------------
Number of Outstanding Shares of
AR-Acacia Technologies stock
$80 million = $4 per share
-------------------------------------------
20 million shares
(2) redeem for $4 per share a number of shares of AR-Acacia Technologies
stock equal to:
Net Proceeds
-------------------------------------------
Average Market Value of AR-Acacia
Technologies stock = Number of shares
$80 million
-------------------------------------------
$4 per share = 20,000,000 shares
(3) convert each outstanding share of AR-Acacia Technologies stock into a
number of shares of AR-CombiMatrix stock equal to:
Average Market Value of AR-Acacia
Technologies stock = Number of Shares
---------------------------------
1.1 X Average Market Value of AR-
CombiMatrix stock
$4 per share = 0.55 shares
---------------------------------
1.1 X $8 per share
IN THESE EXAMPLES WE HAVE PROVIDED A BETTER UNDERSTANDING OF THE MECHANICS
SURROUNDING THE CALCULATION OF VOTING POWER. IT SHOULD NOT BE ASSUMED THAT THE
EXAMPLES USED ARE IN ANY WAY INDICATIVE OF THE RESPECTIVE COMMON STOCK TRADING
PRICES FOLLOWING THE MERGER AND RECAPITALIZATION.
-84-
EXCEPTIONS TO THE DIVIDEND, REDEMPTION OR CONVERSION REQUIREMENT IF A
DISPOSITION OCCURS
We are not required to take any of the above actions for any disposition of
all or substantially all of the properties and assets attributed to either group
in a transaction or series of related transactions that results in our receiving
for such properties and assets primarily equity securities of any entity that:
(1) acquires such properties or assets, succeeds to the business conducted
with such properties or assets, or controls such acquirer or
successor; and
(2) engages primarily or proposes to engage primarily in one or more
businesses similar or complementary to the businesses conducted by
that group prior to the disposition, as determined by our board of
directors.
The purpose of the exception is to enable us technically to "dispose" of
properties or assets of a group to other entities engaging or proposing to
engage in businesses similar or complementary to those of that group without
requiring a dividend on, or a conversion or redemption of, the class of common
stock of that group, so long as we hold an equity interest in that entity. A
joint venture in which we own a direct or indirect equity interest is an example
of such an acquirer. We are not required to control that entity, whether by
ownership or contract provisions.
We are also not required to effect a dividend, redemption or conversion if
the disposition is:
o of all or substantially all of our properties and assets in one
transaction or a series of related transactions in connection with our
dissolution, liquidation or winding up and the distribution of our
assets to stockholders;
o on a pro rata basis, such as in a spin-off, to the holders of all
outstanding shares of the class of common stock relating to the group
subject to the disposition; or
o made to any person or entity controlled by us, as determined by our
board of directors.
NOTICES IF DISPOSITION OF GROUP ASSETS OCCURS
Not later than the 20th trading day after the consummation of a
disposition, we will announce publicly by press release:
o the estimated net proceeds of the disposition;
o the number of shares outstanding of the class of common stock relating
to the group subject to the disposition; and
o the number of shares of such class of common stock into or for which
convertible securities are then convertible, exchangeable or
exercisable and the conversion, exchange or exercise price thereof.
Not earlier than the 36th trading day and not later than the 40th trading
day after the consummation of the disposition, we will announce publicly by
press release whether we will pay a dividend or redeem shares of common stock
with the net proceeds of the disposition or convert the shares of common stock
of the group subject to the disposition into the other class of common stock.
We are required to cause to be mailed to each holder of shares of the class
of common stock relating to the group subject to the disposition the additional
notices and other information required by the restated certificate of
incorporation.
-85-
CONVERSION OF COMMON STOCK AT OPTION OF ACACIA RESEARCH AT ANY TIME
Our board of directors may at any time convert each share of AR-CombiMatrix
stock into a number of shares of AR-Acacia Technologies stock equal to 110% of
the ratio of the average market values of the AR-CombiMatrix stock to the
AR-Acacia Technologies stock over a 20-trading day period. Conversely, our board
of directors may also at any time convert each share of AR-Acacia Technologies
stock into a number of shares of AR-CombiMatrix stock equal to 110% of the ratio
of the average market values of the AR-Acacia Technologies stock to the
AR-CombiMatrix stock over a 20-trading day period. We will calculate the ratio
as of the fifth trading day prior to the date Acacia Research mails the
conversion notice to holders.
These provisions allow us the flexibility to recapitalize the two classes
of common stock into one class of common stock that would, after such
recapitalization, represent an equity interest in all of our businesses. The
optional conversion or redemption could be exercised at any future time if our
board of directors determines that, under the facts and circumstances then
existing, an equity structure consisting of two classes of common stock was no
longer in the best interests of all of its stockholders. Such exchange could be
exercised, however, at a time that is disadvantageous to the holders of one of
the classes of common stock.
Many factors could affect the market values of the AR-CombiMatrix stock or
the AR-Acacia Technologies stock, including our results of operations and those
of each of the groups, trading volume and general economic and market
conditions. Market values could also be affected by decisions by our board of
directors or our management that investors perceive to affect differently one
class of common stock compared to the other. These decisions could include
changes to our management and allocation policies, transfers of assets between
groups, allocations of corporate opportunities and financing resources between
the groups and changes in dividend policies.
REDEMPTION IN EXCHANGE FOR STOCK OF SUBSIDIARY
Our board of directors may redeem on a pro rata basis all of the
outstanding shares of AR-CombiMatrix stock or AR-Acacia Technologies stock for
shares of the common stock of one or more of our wholly-owned subsidiaries which
own all of the assets and liabilities attributed to the relevant group. We may
redeem shares of common stock for subsidiary stock only if we have legally
available funds under Delaware law.
These provisions are intended to give us increased flexibility with respect
to spinning-off the assets of one of the groups by transferring the assets of
that group to one or more wholly-owned subsidiaries and redeeming the shares of
common stock related to that group in exchange for stock of such subsidiary or
subsidiaries. As a result of any such redemption, holders of each class of
common stock would hold securities of separate legal entities operating in
distinct lines of business. Such a redemption could be authorized by our board
of directors at any time in the future if it determines that, under the facts
and circumstances then existing, an equity structure comprised of the
AR-CombiMatrix stock and the AR-Acacia Technologies stock is no longer in the
best interests of all of our stockholders as a whole.
SELECTION OF SHARES FOR REDEMPTION
If less than all of the outstanding shares of a class of common stock are
to be redeemed, we will redeem such shares proportionately from among the
holders of outstanding shares of such common stock or by such method as may be
determined by our board of directors to be equitable.
FRACTIONAL INTERESTS; TRANSFER TAXES
We will not be required to issue fractional shares of any capital stock or
any fractional securities to any holder of either class of common stock upon any
conversion, redemption, dividend or other distribution described above. If a
fraction is not issued to a holder, we will pay cash instead of such fraction.
We will pay all documentary, stamp or similar issue or transfer taxes that
may be payable in respect of the issue or delivery of any shares of capital
stock and/or other securities on conversion or redemption of shares.
-86-
LIQUIDATION
Currently, in the event of our liquidation, dissolution or termination,
after payment, or provision for payment, of its debts and other liabilities and
the payment of full preferential amounts to which the holders of any preferred
stock are entitled, holders of existing common stock are entitled to share
equally in the remaining net assets of Acacia Research.
Under the restated certificate of incorporation, in the event of our
dissolution, liquidation or winding up, after payment or provision for payment
of the debts and other liabilities and full preferential amounts to which
holders of any preferred stock are entitled, regardless of the group to which
such shares of preferred stock were attributed, the holders of AR-CombiMatrix
stock and AR-Acacia Technologies stock will be entitled to receive our assets
remaining for distribution to holders of common stock on a per share basis in
proportion to the liquidation units per share of such class. The purpose of this
provision is to provide for the distribution of assets upon a liquidation that
reflects the initial relative economic interests of the respective classes of
stock.
Each share of AR-CombiMatrix stock will have one liquidation unit. Each
share of AR-Acacia Technologies stock will have a number of liquidation units
equal to the quotient of the average market value of a share of AR-Acacia
Technologies stock over the 20-trading day period ending on the 40th trading day
after the effective date of the recapitalization, divided by the average market
value of a share of AR-CombiMatrix stock over the same period.
After the number of liquidation units to which each share of AR-Acacia
Technologies stock is entitled has been calculated in accordance with this
formula, that number will not be changed without the approval of holders of the
class of common stock adversely affected except as described below. As a result,
after the date of the calculation of the number of liquidation units to which
the AR-Acacia Technologies stock is entitled the liquidation rights of the
holders of the respective classes of common stock may not bear any relationship
to the relative market values or the relative voting rights of the two classes.
We consider that liquidation is a remote contingency and believe that, in
general, these liquidation provisions are immaterial to trading in the
AR-CombiMatrix stock and the AR-Acacia Technologies stock.
No holder of AR-CombiMatrix stock will have any special right to receive
specific assets of the CombiMatrix group and no holder of AR-Acacia Technologies
stock will have any special right to receive specific assets of the Acacia
Technologies group in the case of a dissolution, liquidation or winding up of
Acacia Research.
If we subdivide or combine the outstanding shares of either class of common
stock or declare a dividend or other distribution of shares of either class of
common stock to holders of such class of common stock, the number of liquidation
units of either class of common stock will be appropriately adjusted, as
determined by our board of directors, to avoid any dilution in the aggregate,
relative liquidation rights of any class of common stock.
Neither a merger nor consolidation of Acacia Research into or with any
other corporation, nor any sale, transfer or lease of all or any part of the
assets of Acacia Research, will, alone, be deemed a liquidation or winding up of
Acacia Research, or cause the dissolution of Acacia Research, for purposes of
these liquidation provisions.
DETERMINATIONS BY OUR BOARD OF DIRECTORS
Any determinations made in good faith by our board of directors under any
provision described under "Description of AR-CombiMatrix Stock and AR-Acacia
Technologies Stock," and any determinations with respect to any group or the
rights of holders of shares of either class of common stock, will be final and
binding on all of our stockholders, subject to the rights of stockholders under
applicable Delaware law and under the federal securities laws.
PREEMPTIVE RIGHTS
Neither the holders of AR-CombiMatrix stock nor the holders of AR-Acacia
Technologies stock will have any preemptive rights or any rights to convert
their shares into any other securities of Acacia Research.
-87-
ANTIDILUTION PROVISIONS
Pursuant to a September 30, 2002 settlement agreement with Nanogen, Inc.,
CombiMatrix Corporation agreed to issue to Nanogen 4,016,346 shares, or 17.5% of
its outstanding shares post-issuance, and agreed to issue additional shares of
CombiMatrix Corporation common stock or, following the merger and
recapitalization, AR-CombiMatrix stock, to Nanogen under specified
circumstances, for the purpose of maintaining Nanogen's 17.5% ownership interest
in the CombiMatrix Corporation common stock. Specifically, Nanogen shall receive
additional shares of CombiMatrix Corporation common stock or AR-CombiMatrix
stock:
o for a period of three years from the date of the settlement agreement,
in an amount equal to 17.5% of the number of shares of stock issued
upon exercise of currently outstanding options and warrants to
purchase CombiMatrix Corporation common stock or AR-CombiMatrix stock,
as applicable, as well as any additional options and/or warrants
granted prior to the date on which the stock is first publicly traded;
o for the period beginning on the date of the settlement agreement and
ending on the earlier of (i) the date on which the CombiMatrix
Corporation common stock or AR-CombiMatrix stock is first publicly
traded or (ii) the date which is 100 days after the date of the
settlement agreement, in an amount equal to 17.5% of the number of
additional shares issued of CombiMatrix Corporation common stock or
AR-CombiMatrix stock;
o for the period beginning on the date which is 100 days following the
date of the settlement agreement and ending on the earlier of (i) the
date on which the CombiMatrix Corporation common stock or
AR-CombiMatrix stock is first publicly traded or (ii) the date which
is 270 days after the date of the settlement agreement, in amount
equal to the 17.5% of the number of shares of CombiMatrix Corporation
common stock or AR-CombiMatrix common stock issued to any of
CombiMatrix Corporation's existing stockholders, directors, officers
or employees as of the date of the settlement agreement, or to
specified strategic partners of CombiMatrix Corporation.
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE RECAPITALIZATION
The following discussion is a summary of the material United States federal
income tax consequences of the proposed recapitalization. The discussion insofar
as it relates to you addresses only those of you who hold your Acacia Research
common stock, and will, after the recapitalization, hold your AR-Acacia
Technologies stock and AR-CombiMatrix stock, as capital assets. This summary
does not discuss all aspects of United States federal income taxation that may
be relevant to Acacia Research or our stockholders in light of their respective
particular tax circumstances, nor does it discuss any state, local, foreign or
non-income tax consequences. This discussion does not address the federal income
tax consequences that may be applicable to taxpayers subject to special
treatment under the Internal Revenue Code of 1986, as amended, which will be
referred to as the "Code" in the following discussion. For example, taxpayers
that may be subject to special treatment under the Code include:
o tax-exempt entities;
o partnerships, S corporations and other pass-through entities;
o mutual funds;
o small business investment companies;
o regulated investment companies;
o insurance companies and other financial institutions;
o dealers in securities;
-88-
o traders that mark to market;
o stockholders who hold their shares as part of a hedge, appreciated
financial position, straddle or conversion transaction;
o stockholders who acquired their shares through the exercise of options
or otherwise as compensation or through a tax-qualified retirement
plan; and
o individuals who are not citizens or residents of the United States,
foreign corporations and other foreign entities.
This discussion is based on the Code, Treasury Department regulations,
published positions of the Internal Revenue Service, which is referred to in the
following discussion as the "IRS," and court decisions now in effect, all of
which are subject to change. In particular, the United States Congress could
enact legislation or the Treasury Department could issue regulations or other
guidance, including, without limitation, regulations issued pursuant to its
broad authority under Section 337(d) of the Code, affecting the treatment of
stock with characteristics similar to the AR-Acacia Technologies stock and the
AR-CombiMatrix stock. Any such change, which may or may not be retroactive,
could alter the tax consequences discussed in this document.
PricewaterhouseCoopers LLP has provided an opinion to us, based on the law
in effect as of the date of the filing of this proxy statement and prospectus,
regarding the material federal income tax consequences of the proposed
recapitalization. The opinion has been filed with the Securities and Exchange
Commission as an exhibit to the registration statement of which this proxy
statement and prospectus forms a part. The opinion relies on certain factual
background information which, in all material respects, is set forth in this
proxy statement and prospectus and on representations as to certain factual
matters and covenants, including those contained in the certificates furnished
by officers of Acacia Research to PricewaterhouseCoopers LLP, for purposes of
rendering its opinion. The opinion also relies on the following assumptions:
o The completion of the recapitalization in accordance with this proxy
statement and prospectus.
o At all times relevant to the recapitalization, including periods
following the recapitalization to the extent relevant, Acacia Research
(i) is duly formed and in good standing under all applicable laws and
regulations and (ii) will be treated as a corporation for United
States federal income tax purposes under relevant IRS regulations.
o All items described as debt or stock in connection with the
recapitalization have been, or will be, properly classified as debt or
stock, respectively, for United States federal income tax purposes.
o Except as otherwise discussed in this proxy statement and prospectus,
the stock of any entity described as "voting" stock will have the
right to vote for all corporate directors, on a per share basis which
is proportionate with all other shares of the entity's voting stock.
o Under applicable Delaware corporate law, the AR-CombiMatrix stock and
the AR-Acacia Technologies stock will both qualify as voting stock of
Acacia Research.
o The recapitalization (i) will be duly documented, (ii) will be
effected in a manner that complies with all applicable legal and
regulatory requirements, and (iii) will satisfy the arm's-length
standard of section 482 of the Code and the IRS regulations issued
thereunder because the terms of the recapitalization are assumed to be
comparable to the terms of similar transactions between arm's-length
parties. In addition, in the case of any transfer of stock in exchange
for cash or other stock , the value of the consideration received will
be approximately equal to the value of the shares surrendered.
o With respect to the shares of AR-Acacia Technologies stock and
AR-CombiMatrix stock received by the Acacia Research stockholders in
exchange for their Acacia Research common stock pursuant to the
recapitalization, the Acacia Research stockholders will become the
legal and beneficial owner of such
-89-
shares for purposes of all applicable laws and regulations at such
time as title to such shares vests with them pursuant to the
recapitalization.
If any of the background information, or any of these assumptions, factual
representations or covenants are inaccurate, the conclusions contained in the
opinion could be affected.
It is a condition to our obligation to consummate the recapitalization that
we receive an opinion of PricewaterhouseCoopers LLP, based upon reasonably
requested representation letters and dated as of the closing date of the
recapitalization, to the effect that the recapitalization will be treated as a
reorganization described in Section 368(a)(1)(E) of the Code under the law in
effect as of the closing date of the recapitalization, and we will not recognize
gain or loss by reason of the issuance of the AR-CombiMatrix stock and the
AR-Acacia Technologies stock, under the law in effect as of the closing date of
the recapitalization.
The material United States federal income tax consequences of the
recapitalization proposal, as set forth in the opinion filed as an exhibit to
this proxy statement and prospectus are as follows:
o The AR-CombiMatrix stock and the AR-Acacia Technologies stock will be
treated as stock of Acacia Research for federal income tax purposes.
o The exchange by you of your Acacia Research common stock for
AR-CombiMatrix stock and AR-Acacia Technologies stock will constitute
a recapitalization within the meaning of section 368(a)(1)(E) of the
Code. We will be "a party to a reorganization" within the meaning of
section 368(b) of the Code.
o No gain or loss will be recognized by you on the exchange of your
Acacia Research common stock solely for AR-CombiMatrix stock and
AR-Acacia Technologies stock.
o The payment of cash in lieu of fractional share interests of
AR-CombiMatrix stock will be treated as if the fractional shares were
distributed as part of the exchange to the exchange agent and then
were purchased by the exchange agent. These cash payments will be
treated as full payment for the stock as provided in section 1001 of
the Code. Accordingly, you will recognize taxable gain on the receipt
of such cash payment in an amount equal to the lesser of: (i) the
amount of the cash payment you receive, or (ii) the excess of (A) the
sum of the aggregate fair market values of the shares of
AR-CombiMatrix stock and AR-Acacia Technologies stock you receive in
the recapitalization, plus the amount of the cash payment received,
over (B) your basis in all of your shares of Acacia Research common
stock surrendered in the recapitalization.
o Your basis in the AR-CombiMatrix stock will equal a portion of your
basis in the Acacia Research common stock surrendered in the exchange
based on the relative fair market of the AR-CombiMatrix stock as
compared to the total consideration received by you pursuant to the
recapitalization. The holding period of the AR-CombiMatrix stock to be
received by you will include the holding period of the Acacia Research
common stock surrendered in exchange therefor, provided that you held
the Acacia Research common stock as a capital asset as of the date of
the exchange.
o Your basis in the AR-Acacia Technologies stock will equal a portion of
your basis in the Acacia Research common stock surrendered in the
exchange based on the relative fair market of the AR-Acacia
Technologies stock as compared to the total consideration received by
you pursuant to the recapitalization. The holding period of the
AR-Acacia Technologies stock to be received by you will include the
holding period of the Acacia Research common stock surrendered in
exchange therefor, provided that you held the Acacia Research common
stock as a capital asset as of the date of the exchange.
o No gain or loss will be recognized by us on the issuance of
AR-CombiMatrix stock and AR-Acacia Technologies stock in exchange for
the Acacia Research common stock.
-90-
NO IRS RULING
We have not sought any ruling from the IRS in connection with the proposed
recapitalization. The IRS has announced that it will not issue advance rulings
on the classification of instruments similar to the AR-Acacia Technologies stock
and the AR-CombiMatrix stock that have certain voting and liquidation rights in
an issuing corporation but whose dividend rights are determined by reference to
the earnings of a segregated portion of the issuing corporation's assets,
including assets held by a subsidiary of the issuing corporation. In addition,
there are no court decisions or other authorities that bear directly on the tax
effects of the issuance and classification of stock with the features of the
AR-Acacia Technologies stock and the AR-CombiMatrix stock. Further, the tax
opinion described above is not binding on the IRS or the courts. Thus, it is
possible that the IRS could successfully take the position that:
o the AR-Acacia Technologies stock and the AR-CombiMatrix stock is stock
of a separate corporation, not stock of Acacia Research;
o the receipt of AR-Acacia Technologies stock and AR-CombiMatrix stock
in exchange for your Acacia Research common stock pursuant to the
recapitalization is a taxable event to you, in which case you may be
required to recognize taxable dividend income up to an amount equal to
the lesser of: (i) the combined fair market value of the
AR-CombiMatrix stock and AR-Acacia Technologies stock received, or
(ii) Acacia Research's current and accumulated earnings and profits,
if any, and you would be required to recognize a taxable gain in an
amount equal to the excess of the combined fair market value of the
AR-CombiMatrix stock and AR-Acacia Technologies stock received (less
any dividend income you recognize) over your tax basis in your Acacia
Research shares; and/or
o we recognized a significant taxable gain by reason of the
recapitalization.
The preceding summary of the tax opinion and related matters does not
purport to be a complete analysis or discussion of all potential tax effects
relevant to the recapitalization. Thus, you are urged to consult your own tax
advisors as to the specific tax consequences to you of the recapitalization,
including tax return reporting requirements, the applicability and effect of
federal, state, local, foreign and other tax laws and the effect of any proposed
changes in the tax laws.
STOCK EXCHANGE LISTINGS
We have applied to list the AR-CombiMatrix stock and the AR-Acacia
Technologies stock on the NASDAQ National Market under the symbols "CBMX" and
"ACTG", respectively.
EXCHANGE PROCEDURES
Upon consummation of the recapitalization, your stock certificates for our
existing common stock will represent shares of AR-CombiMatrix stock and
AR-Acacia Technologies stock. Shortly after the recapitalization, holders of
Acacia Research common stock will receive instructions on how they may exchange
their existing stock certificates for new certificates representing their
AR-CombiMatrix stock and their AR-Acacia Technologies stock. Prior to the
receipt of the new certificates, stockholders will be able to trade their shares
of AR-CombiMatrix stock and AR-Acacia Technologies stock through book entry with
our transfer agent, U.S. Stock Transfer Corporation.
STOCK TRANSFER AGENT AND REGISTRAR
Our existing transfer agent, U.S. Stock Transfer Corporation, will act as
the registrar and transfer agent for both the AR-CombiMatrix stock and the
AR-Acacia Technologies stock.
FINANCIAL ADVISORS
William Blair & Company, L.L.C. is acting as our sole advisor with respect
to the structuring of the recapitalization proposal. William Blair & Company's
role as our advisor has consisted of analyzing the current
-91-
capitalization and organizational structure of our company and our subsidiaries,
meeting with us and helping us to develop a strategy on how best to improve the
capitalization and organizational structure, and responding to questions and
comments regarding the strategy raised by our management. We have agreed to pay
William Blair & Company a fee of $350,000.
We have also agreed to reimburse William Blair & Company for their
reasonable out-of-pocket expenses, including the fees and expenses of their
lawyers, and to indemnify them against liabilities under the Securities Act of
1933, as amended (the "Securities Act"), and certain other liabilities.
EFFECT ON EXISTING OPTIONS AND WARRANTS
If the recapitalization is implemented, each outstanding option and warrant
to acquire a share of Acacia Research common stock under our existing stock
option plans or warrants will be converted into separately exercisable options
or warrants, as the case may be, to acquire a fraction of a share of
AR-CombiMatrix stock and one share of AR-Acacia Technologies stock. The exact
conversion ratio for shares of AR-CombiMatrix stock will be equal to the
quotient obtained by dividing (a) the number of shares of CombiMatrix
Corporation common stock owned by Acacia Research immediately prior to the
effective time of the merger by (b) the total number of shares of Acacia
Research common stock issued and outstanding immediately prior to the effective
time. As of November 1, 2002, this fraction was 0.5582. The exercise price for
the resulting AR-Acacia Technologies stock options and warrants and
AR-CombiMatrix stock options and warrants will be calculated by multiplying the
exercise price under such existing stock option or warrant by a fraction, the
numerator of which is the result obtained by multiplying the opening price of
the applicable class of common stock underlying such option on the first date
such stocks are traded after the recapitalization times the applicable
conversion ratio and the denominator of which is the sum of such amounts for the
AR-CombiMatrix stock and the AR-Acacia Technologies stock.
We intend to file a registration statement on Form S-8 to register shares
of AR-Acacia Technologies stock subject to AR-Acacia Technologies stock options.
We expect the registration statement will be effective shortly after the
effective time of the recapitalization.
NO DISSENTERS' RIGHTS WITH RESPECT TO RECAPITALIZATION PROPOSAL
Under Delaware law, stockholders who dissent from the recapitalization
proposal will not have appraisal rights with respect to the recapitalization.
NO REGULATORY APPROVALS
No state or federal regulatory approvals are required for the
recapitalization.
-92-
THE MERGER PROPOSAL
DESCRIPTION OF THE MERGER
In the proposed merger, CombiMatrix Corporation will merge with and into a
specially-formed, wholly-owned subsidiary of Acacia Research. The merger
subsidiary will be the surviving corporation and will be renamed "CombiMatrix
Corporation." As a result of the merger, each outstanding share of CombiMatrix
Corporation common stock, other than those shares held by Acacia Research, will
be automatically converted into the right to receive one share of AR-CombiMatrix
stock. Shares of CombiMatrix Corporation common stock held by Acacia Research or
held by CombiMatrix Corporation as treasury stock will be canceled and will not
be converted into AR-CombiMatrix stock.
ISSUANCE OF SHARES; OWNERSHIP INTERESTS
In the merger, holders of CombiMatrix Corporation common stock other than
Acacia Research will receive one share of AR-CombiMatrix stock for each share of
CombiMatrix Corporation common stock owned by such stockholders immediately
prior to the merger. In the recapitalization, the holders of Acacia Research
common stock will receive the same number of shares of AR-CombiMatrix stock as
the number of shares of CombiMatrix Corporation common stock held by Acacia
Research immediately prior to the effective time of the merger.
As a result of these transactions, (a) holders of CombiMatrix Corporation
common stock other than Acacia Research will receive the same percentage of the
issued and outstanding shares of AR-CombiMatrix stock as such stockholders'
percentage ownership interest in the issued and outstanding shares of
CombiMatrix Corporation common stock immediately prior to the effective time of
the merger and (b) holders of Acacia Research common stock will receive, in the
aggregate, the same percentage of the issued and outstanding shares of
AR-CombiMatrix stock as Acacia Research's percentage ownership interest in the
issued and outstanding shares of CombiMatrix Corporation common stock
immediately prior to the effective time of the merger.
The specific percentage of the issued and outstanding shares of
AR-CombiMatrix stock that will be received in the merger by holders of Acacia
Research common stock and CombiMatrix Corporation common stock will depend on
the specific percentage of the issued and outstanding shares of CombiMatrix
Corporation common stock owned by Acacia Research and the holders of CombiMatrix
Corporation common stock immediately prior to the effective time of the merger.
As of November 1, 2002, Acacia Research owned 47.7% of the issued and
outstanding shares of CombiMatrix Corporation common stock and the stockholders
of CombiMatrix Corporation other than Acacia Research owned the remaining 52.3%.
Accordingly, if the merger were to have occurred on November 1, 2002, holders of
Acacia Research common stock would have received 47.7% of the issued and
outstanding shares of AR-CombiMatrix stock and holders of CombiMatrix
Corporation common stock other than Acacia Research would have received 52.3% of
the issued and outstanding shares of AR-CombiMatrix stock.
The relative percentage interests calculated on a fully diluted basis will
depend upon the number of options and warrants outstanding immediately prior to
the effective time of the merger. Based on the number of options and warrants
outstanding as of November 1, 2002, and not including shares to be issued to
Nanogen, Inc. pursuant to anti-dilution provisions of the settlement agreement
discussed in "Recent Developments" above, the holders of Acacia Research common
stock and options and warrants to purchase Acacia Research common stock would
receive 41.0% of the shares of AR-CombiMatrix stock calculated on a fully
diluted basis and the holders of CombiMatrix Corporation common stock, options
and warrants (other than Acacia Research) would receive 59.0% of the issued and
outstanding shares of AR-CombiMatrix stock calculated on a fully diluted basis.
The number of outstanding options and warrants of Acacia Research, and the
number of outstanding shares, options and warrants of CombiMatrix Corporation,
as of November 1, 2002, are set forth in the table below:
-93-
ACACIA RESEARCH AND COMBIMATRIX CORPORATION
OUTSTANDING SHARES, OPTIONS AND WARRANTS
AS OF NOVEMBER 1, 2002
-------------------------------------------
ACACIA RESEARCH
Issued and outstanding shares 19,640,808
----------
Vested options and warrants 4,288,319
Unvested options and warrants 1,399,089
----------
Outstanding options and warrants 5,687,408
==========
Total 25,328,216
HELD BY STOCKHOLDERS
HELD BY OTHER THAN
ACACIA RESEARCH ACACIA RESEARCH
--------------- --------------------
COMBIMATRIX CORPORATION
Issued and outstanding shares 10,963,277 12,005,274
---------- ----------
Vested options and warrants 0 2,264,658*
Unvested options and warrants 0 1,491,052*
---------- ----------
Outstanding options and warrants 0 3,755,710
========== ==========
Total 10,963,277 15,760,984*
* Does not include additional shares to be issued to Nanogen, Inc.
pursuant to anti-dilution provisions of the settlement agreement
discussed in "Recent Developments" above.
BACKGROUND OF AND REASONS FOR THE MERGER
Please see "The Recapitalization Proposal - Background of and Reasons for
the Recapitalization Proposal" for detailed information regarding the background
of and reasons for the merger.
RECOMMENDATION OF OUR BOARD OF DIRECTORS
OUR BOARD OF DIRECTORS HAS CAREFULLY CONSIDERED THE MERGER PROPOSAL AND
BELIEVES THAT THE MERGER IS IN THE BEST INTERESTS OF ACACIA RESEARCH AND OUR
STOCKHOLDERS. ACCORDINGLY, OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT
YOU APPROVE THE MERGER PROPOSAL.
-94-
TABLE REGARDING SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information regarding the beneficial
ownership of the CombiMatrix Corporation stock as of November 1, 2002. The table
sets forth information regarding (i) all persons known to us to beneficially own
five percent (5%) or more of the CombiMatrix Corporation's common stock, (ii)
each director of CombiMatrix Corporation, (iii) each executive officer of
CombiMatrix Corporation, and (iv) all current directors and executive officers
as a group.
COMBIMATRIX CORPORATION COMMON STOCK
--------------------------------------------
AMOUNT AND NATURE OF BENEFICIAL
BENEFICIAL OWNER(1) OWNERSHIP PERCENT(2)
----------------------------------------------- ------------------------------- ----------
Acacia Research Corporation (3) 10,963,277 47.7%
Nanogen, Inc. 4,016,346 17.5%
Amit Kumar, Ph.D. (4) 104,862 *
Donald D. Montgomery, Ph.D. (3)(5) 2,265,416 9.9%
Warren G. Hargis (6) 85,833 *
Scott Burell, CPA (7) 20,000 *
Jeffrey B. Oster, Ph.D. (8) 86,666 *
Edward M. Eadeh (9) 113,020 *
Brooke P. Anderson, Ph.D. (10) 67,861 *
Brett L. Undem (11) 63,194 *
Peter G. Edelman, Ph.D. (12) 10,313 *
Paul R. Ryan (13) 36,250 *
Robert L. Harris, II (14) 26,250 *
Rigdon Currie (15) 48,750 *
R. Bruce Stewart (16) 36,250 *
Thomas B. Akin (17) 26,250 *
All Directors and Executive Officers as a Group
(fourteen persons)(18) 2,990,915 12.6%
----------
* Less than one percent
(1) The address for Acacia Research Corporation, Mr. Ryan, Mr. Harris, Mr.
Stewart and Mr. Akin is the principal offices of Acacia Research, located
at 500 Newport Center Drive, Newport Beach, California 92660; the address
for Nanogen, Inc. is 10398 Pacific Center Court, San Diego, California,
92121; and the address for each other person is the principal offices of
CombiMatrix Corporation, located at 6500 Harbour Heights Parkway, Mukilteo,
Washington 98275.
(2) The percentage of shares beneficially owned is based on 22,968,551 shares
of CombiMatrix Corporation common stock outstanding as of November 1, 2002.
Beneficial ownership is determined under rules and regulations of the
Securities and Exchange Commission. Shares of CombiMatrix Corporation
common stock subject to options that are currently exercisable or
exercisable within 60 days after November 1, 2002 are deemed to be
outstanding and beneficially owned by the person holding such options for
the purpose of computing the number of shares beneficially owned and the
percentage ownership of such person, but are not deemed to be outstanding
for the purpose of computing the percentage ownership of any other person.
Except as indicated in the footnotes to this table, and subject to
applicable community property laws, we believe that such persons have sole
voting and investment power with respect to all shares of CombiMatrix
Corporation common stock shown as beneficially owned by them.
(3) On April 19, 1996, an Agreement of Shareholders was executed by and between
Acacia Research and Dr. Montgomery in connection with the issuance of
CombiMatrix Corporation's common stock. Acacia Research and Dr. Montgomery
may be deemed to be a "group" for purposes of 13(d)(3) of the Securities
Exchange Act of 1934, as amended. Acacia Research and Dr. Montgomery may
therefore be deemed to beneficially own those shares listed as beneficially
owned by the other. The Agreement of Shareholders provides for certain
rights and obligations regarding the nomination and election of directors.
The listed holders disclaim beneficial ownership of the shares except to
the extent that they have a pecuniary interest therein.
-95-
(4) Includes 104,862 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(5) Includes 15,416 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(6) Includes 78,333 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(7) Includes 20,000 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(8) Includes 86,666 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(9) Includes 113,020 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(10) Includes 33,061 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(11) Includes 52,083 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(12) Includes 10,313 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(13) Includes 36,250 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(14) Includes 26,250 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(15) Includes 48,750 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(16) Includes 36,250 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(17) Includes 26,250 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
(18) Includes 687,504 shares of CombiMatrix Corporation common stock issuable
upon exercise of options that are currently exercisable or will become
exercisable within 60 days of November 1, 2002.
ACCOUNTING TREATMENT
We will account for the acquisition of the equity interest of CombiMatrix
Corporation not held by us in the merger as a purchase of a business. Under this
method of accounting, the assets acquired and liabilities assumed of CombiMatrix
Corporation, including intangible assets, will be recorded at their fair market
values as of the date of their acquisition. The results of operations and cash
flows of CombiMatrix Corporation will be included in the financial statements of
the CombiMatrix group following the completion of the recapitalization and
merger.
Consistent with generally accepted accounting principles ("GAAP"), amounts
assigned to purchased in-process research and development -- i.e., CombiMatrix
Corporation research and development projects that are still in process at the
closing of the merger, but which, if unsuccessful, have no alternative future
use -- must be charged as expenses on the date that the merger closes. As a
result of the merger, based on estimates used in the unaudited proforma
financial information provided elsewhere herein, we expect to incur a write-off
related to in-process research and development totaling approximately $10.3
million. The charge related to in-process research and development will be
reflected in Acacia Research Corporation's consolidated financial statement when
the merger is consummated and will be allocated to the CombiMatrix group.
-96-
Results of operations of CombiMatrix Corporation, including the related
amortization of intangible assets and write-off of in-process research and
development associated with the merger, will be included in the results of
operations of the CombiMatrix group subsequent to the date on which the merger
is completed.
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
The following discussion is a summary of the material United States federal
income tax consequences of the proposed merger. This summary does not discuss
all aspects of United States federal income taxation that may be relevant to
Acacia Research or our stockholders in light of their respective particular tax
circumstances, nor does it discuss any state, local, foreign or non-income tax
consequences. This discussion does not address the federal income tax
consequences that may be applicable to taxpayers subject to special treatment
under the Internal Revenue Code of 1986, as amended, which will be referred to
as the "Code" in the following discussion. For example, taxpayers that may be
subject to special treatment under the Code include:
o tax-exempt entities;
o partnerships, S corporations and other pass-through entities;
o mutual funds;
o small business investment companies;
o regulated investment companies;
o insurance companies and other financial institutions;
o dealers in securities;
o traders that mark to market;
o stockholders who hold their shares as part of a hedge, appreciated
financial position, straddle or conversion transaction;
o stockholders who acquired their shares through the exercise of options
or otherwise as compensation or through a tax-qualified retirement
plan; and
o individuals who are not citizens or residents of the United States,
foreign corporations and other foreign entities.
This discussion is based on the Code, Treasury Department regulations,
published positions of the Internal Revenue Service, which is referred to in the
following discussion as the "IRS," and court decisions now in effect, all of
which are subject to change. In particular, the United States Congress could
enact legislation or the Treasury Department could issue regulations or other
guidance, including, without limitation, regulations issued pursuant to its
broad authority under Section 337(d) of the Code, affecting the treatment of
stock with characteristics similar to the AR-CombiMatrix stock. Any such change,
which may or may not be retroactive, could alter the tax consequences discussed
in this document.
PricewaterhouseCoopers LLP has provided an opinion to us, based on the law
in effect as of the date of the filing of this proxy statement and prospectus,
regarding the material federal income tax consequences of the proposed merger.
The opinion has been filed with the Securities and Exchange Commission as an
exhibit to the registration statement of which this proxy statement and
prospectus forms a part. The opinion relies on certain factual background
information, which in all material respects, is set forth in this proxy
statement and prospectus and on representations as to certain factual matters
and covenants, including those contained in the certificates furnished by
officers of Acacia Research and CombiMatrix Corporation to
PricewaterhouseCoopers LLP, for purposes of rendering its opinion. The opinion
also relies on the following assumptions:
-97-
o The completion of the merger in accordance with this proxy statement
and prospectus.
o At all times relevant to the merger, including periods following the
merger to the extent relevant, each of Acacia Research, CombiMatrix
Corporation and Combi Acquisition Corp. (i) is duly formed and in good
standing under all applicable laws and regulations and (ii) will be
treated as a corporation for United States federal income tax purposes
under relevant IRS regulations.
o All items described as debt or stock in connection with the merger
have been, or will be, properly classified as debt or stock,
respectively, for United States federal income tax purposes.
o Except as otherwise discussed in this proxy statement and prospectus,
the stock of any entity described as "voting" stock will have the
right to vote for all corporate directors, on a per share basis which
is proportionate with all other shares of the entity's voting stock.
o Under applicable Delaware corporate law, the AR-CombiMatrix stock will
qualify as voting stock of Acacia Research.
o Under applicable Delaware corporate law, Acacia Research will be the
sole stockholder of Combi Acquisition Corp., successor to CombiMatrix
Corporation, upon completion of the merger. As of that same time,
Acacia Research will be the sole stockholder (directly or indirectly)
of the following corporations: (i) CombiMatrix Corporation, which
along with Advanced Material Sciences, Inc., a majority-owned
subsidiary of CombiMatrix, will be the sole entities comprising the
CombiMatrix group, and (ii) Soundview Technologies, Inc. and Acacia
Media Technologies Corporation, which will collectively principally
comprise the Acacia Technologies group.
o The merger will qualify as a statutory merger under applicable
Delaware corporate law.
o The merger (i) will be duly documented, (ii) will be effected in a
manner that complies with all applicable legal and regulatory
requirements, and (iii) will satisfy the arm's-length standard of
section 482 of the Code and the IRS regulations issued thereunder
because the terms of the merger are assumed to be comparable to the
terms of similar transactions between arm's-length parties. In
addition, in the case of any transfer of stock in exchange for cash or
stock of the transferee entity, the value of the consideration
received will be approximately equal to the value of the shares
surrendered.
o With respect to each transfer of a transferred asset, the respective
transferee will become the legal and beneficial owner of the asset for
purposes of all applicable laws and regulations at such time as title
to the transferred asset vests with the transferee pursuant to the
merger.
If any of the background information or any of these assumptions, factual
representations or covenants are inaccurate, the conclusions contained in the
opinion could be affected.
The Acacia Research stockholders will not exchange any stock of Acacia
Research in the merger. Therefore, no gain or loss will be recognized by the
Acacia Research stockholders in the merger with respect to their shares of
Acacia Research common stock. However, pursuant to the terms of the
recapitalization, the Acacia Research stockholders will exchange their Acacia
Research common stock for shares of AR-CombiMatrix stock and AR-Acacia
Technologies stock. The material United States federal income tax consequences
of the recapitalization are described above under the caption "Material United
States Federal Income Tax Consequences of the Recapitalization."
The material federal income tax consequences of the merger, as set forth in
the opinion filed as an exhibit to this proxy statement and prospectus are as
follows:
o The AR-CombiMatrix stock will be treated as stock of Acacia Research
for federal income tax purposes.
-98-
o The transfer by operation of law pursuant to the merger of
substantially all of the assets of CombiMatrix Corporation to Combi
Acquisition Corp. in exchange for AR-CombiMatrix stock and the
assumption by Combi Acquisition Corp. of the liabilities of
CombiMatrix Corporation by operation of law pursuant to the merger
plus the liabilities to which the CombiMatrix Corporation assets may
be subject, will qualify as a reorganization within the meaning of
Sections 368(a)(1)(A) an 368(a)(2)(D) of the Code (which set forth
certain requirements for certain types of tax-free reorganizations).
For purposes of this paragraph, "substantially all" means at least 90
percent of the fair market value of the net assets and at least 70
percent of the fair market value of the gross assets of CombiMatrix
Corporation. Acacia Research, Combi Acquisition Corp., and CombiMatrix
Corporation will each be "a party to a reorganization" within the
meaning of section 368(b) of the Code.
o No gain or loss will be recognized to CombiMatrix Corporation on the
transfer of substantially all of its assets to Combi Acquisition Corp.
by operation of law pursuant to the merger in exchange for
AR-CombiMatrix stock, cash to pay dissenters, if any, and the
assumption by Combi Acquisition Corp. of the liabilities of
CombiMatrix Corporation by operation of law pursuant to the merger,
since the cash will be distributed to the dissenting stockholders of
CombiMatrix Corporation pursuant to the plan of reorganization.
o No gain or loss will be recognized by us or Combi Acquisition Corp. on
the transfer by operation of law pursuant to the merger of
substantially all of CombiMatrix Corporation's assets to Combi
Acquisition Corp. in exchange for AR-CombiMatrix stock, cash, if any,
and the assumption of the liabilities of CombiMatrix Corporation by
operation of law pursuant to the merger.
o Combi Acquisition Corp. will not recognize gain or loss when it
exchanges AR-CombiMatrix stock for substantially all the assets of
CombiMatrix Corporation by operation of law pursuant to the merger.
o The CombiMatrix Corporation stockholders will not recognize gain or
loss when they exchange their CombiMatrix Corporation common stock
solely for AR-CombiMatrix stock by operation of law pursuant to the
merger (including any fractional share interests to which they may be
entitled).
o The payment of cash to CombiMatrix Corporation stockholders in lieu of
fractional share interests of AR-CombiMatrix stock will be treated as
if the fractional shares were distributed as part of the exchange to
the exchange agent and then were purchased by the exchange agent.
These cash payments will be treated as full payment for the stock as
provided in Section 1001(a) of the Code. Accordingly, each CombiMatrix
Corporation stockholder will recognize taxable gain on the receipt of
these cash payments in an amount equal to the lesser of: (i) the
amount of the cash payment received by the stockholder, or (ii) the
excess of (A) the sum of the aggregate fair market value of the shares
of AR-CombiMatrix stock received by the stockholder in the merger,
plus the amount of the cash payment received, over (B) the
stockholder's basis in all of the stockholder's shares of CombiMatrix
Corporation common stock surrendered in the merger.
o The CombiMatrix Corporation stockholders' (other than Acacia) basis in
the AR-CombiMatrix stock (including any fractional share interests to
which they may be entitled) received pursuant to the merger will be
equal to the basis they had in their CombiMatrix Corporation common
stock.
o The holding period of the AR-CombiMatrix stock to be received by the
CombiMatrix Corporation stockholders pursuant to the merger (including
any fractional share interests to which they may be entitled) will
include the holding period of the CombiMatrix Corporation common stock
to be surrendered pursuant to the merger in exchange therefor,
provided the CombiMatrix Corporation common stock is held as a capital
asset in the hands of the CombiMatrix Corporation stockholders on the
date of the exchange.
o Combi Acquisition Corp.'s tax basis in the assets transferred to it by
operation of law pursuant to the merger will equal CombiMatrix
Corporation's basis in those assets. Combi Acquisition Corp.'s holding
period in the assets it receives pursuant to the merger will include
CombiMatrix Corporation's holding period in such assets.
-99-
o Our basis in the Combi Acquisition Corp. stock will be adjusted as if:
o we received the assets of CombiMatrix Corporation which were
transferred by operation of law to Combi Acquisition Corp. in the
merger (and we assumed any liabilities which Combi Acquisition
Corp. assumed or to which the CombiMatrix Corporation assets
received were subject) directly from CombiMatrix Corporation in a
transaction in which our basis in the assets of CombiMatrix
Corporation was determined under Section 362(b) of the Code
(which governs the determination of a corporation's tax basis in
property received in certain types of tax-free transactions); and
o we then transferred the CombiMatrix Corporation assets (and
liabilities which Combi Acquisition Corp. assumed by operation of
law in the merger or to which the CombiMatrix Corporation assets
acquired by Combi Acquisition Corp. were subject) to Combi
Acquisition Corp. in a transaction in which our basis in Combi
Acquisition Corp. stock was determined under Section 358 of the
Code (which governs the determination of a stockholder's tax
basis in stock received in certain types of tax-free
transactions). The purpose of this basis adjustment, which is
required under IRS regulations, is to reflect the basis of
CombiMatrix Corporation's assets in the basis of Acacia
Research's stock in Combi Acquisition Corp. immediately upon the
completion of the merger.
o NO IRS RULING
We have not sought any ruling from the IRS in connection with the proposed
merger. The IRS has announced that it will not issue advance rulings on the
classification of an instrument similar to the AR-CombiMatrix stock that has
certain voting and liquidation rights in an issuing corporation but whose
dividend rights are determined by reference to the earnings of a segregated
portion of the issuing corporation's assets, including assets held by a
subsidiary of the issuing corporation. In addition, there are no court decisions
or other authorities that bear directly on the tax effects of the issuance and
classification of stock with the features of the AR-CombiMatrix stock. Further,
the tax opinion described above is not binding on the IRS or the courts. Thus,
it is possible that the IRS could successfully take the position that:
o the AR-CombiMatrix stock is stock of a separate corporation, not stock
of Acacia Research;
o we recognized a significant taxable gain by reason of the merger or
the issuance of AR-CombiMatrix stock; and/or
o CombiMatrix Corporation is not includable in our consolidated United
States federal income tax return, and, among other things, any
dividends paid or deemed paid to us by CombiMatrix Corporation could
be taxable to us, subject to any applicable dividends received
deduction.
The preceding summary of the tax opinion and related matters does not
purport to be a complete analysis or discussion of all potential tax effects
relevant to the merger. Thus, you are urged to consult your own tax advisors as
to the specific tax consequences to you of the merger, including tax return
reporting requirements, the applicability and effect of federal, state, local,
foreign and other tax laws and the effect of any proposed changes in the tax
laws.
OTHER TAX MATTERS
It is a condition to our obligation to consummate the merger that we
receive an opinion of PricewaterhouseCoopers LLP, based upon reasonably
requested representation letters and dated as of the closing date, to the effect
that the merger will be treated as a reorganization described in Section 368(a)
of the Code under the law in effect as of the closing date of the merger, and we
will not recognize gain or loss by reason of the issuance of AR-CombiMatrix
stock, under the law in effect as of the closing date of the merger. In
addition, it is a condition to the obligation of CombiMatrix Corporation to
consummate the merger that CombiMatrix Corporation receive an opinion of
PricewaterhouseCoopers LLP, based upon reasonably requested representation
letters and dated as of the closing date, to the effect that the merger will be
treated as a reorganization described in Section 368(a) of the Code under the
law in effect as of the closing date of the merger. Neither we nor CombiMatrix
Corporation currently intend to waive the condition that we and CombiMatrix
Corporation receive the respective tax opinions described
-100-
above. In the unlikely event that the parties do decide to waive the condition,
however, we will recirculate this document to disclose the waiver of the
condition and all related material disclosures, including the risks to our
stockholders, if any, resulting from the waiver, and will resolicit proxies from
our stockholders.
APPRAISAL RIGHTS
Our stockholders will not have any dissenters' or appraisal rights under
Delaware law in connection with the merger. CombiMatrix Corporation
stockholders, however, who object to the merger will have dissenters' appraisal
rights.
RESTRICTIONS ON RESALE OF AR-COMBIMATRIX COMMON STOCK BY AFFILIATES OF
ACACIA RESEARCH AND COMBIMATRIX CORPORATION
The shares of AR-CombiMatrix stock to be received by the stockholders of
CombiMatrix Corporation in connection with the merger have been registered under
the Securities Act and, except as set forth in this paragraph, may be traded
without restriction. The shares of AR-CombiMatrix stock to be issued in
connection with the merger and received by persons who may be deemed to be
"affiliates" (as that term is defined in Rule 144 under the Securities Act) of
Acacia Research or CombiMatrix Corporation prior to the merger may be resold by
them only in transactions permitted by the resale provisions of Rule 145 under
the Securities Act or as otherwise permitted under the Securities Act.
FEDERAL SECURITIES LAWS CONSEQUENCES; STOCK TRANSFER RESTRICTION AGREEMENTS
This document does not cover any resales of the shares of AR-CombiMatrix
stock to be received by CombiMatrix Corporation's stockholders in the merger,
and no person is authorized to make any use of this document in connection with
any such resale.
All shares of AR-CombiMatrix stock that CombiMatrix Corporation
stockholders receive in the merger will be freely transferable, with the
exception of (a) the shares of AR-CombiMatrix stock received by persons who are
deemed to be "affiliates" of CombiMatrix under the Securities Act and the rules
and regulations promulgated under that Act, at the time of the CombiMatrix
Corporation special meeting, and (b) shares subject to any "market standoff
agreement" as described below. Persons who are deemed "affiliates" may re-sell
their shares of AR-CombiMatrix stock only in transactions permitted by Rule 145
under the Securities Act or as otherwise permitted under that Act. Persons who
may be deemed to be affiliates of CombiMatrix Corporation for such purposes
generally include individuals or entities that control, are controlled by or are
under common control with CombiMatrix Corporation and may include some officers,
directors and principal stockholders of CombiMatrix Corporation. The merger
agreement provides that, subject to applicable law, CombiMatrix Corporation
share certificates surrendered for exchange pursuant to the merger agreement by
any person constituting an "affiliate" of CombiMatrix Corporation will not be
exchanged until Acacia Research receives an executed letter agreement to the
effect that those persons will not offer or sell or otherwise dispose of any
shares of AR-CombiMatrix stock issued to them in the merger in violation of the
Securities Act.
One of the conditions to our obligation to consummate the merger is that
each director, officer and employee of CombiMatrix Corporation who is also a
stockholder of CombiMatrix Corporation shall have executed a "market standoff
agreement" pursuant to which each such person shall have agreed not to sell any
shares of AR-CombiMatrix stock received in the merger for a period of six (6)
months after the effective time of the merger. Accordingly, all such directors,
officers and employees who enter into such market standoff agreements will not
be permitted to sell any of the shares of AR-CombiMatrix stock that they receive
in the merger during the six (6) month period following the merger.
-101-
PRINCIPAL PROVISIONS OF THE MERGER AGREEMENT
The following is a summary of significant provisions of the merger
agreement. For a more complete understanding of the merger agreement, you should
read the agreement. The merger agreement is attached as ANNEX A and is
incorporated into this proxy statement/prospectus by reference.
GENERAL DESCRIPTION OF THE MERGER
In the proposed merger, CombiMatrix Corporation will merge into a
specially-formed, wholly-owned subsidiary of Acacia Research. The merger
subsidiary will be the surviving corporation and will be renamed "CombiMatrix
Corporation."
Immediately prior to the consummation of the merger, we will file our
restated certificate of incorporation with the Delaware Secretary of State.
Among other things, our restated certificate of incorporation will authorize the
AR-CombiMatrix stock and the AR-Acacia Technologies stock and will split our
outstanding common stock into shares of these two classes of common stock.
As a result of the merger, each outstanding share of CombiMatrix
Corporation common stock, other than those shares held by Acacia Research, will
be automatically converted into the right to receive one share of AR-CombiMatrix
stock. Shares of CombiMatrix Corporation common stock held by Acacia Research or
held by CombiMatrix Corporation as treasury stock will be canceled and will not
be converted into AR-CombiMatrix stock.
EFFECTIVE TIME
We expect to close the merger shortly after the special meeting of
stockholders. The merger will be effective upon the filing of appropriate
documents with the Delaware Secretary of State, or at such later time as we may
specify in those documents. We plan to file those documents soon after the
special stockholders meeting.
CONVERSION OF SHARES AND CONSIDERATION TO BE RECEIVED IN THE MERGER
At the effective time of the merger:
o each issued and outstanding share of CombiMatrix Corporation common
stock, other than shares owned by Acacia Research and our affiliates,
will be converted into the right to receive one share of
AR-CombiMatrix stock; and
o each share of CombiMatrix Corporation common stock owned by us and our
affiliates will be canceled.
EXCHANGE OF COMBIMATRIX CORPORATION STOCK CERTIFICATES
Promptly after the effective time of the merger, we or the exchange agent
will mail the following materials to each person who holds shares of CombiMatrix
Corporation common stock as of the effective time:
o a letter of transmittal to be used by the holder to surrender its
shares and send them to the exchange agent to be exchanged for the
merger consideration; and
o instructions explaining to the holder what to do to effect the
exchange of its shares of CombiMatrix Corporation common stock for the
merger consideration.
We will honor a request from a person surrendering a CombiMatrix
Corporation common stock certificate that the AR-CombiMatrix stock being given
in exchange be issued to a person other than the registered holder named on the
exchange agent's books so long as the requesting person (which is approximately
the same percentage interest as Acacia Research's current stock ownership
interest in CombiMatrix Corporation):
-102-
o submits all documents necessary to evidence and effect the transfer to
the new holder; and
o pays any transfer or other taxes resulting from issuing shares of
AR-CombiMatrix stock to a person other than the registered holder of
the certificate, unless the requesting person satisfactorily
establishes to Acacia Research that any tax has been paid or is
inapplicable.
Holders of CombiMatrix Corporation common stock exchanged for
AR-CombiMatrix stock in the merger will be entitled to receive dividends and
other distributions on AR-CombiMatrix stock (without interest) that are declared
or made with a record date after the effective time. However, dividends or other
distributions will not be paid to any former holder of CombiMatrix Corporation
common stock until that holder surrenders its shares of CombiMatrix Corporation
common stock to the exchange agent.
TREATMENT OF COMBIMATRIX CORPORATION STOCK OPTIONS
At the effective time of the merger, each outstanding option to purchase
shares of CombiMatrix Corporation common stock under CombiMatrix Corporation's
1995 Stock Option Plan, 1998 Stock Option Plan and 2000 Stock Awards Plan,
whether or not exercisable, will be assumed by us. Each assumed option will
continue to be governed by the same terms and conditions that governed it under
the applicable CombiMatrix Corporation plan immediately before the effective
time of the merger except that the option will be exercisable for shares of
AR-CombiMatrix stock rather than CombiMatrix Corporation common stock. The
number of shares of AR-CombiMatrix stock issuable upon exercise of the assumed
option, as well as the exercise price, will be the same as the number of shares
of CombiMatrix Corporation common stock issuable and exercise price prior to the
merger.
We have agreed to file a registration statement on Form S-8 to register the
shares of AR-CombiMatrix stock subject to AR-CombiMatrix stock options. We
expect that the registration statement will be effective shortly after the
effective time of the merger.
On November 1, 2002, options to purchase 3,717,660 shares of CombiMatrix
Corporation common stock were outstanding and the weighted average exercise
price of those options was $9.45 per share.
TREATMENT OF COMBIMATRIX CORPORATION WARRANTS
At the effective time of the merger, each outstanding warrant to purchase
shares of CombiMatrix Corporation common stock will be assumed by us. Each
assumed warrant will continue to be governed by the same terms and conditions
that governed it immediately before the effective time of the merger except that
the warrant will be exercisable for shares of AR-CombiMatrix stock rather than
CombiMatrix Corporation common stock. The number of shares of AR-CombiMatrix
stock issuable upon exercise of the assumed warrant, as well as the exercise
price, will be the same as the number of shares of CombiMatrix Corporation
common stock issuable and exercise price prior to the merger.
TREATMENT OF COMBIMATRIX CORPORATION BENEFITS AND OTHER EMPLOYEE MATTERS
Except as described above with respect to the existing stock option plans
and the proposed new stock incentive plans, there will not be any change in
employee benefit programs or employee benefits as a result of the merger.
Immediately after the merger employees will have the same credit, under employee
benefit programs for time served in terms of eligibility, vesting, benefit
accrual and determination of the level of benefits.
REPRESENTATIONS AND WARRANTIES
The merger agreement contains representations and warranties by us, Combi
Acquisition Corp., our wholly-owned subsidiary which CombiMatrix Corporation
will be merged with and into in the merger, and CombiMatrix Corporation which we
believe are usual and customary in transactions such as the merger.
-103-
PRINCIPAL COVENANTS
COMBIMATRIX CORPORATION'S CONDUCT OF BUSINESS PENDING THE MERGER
Pursuant to the merger agreement, CombiMatrix Corporation has agreed that,
until the effective time of the merger, CombiMatrix Corporation will carry on
its business in substantially the same manner as conducted prior to the date of
the merger agreement.
COVENANTS OF ACACIA RESEARCH
Pursuant to the merger agreement, we have agreed that, after the effective
time of the merger, we will:
o assume the CombiMatrix Corporation common stock options, and file a
registration statement on Form S-8 with the Securities and Exchange
Commission to register the shares issuable under those assumed
options; and
o indemnify each officer and director of CombiMatrix Corporation as of
the effective date and obtain a policy of directors' and officers'
liability insurance for a three year period after the effective date.
There are exceptions to these obligations in the merger agreement.
CombiMatrix Corporation may also agree to further exceptions in writing.
OTHER COVENANTS
The merger agreement contains additional covenants which we believe are
usual and customary in transactions such as the merger, including a general
covenant requiring each party to use its reasonable best efforts to effect the
consummation of the merger.
CONDITIONS TO THE CONSUMMATION OF THE MERGER
CONDITIONS TO EACH PARTY'S OBLIGATIONS
Each party's obligation to consummate the merger is subject to the
satisfaction of the following conditions:
o No court or other governmental entity of competent jurisdiction shall
have entered, enacted, issued or enforced any judgment, order,
statute, law or regulation that would prevent the completion of the
merger, nor shall any suit, action or proceeding be pending that would
prevent completion of the merger;
o Each party's stockholders shall have approved and adopted the merger
agreement, and our stockholders shall have approved the
recapitalization proposal;
o The registration statement on Form S-4 filed with the Securities and
Exchange Commission has been declared effective, and no stop order has
been issued;
o The shares of AR-CombiMatrix stock to be issued in the merger to the
stockholders of CombiMatrix Corporation shall have been approved for
listing on the NASDAQ National Market; and
o Each party shall have received the opinion of PricewaterhouseCoopers
LLP, to the effect that the merger will be treated for federal income
tax purposes as a reorganization described in Section 368(a) of the
federal income tax code, and neither we nor Combi Acquisition Corp.
will recognize gain or loss by reason of the issuance of the
AR-CombiMatrix stock.
-104-
ADDITIONAL CONDITIONS TO OUR OBLIGATIONS
Our obligation to consummate the merger is subject to the satisfaction of
the following additional conditions, which may be waived in writing exclusively
by Acacia Research:
o The representations and warranties of CombiMatrix Corporation in the
merger agreement shall be true and correct in all respects on and as
of the effective time of the merger, and CombiMatrix Corporation shall
have performed and complied in all material respects with all of its
covenants and obligations under the merger agreement;
o No material adverse effect with respect to CombiMatrix Corporation
shall have occurred since the date of the merger agreement, and no
events or circumstances shall have occurred since then that would have
a material adverse effect on CombiMatrix Corporation;
o Any and all consents, waivers, assignments and approvals of
CombiMatrix Corporation shall have been obtained;
o We shall have been provided with a certificate executed on behalf of
CombiMatrix Corporation by its president and chief executive officer,
its chief operating officer or its chief financial officer to the
effect that, as of the effective time of the merger, certain
conditions have been met;
o There shall be no more than one percent of the outstanding shares of
CombiMatrix Corporation common stock dissenting to the merger
agreement and seeking appraisal rights;
o There shall not have been a "change of law" that, in our good faith
judgment after consultation with its external advisors, could, if
adopted, be reasonably likely to have a material adverse tax
consequence to CombiMatrix Corporation, its stockholders, us or our
stockholders arising from the transactions contemplated by the merger
agreement;
o Each director, officer and employee of CombiMatrix Corporation who is
also a stockholder of CombiMatrix Corporation common stock shall have
executed a "market standoff agreement" pursuant to which such person
shall agree not to sell any AR-CombiMatrix stock which they receive in
the merger for a period of six (6) months after the effective time;
and
o We shall be satisfied, in our reasonable discretion, that the merger
will not be deemed a "change of control" under the CombiMatrix
Corporation Executive Severance Plan.
ADDITIONAL CONDITIONS TO OBLIGATIONS OF COMBIMATRIX CORPORATION
The obligation of CombiMatrix Corporation to effect the merger is subject
to the satisfaction of each of the following additional conditions, any of which
may be waived in writing exclusively by CombiMatrix Corporation:
o Our representations and warranties in the merger agreement shall be
true and correct in all respects on and as of the effective time of
the merger, and we shall have performed and complied in all material
respects with all of our covenants and obligations under the merger
agreement;
o No material adverse effect with respect to our existing business shall
have occurred since the date of the merger agreement and no events or
circumstances shall have occurred since such date that would have a
material adverse effect on our existing business;
o There shall not have been a "change of law" that, in the good faith
judgment of CombiMatrix Corporation after consultation with its
external advisors, could, if adopted, be reasonably likely to have a
material adverse tax consequence to CombiMatrix Corporation, its
stockholders, us or our stockholders, arising from the transactions
contemplated by the merger agreement;
-105-
o Any and all consents, waivers, assignments and approvals shall have
been obtained;
o CombiMatrix Corporation shall have been provided with a certificate
executed on behalf of Acacia Research by officers with titles of
senior vice president or above to the effect that, as of the effective
time of the merger, certain conditions have been met;
o CombiMatrix Corporation shall have received the opinion of Allen
Matkins Leck Gamble & Mallory LLP, legal counsel to Acacia Research,
as to the due and valid authorization and issuance of the
AR-CombiMatrix stock;
o CombiMatrix Corporation shall have received the opinion of an
investment banker of national reputation as to the fairness of the
merger from a financial point of view; and
o A special committee of disinterested directors of the CombiMatrix
Corporation board of directors shall have recommended approval of the
merger.
TERMINATION
The merger agreement may be terminated and the merger may be abandoned at
any time prior to the effective time of the merger as follows:
o by mutual consent; and
o by either us or CombiMatrix Corporation, if:
(1) the merger has not been consummated by December 31, 2002;
provided, however, that this right to terminate will not be available to any
party whose action or failure to act has been a principal cause of or resulted
in the failure of the merger to occur on or before that date;
(2) there is a final nonappealable order of a federal or state
court in effect preventing consummation of the merger;
(3) consummation of the merger is illegal due to applicable
statute, rule, regulation, injunction, order or decree;
(4) at the CombiMatrix Corporation special meeting the requisite
vote of the CombiMatrix Corporation stockholders in favor of the merger and the
merger agreement is not obtained, unless the failure to obtain the requisite
vote was caused by the action or failure to act of the party seeking to
terminate the merger agreement;
(5) at our special meeting the requisite vote of our stockholders
is not obtained in favor of the merger agreement and the recapitalization
proposal unless the failure to obtain the requisite vote was caused by the party
seeking to terminate the merger agreement;
(6) any governmental action is taken, or any statute, rule,
regulation or order enacted, promulgated or issued or deemed applicable to the
merger by any governmental body, which would (a) prohibit our ownership or
operation of the business of CombiMatrix Corporation or our existing business or
(b) compel us or CombiMatrix Corporation to dispose of or hold separate all or a
material portion of the business assets of CombiMatrix Corporation or our
existing business as a result of the merger;
(7) by CombiMatrix Corporation if it is not in material breach of
its obligations under the merger agreement and we have breached any
representation, warranty or covenant in the merger agreement, or if any
representation or warranty of ours has become untrue, provided that we shall
have thirty (30) days to cure such breach or untruthfulness (unless by its
nature the breach or untruthfulness cannot be cured); or
-106-
(8) by us if we are not in material breach of our obligations
under the merger agreement and CombiMatrix Corporation has breached any
representation, warranty or covenant in the merger agreement, or if any
representation or warranty of CombiMatrix Corporation has become untrue,
provided that CombiMatrix Corporation shall have thirty (30) days to cure such
breach or untruthfulness (unless by its nature the breach or untruthfulness
cannot be cured).
EFFECT OF TERMINATION
In the event of termination of the merger agreement, the merger agreement
shall become void and there shall be no liability or obligation on our part or
on the part of Combi Acquisition Corp. or CombiMatrix Corporation, or their
respective officers, directors or stockholders, except that each party will
remain liable for any willful breaches of such party's covenants or intentional
or willful breaches of such party's representations and warranties prior to
termination.
AMENDMENTS AND WAIVERS
Generally, we and CombiMatrix Corporation may amend or waive any provision
of the merger agreement before the effective time of the merger. However, if a
material condition is waived, we must amend the registration statement of which
this prospectus and proxy statement forms a part, and CombiMatrix Corporation
must resolicit proxies for the adoption of the merger agreement. Moreover, after
CombiMatrix Corporation stockholders have approved the merger, their further
approval would be required to modify the amount or type of consideration that
they will receive in the merger or to otherwise alter the merger agreement in a
manner materially adverse to them.
NO RELIEF FROM LIABILITY FOR WILLFUL BREACH
No termination of the merger agreement will relieve either party of its
liability for willful breach of the agreement.
-107-
ACACIA RESEARCH CORPORATION
BUSINESS
Acacia Research Corporation develops, acquires and licenses enabling
technologies for the life sciences and media technology sectors, which comprise
the two business groups of Acacia Research.
Our life sciences business, referred to as the "CombiMatrix group," is
comprised principally of CombiMatrix Corporation. Our core technology
opportunity in the life sciences sector has been developed through our
subsidiary, CombiMatrix Corporation. CombiMatrix Corporation is a life science
technology company with a proprietary system for rapid, cost competitive
creation of DNA and other compounds on a programmable semiconductor chip. This
proprietary technology has significant applications relating to genomic and
proteomic research.
Our media technologies business, collectively referred to as "Acacia
Technologies group," owns technology commonly known as the V-chip. The V-chip
was adopted by the manufacturers of televisions sold in the U.S. to provide
blocking of certain programming based upon its content rating code, in
compliance with the Telecommunications Act of 1996. The V-chip technology is
protected by U.S. Patent No. 4,544,584. In addition, Acacia Technologies owns a
digital media transmission ("DMT") technology enabling the digitization,
encryption, storage, transmission, receipt and playback of digital content. The
DMT technology is protected by five U.S. and seventeen international patents.
The DMT technology is utilized by a variety of companies, including cable
companies, satellite companies, telephone companies, digital radio stations,
content delivery networks, Internet service providers, hardware manufacturers
and software manufactures, and covers many types of digitized content including
movies, music, games, live events, instructional classes and photographs.
-108-
Following is a summary of the principal companies that constitute our two
business groups:
GROUP NAME DESCRIPTION OF BUSINESS
---------- -----------------------
COMBIMATRIX GROUP:
CombiMatrix Corporation A life science technology company with a
proprietary system for rapid, cost
competitive creation of DNA and other
compounds on a programmable
semiconductor chip. This proprietary
technology has significant applications
relating to genomic and proteomic
research.
CombiMatrix Corporation recently
purchased Acacia Research's interest in
Advanced Material Sciences, Inc., a
development stage company that holds the
exclusive license for CombiMatrix
Corporation's biological array processor
technology in certain fields of material
science. CombiMatrix Corporation issued
180,982 shares of its common stock in
exchange for Acacia Research's 58%
interest in Advanced Material Sciences,
Inc. CombiMatrix Corporation currently
owns 87% of Advanced Material Sciences
and the remaining interests are owned by
unaffiliated entities.
ACACIA TECHNOLOGIES GROUP:
Soundview Technologies Incorporated A media technology company that owns
intellectual property related to the
telecommunications field, including a
television blanking system, also known
as "V-chip," which licenses to
television manufacturers.
Acacia Media Technologies Corporation A media technology company that owns a
digital media transmission technology
used to digitize, encrypt, store,
transmit, receive and playback digitized
content sent via pathways such as cable,
satellite and the Internet, and covering
a variety of services such as those
commonly known as video-on-demand,
audio-on-demand and streaming media.
Following the recapitalization and merger, if approved, our stock will be
divided into two classes reflecting the two business groups described above.
For information regarding market and technology background, products and
services, solutions, strategies, marketing and distribution, joint ventures,
regulatory matters related to the specific business units, competition in the
two sectors, research, development and engineering, management, employees,
patents, licenses and franchises and other business matters, please see the
relevant sections in "CombiMatrix Group - Business" and "Acacia Technologies
Group - Business".
-109-
MANAGEMENT
BOARD OF DIRECTORS
Our board of directors is fixed at six members and is divided into three
classes, with each class being as nearly equal in number of directors as
possible. The term of a class expires, and their successors are elected for a
term of three years, at each annual meeting of our stockholders.
Following the recapitalization and merger, if approved, our board of
directors will continue to be divided into three classes and will consist of the
same persons that currently serve as members of the board. For information
regarding the proposed management of the respective groups, please see the
relevant sections in "CombiMatrix Group - Business" and "Acacia Technologies
Group - Business."
The following table sets forth information as to the persons who serve as
our directors.
NAME AGE DIRECTOR SINCE POSITIONS WITH THE COMPANY
----------------------- --- -------------- ----------------------------
Paul R. Ryan 57 1995 Chairman and Chief Executive
Officer
Robert L. Harris, II 44 2000 President and Director
Thomas B. Akin* 50 1998 Director
Fred A. de Boom* 66 1995 Director
Edward W. Frykman* 66 1996 Director
G. Louis Graziadio, III 53 2002 Director
----------
* MEMBER OF THE AUDIT COMMITTEE AND THE COMPENSATION COMMITTEE
Biographical information regarding and each of our directors is set forth
below.
CLASS I DIRECTORS (TERMS EXPIRING 2004)
ROBERT L. HARRIS, II has served as a director since April 2000 and as
President since July 2000. Mr. Harris was previously the President and Director
of Entertainment Properties Trust from 1997 to July 2000. Mr. Harris founded
Entertainment Properties Trust, which is a publicly-traded company that
purchases real estate from major entertainment companies. Mr. Harris led the
International Division and served as Senior Vice President of AMC Entertainment
from 1993 to 1997, and served as President of Carlton Browne and Company, Inc.,
a holding company and trust with assets in real estate, insurance and financial
services, from 1984 to 1992. He also serves on the Board of Directors of the
George L. Graziadio School of Business and Management at Pepperdine University.
FRED A. DE BOOM has served as a director since February 1995. Mr. de Boom
has been a principal in Sonfad Associates since June 1993. Sonfad Associates is
a Los Angeles-based investment banking firm that is involved in mergers and
acquisitions, private debt and equity placements, strategic and financial
business planning, leveraged buy-outs and ESOP funding, bank debt refinance,
asset based and lease financing, and equity for debt restructuring. Previously,
he was employed as a Vice President of Tokai Bank for five years and as a Vice
President of Union Bank for eight years. Mr. de Boom received his B.A. degree
from Michigan State University and his M.B.A. degree from the University of
Southern California.
CLASS II DIRECTORS (TERMS EXPIRING 2005)
THOMAS B. AKIN has served as a director since May 1998. Mr. Akin has been
the Managing General Partner of four private investment funds (Talkot Partners
I, Talkot Partners II, LLC, Talkot Crossover Fund, L.P., and Talkot Capital)
since 1996. Mr. Akin previously served in a variety of capacities for Merrill
Lynch and Co., including Managing Director of Western Regional Sales from 1986
to 1994. Mr. Akin holds a B.A. from the
-110-
University of California at Santa Cruz and attended the University of California
at Los Angeles Graduate School of Business.
EDWARD W. FRYKMAN has served as a director since April 1996. Mr. Frykman
has been an Account Executive with Crowell, Weedon & Co. since 1992. Previously,
Mr. Frykman served as Senior Vice President of L.H. Friend & Co. Both Crowell,
Weedon & Co. and L.H. Friend & Co. are investment brokerage firms located in
Southern California. In addition, Mr. Frykman was a Senior Account Executive
with Shearson Lehman Hutton where he served as the Manager of the Los Angeles
Regional Retail Office.
CLASS III DIRECTOR (TERMS EXPIRING 2003)
PAUL R. RYAN has served as a director since August 1995, as Chief Executive
Officer since January 1997 and as Chairman since April 2000. He also served as
President of the Company from January 1997 until July 2000. Prior to being named
Chief Executive Officer, he was Executive Vice President and Chief Investment
Officer of Acacia Research from 1996 through 1997 and Vice President, Capital
Management, of Acacia Research from 1995 through 1996. He was formerly
co-founder and general partner of the American Health Care Fund, L.P., held
positions with Young & Rubicam, Ogilvy & Mather, and Merrill Lynch and was a
private venture capital investor. Mr. Ryan holds a B.S. from Cornell University
and attended the New York University Graduate School of Business.
G. LOUIS GRAZIADIO, III has been a director since February 2002. Since
1990, Mr. Graziadio has held the positions of Chairman and Chief Executive
Officer of Second Southern Corp., the managing partner of Ginarra Partners,
L.L.C., a California company engaged in a wide range of investment activities
and business ventures. He also serves as a director of Graziadio Development
Company, California Rice Bran Co., Inc., Beachcliff Real Estate, Inc., Boss
Holdings, Inc. and Boss Manufacturing, Co.
EXECUTIVE OFFICERS
Following the recapitalization and merger, if approved, we anticipate that
our executive officers will remain the same. Certain of our executive officers
also serve as officers of the subsidiaries that constitute our respective
business groups. For information regarding the proposed management of the
respective groups, please see the relevant sections in "CombiMatrix Group -
Business" and "Acacia Technologies Group - Business."
Set forth below is certain information concerning our executive officers as
of the date hereof.
NAME AGE POSITIONS WITH THE COMPANY
-------------------- --- ---------------------------------------------------------------------
Paul R. Ryan 57 Chairman and Chief Executive Officer
Robert L. Harris, II 44 President
Clayton J. Haynes 33 Chief Financial Officer, Treasurer and Senior Vice President, Finance
Amit Kumar, Ph.D 38 Chief Executive Officer and President of CombiMatrix Corporation
The following is biographical information and a brief description of the
capacities in which each of the executive officers has served during the past
five years. Biographical information on Messrs. Ryan and Harris is set forth
above under "Board of Directors."
CLAYTON J. HAYNES joined us in April 2001 as Treasurer and Senior Vice
President, Finance. In November 2001, Mr. Haynes was appointed Chief Financial
Officer of Acacia Research. From 1992 to March 2001, Mr. Haynes was employed by
PricewaterhouseCoopers LLP, ultimately serving as a Manager in the Business
Advisory Services practice. Mr. Haynes received a B.A. from the University of
California at Los Angeles, is a Certified Public Accountant and is a member of
the American Institute of Certified Public Accountants.
AMIT KUMAR, PH.D. joined us in July 2000 as Senior Vice President of Life
Sciences. Dr. Kumar was elected to the position board of directors of
CombiMatrix Corporation in September 2000. Dr. Kumar was appointed to the
position of Chief Executive Officer and President of CombiMatrix Corporation in
September 2001.
-111-
From 1999 to 2000, Dr. Kumar was CEO and President of Signature Bioscience, a
genomic and proteomic tool company. From 1998 to 1999, he was an Entrepreneur in
Residence at Oak Investment Partners, specializing in emerging life science and
biotechnology companies. Dr. Kumar held the position of Senior Manager at IDEXX
Laboratories, and was Head of Research and Development at Idetek Corporation
from 1995 to 1998. Dr. Kumar attended Stanford University, received his Ph.D.
from the California Institute of Technology and was a Post Doctorate Fellow at
Harvard University.
EMPLOYEES
As of November 1, 2002, Acacia Research and its CombiMatrix subsidiary had
117 full-time employees. We are not a party to any collective bargaining
agreement. We consider our employee relations to be good.
For more information regarding employees, please see the relevant sections
in "CombiMatrix Group - Business" and "Acacia Technologies Group - Business."
PROPERTIES
We lease approximately 7,143 square feet of office space in Newport Beach,
California, under a lease agreement that expires in February 2007. We also lease
approximately 7,019 square feet of office space in Pasadena, California, under a
lease agreement that expires in November 2003, which is subleased through the
remaining term of the lease agreement. Our consolidated subsidiary, CombiMatrix
Corporation, leases office and laboratory space totaling approximately 90,111
square feet located north of Seattle, Washington, under a lease agreement that
expires in December 2008.
We are a guarantor under a lease agreement for office space in Hollywood,
California that expires in August 2005. That lease agreement was entered into by
Soundbreak.com, which ceased operations in February 2001. A portion of those
leased premises is subleased through the remaining term of that lease agreement.
Acacia Research continues to pursue opportunities to sublease the remaining
space.
For more information regarding properties, please see the relevant sections
in "CombiMatrix Group - Business" and "Acacia Technologies Group - Business."
LEGAL PROCEEDINGS
In the ordinary course of our business, we are regularly the subject of, or
party to, various pending or threatened legal actions. We believe that any
liability arising from these actions will not have a material adverse effect on
our financial position, results of operations or cash flows.
For information regarding legal proceedings, please see the relevant
sections in "CombiMatrix Group - Business" and "Acacia Technologies Group -
Business."
THE INVESTMENT COMPANY ACT OF 1940
The regulatory scope of the Investment Company Act of 1940 ("Investment
Company Act"), which was enacted principally for the purpose of regulating
vehicles for pooled investments in securities, extends generally to companies
engaged primarily in the business of investing, reinvesting, owning, holding or
trading in securities. We believe that our anticipated principal activities will
not subject us to regulation under the Investment Company Act. However, the
Investment Company Act may also apply to a company which does not intend to be
characterized as an investment company but which, nevertheless, engages in
activities which may be deemed to be within the scope of certain provisions of
the Investment Company Act. In such an event, we may become subject to certain
restrictions relating to our activities, including restrictions on the nature of
our investments and the issuance of securities. In addition, the Investment
Company Act imposes certain requirements on companies deemed to be within its
regulatory scope, including registration as an investment company, adoption of a
specific form of corporate structure and compliance with certain burdensome
reporting, record-keeping, voting, proxy, disclosure and other rules and
regulations, all of which could cause significant registration and compliance
costs. Accordingly,
-112-
we will continue to review our activities from time to time with a view toward
reducing the likelihood that we could be classified as an "investment company"
within scope of the Investment Company Act.
-113-
COMBIMATRIX GROUP
(A DEVELOPMENT STAGE DIVISION OF ACACIA RESEARCH CORPORATION)
BUSINESS
The CombiMatrix group is comprised of CombiMatrix Corporation, a subsidiary
of Acacia Research, and Advanced Material Sciences, a subsidiary of CombiMatrix
Corporation, and includes corporate assets, liabilities and transactions of
Acacia Research that relate to its life sciences business. CombiMatrix
Corporation is a development stage company engaged in the development of a
proprietary universal biochip with applications in the genomics, proteomics and
combinatorial chemistry markets.
The CombiMatrix group is developing a technology to allow it, its customers
and any entities with which the CombiMatrix group has joint development efforts,
to rapidly produce customizable biological array processors, which are
semiconductor-based tools for use in identifying and determining the roles of
genes, gene mutations and proteins. The CombiMatrix group is designing its
products principally to be responsive to the needs of pharmaceutical and
biotechnology researchers to analyze raw genomic data in the discovery and
development of pharmaceutical products. Its biological array processor is a
semiconductor coated with a three-dimensional layer of porous material in which
DNA, RNA, proteins, peptides or small molecules can be synthesized or
immobilized within discrete test sites. The CombiMatrix group integrates a
micro-fabricated semiconductor chip, proprietary software, chemistry, and
hardware into a system that it believes will enable it, its customers and any
entities with which the CombiMatrix group has joint development efforts, to
design, customize and fabricate biological array processors made to user's
specifications, typically in less than a day. The CombiMatrix group's system
should enable researchers to conduct rapid, iterative experiments to analyze the
large amounts of genomic information generated by the Human Genome Project and
other genomic research efforts. The CombiMatrix group believes that its
customizable biological array processors will enable users to reduce the time
and costs associated with the discovery and development of pharmaceutical
products.
MARKET OVERVIEW AND TECHNOLOGY BACKGROUND
GENERAL OVERVIEW
The pharmaceutical and biotechnology industries are faced with increasing
costs and substantial risks of failure in the drug discovery, development and
commercialization process. The time required to successfully commercialize a new
proprietary drug now averages 15 years, and the direct and indirect costs of the
process average almost $800 million per drug. Less than 1% of all new chemical
compounds that are developed by pharmaceutical companies result in
pharmaceutical products that are approved for patient use. The pharmaceutical
and biotechnology industries are attempting to reduce their costs and risks of
failure by turning to new technologies to help identify deficiencies in drug
candidates as early as possible in the process so that drug discovery and
development become more efficient and cost-effective. Additionally, with vast
amounts of genomic data becoming available for use in the development of
therapeutics and diagnostic tests, they are searching for ways to expedite their
analysis of available genomic data so that they can be the first to bring new
therapeutics and diagnostic tests to market.
DRUG DISCOVERY AND DEVELOPMENT
The discovery and development of new drugs for a particular disease
typically involve several steps. First, researchers identify a target for
therapeutic intervention, such as a protein, that is either directly involved in
the disease or lies in a biochemical pathway leading to the disease. The next
step is to identify chemical compounds that interact with the target and
modulate the target's activity in a manner that might help reverse, inhibit or
prevent the disease. The most promising compounds to emerge from this process
advance to the next stage, where synthetic derivatives of the compounds are
generated and tested to determine a lead compound. The interactions of these
lead compounds with the target and their activity in animal or cellular models
of the disease are then tested to determine which compounds might be developed
successfully into new drugs. The best new drug candidates then begin clinical
trials in humans.
-114-
Recent advances have led to the use of genomics in choosing targets for
drug development. This process begins with the discovery and identification of
genes within the genome and the functions of these genes in regulating
biological processes and disease. This information is used to assess the value
of a particular gene or its protein product as a target for drug discovery. Once
a target is chosen, high throughput chemistry and other drug discovery methods
are used to identify chemical compounds that interact with the target and might
help reverse, inhibit or prevent the disease. These compounds are then tested in
pre-clinical and clinical development programs.
According to industry statistics, pharmaceutical and biotechnology
companies world-wide spent approximately $55 billion on drug research and
development during 1999. Of this amount, approximately $14.7 billion was spent
on drug discovery, $7.6 billion on toxicology, $17.8 billion on pre-clinical
testing and clinical trials and $14.9 billion on post-marketing evaluations and
other matters.
The CombiMatrix group believes that biological array processors, whether
they contain DNA, peptides, or proteins have potential applications in all major
phases of drug discovery and development. In the discovery phase, the
CombiMatrix group believes biological array processors can facilitate the
process of identifying and validating targets and lead compounds. In the
development phase, the CombiMatrix group believes biological array processors
can enhance the speed and accuracy of the toxicology, pre-clinical and clinical
development process. The CombiMatrix group believes that biological array
processors can also play a role in monitoring the therapeutic effectiveness of
drugs that have been approved for use.
GENES AND PROTEINS
The human body is composed of billions of cells each containing DNA that
encodes the basic instructions for cellular function. The complete set of an
individual's DNA is called the genome, and is organized into 23 pairs of
chromosomes, which are further divided into smaller regions called genes. Each
gene is composed of a strand of four types of nucleotide bases, referred to as
A, C, G and T. The bases of one DNA strand bind to the bases of the other strand
in a specific fashion to form base pairs: the base A always binds with the base
T and the base G always binds with the base C.
The human genome has approximately 3 billion nucleotides and their precise
order is known as the DNA sequence. When a gene is turned on, or expressed, the
genetic information encoded in the DNA is copied to a specific type of RNA,
called messenger RNA, or mRNA. The mRNA provides instructions for the synthesis
of proteins. Proteins direct cellular function, the development of individual
traits and are involved in many diseases. Variations in any part of the sequence
of DNA, called polymorphisms, can interfere with the normal function of proteins
and may result in a change in cell function leading to disease, a predisposition
to disease, an adverse response to drugs or other unwanted effects.
GENE EXPRESSION PROFILING
Gene expression profiling is the process of determining which genes are
active in a specific cell or group of cells and is accomplished by measuring
mRNA, the intermediary between genes and proteins. By comparing gene expression
patterns between cells from normal tissue and cells from diseased tissue,
researchers may identify specific genes or groups of genes that play a role in
the presence of disease. Studies of this type, used in drug discovery, require
monitoring thousands, and preferably tens of thousands, of mRNAs in large
numbers of samples. As the correlation between gene expression patterns and
specific diseases is determined, the CombiMatrix group believes that gene
expression profiling will have an increasingly important role as a diagnostic
tool. Diagnostic use of expression profiling tools is anticipated to grow
rapidly with the combination of the sequencing of various genomes and the
availability of more cost-effective technologies.
GENETIC VARIATION AND FUNCTION
Genetic variation is mostly due to polymorphisms in genomes, although
functional variations may also arise from differences in the way genes are
expressed in a given cell, as well as the timing and levels of their expression.
Although most cells contain an individual's full set of genes, each cell
expresses only a small fraction of this set in different quantities and at
different times.
-115-
The most common form of genetic variation occurs as a result of a
difference in a single nucleotide in the DNA sequence, commonly referred to as a
single nucleotide polymorphism, or SNP. The human genome is estimated to contain
between three and six million SNPs. By screening for polymorphisms, researchers
seek to correlate variability in the sequence of genes with a specific disease.
SNPs are believed to be associated with a large number of human diseases,
although most SNPs are believed to be benign and not to be associated with
disease. Determining which SNPs may be related to a disease is a complex process
requiring investigation of a vast number of SNPs. An SNP association study might
require testing for 300,000 possible SNPs in 1,000 patients. Although only a few
hundred of these SNPs might be clinically relevant, 300 million genotyping
tests, or assays, might be required to complete a study. Using available
technologies, this scale of SNP genotyping is both impractical and prohibitively
expensive.
While in some cases one SNP will be responsible for medically important
effects, it is now believed that the genetic component of most major diseases is
associated with a combination of SNPs. As a result, the scientific community has
recognized the importance of investigating combinations of many SNPs in an
attempt to discover medically valuable information. In order to understand how
genetic variation causes disease, researchers must compare gene sequence
polymorphisms, or conduct SNP genotyping, from healthy and diseased individuals.
Researchers may also compare gene expression patterns, or perform gene
expression profiling, from healthy and diseased tissues.
SNP GENOTYPING
SNP genotyping is the process of comparing individuals' gene sequences to
identify variations in these sequences and determine the significance of these
variances. The CombiMatrix group believes that large-scale SNP genotyping, when
commercially feasible, has the potential to be used for a variety of
applications including:
o genomics-based drug development;
o clinical trial design and analysis;
o testing for predisposition to, and diagnosis of, disease;
o predicting the effectiveness of therapeutics; and
o applications outside healthcare.
PROTEOMICS
Proteomics is the process of determining which proteins are present in
cells, how they interact with one another, and how they are correlated with
genomic variation. This process is useful in drug discovery and diagnostics
because most drugs target proteins that play a role in the existence or
development of a disease. Although the potential market for proteomic products
is uncertain, the CombiMatrix group believes that proteomics may have
application in:
o discovery of new drug targets and new biochemical pathways;
o measurement of protein expression and modification; and
o correlation of protein variation and function with genomic variation
and function.
CURRENT TECHNOLOGIES
There are currently a variety of traditional technologies available for
analyzing genetic variation and function. Traditional technologies generally
perform assays individually, or serially, and often require relatively large
sample volumes, adding significantly to the costs of assays. Traditional
technologies can be improved by using microfluidics, a process that miniaturizes
the scale of experimentation for traditional methods. In addition,
-116-
most traditional technologies have limited flexibility to perform different
applications. Arrays were developed to overcome the limitations of traditional
technologies.
An array is a collection of miniaturized test sites arranged on a surface
that permits many tests to be performed simultaneously, or in parallel, in order
to achieve higher throughput. The average size of test sites in an array and the
spacing between them defines the array's density. Higher density increases
parallel processing throughput. In addition to increasing the throughput, higher
density reduces the required volume for the sample being tested, and thereby
lowers costs. Currently, the principal commercially available ways to produce
arrays include mechanical deposition, bead immobilization, inkjet printing and
photolithography.
While current array technologies have advantages over traditional
technologies, the CombiMatrix group believes the full market potential for
testing devices to study genetic variation and function has not been realized.
This is true for a number of reasons, including the following:
o HIGH COST. Many currently available array technologies require
relatively expensive capital equipment for manufacturing and
customizing arrays and reading test results.
o LOW THROUGHPUT. Some array technologies produce a relatively low
density of test sites, which results in low throughput.
o LIMITED APPLICATION. Many array technologies have limited application
outside of SNP genotyping and gene expression profiling, for example
in proteomics.
o INCONVENIENCE. Many array manufacturers do not offer researchers all
elements required to design arrays and to complete and analyze their
tests, such as test devices, software, instrumentation and reagents.
o INABILITY TO FABRICATE IN HOUSE. Most array manufacturers will ship
pre-fabricated arrays to customers, even though large customers have a
tremendous desire to fabricate their own arrays in house.
THE COMBIMATRIX SOLUTION
The CombiMatrix group believes that its integrated system has advantages
over other existing technologies because it will be a cost-effective, fast,
flexible, customizable alternative to existing analytical tools designed for
similar purposes. Researchers using the CombiMatrix group's system should be
able to design and order custom biological array processors or fabricate them
in-house, conduct their tests, analyze the results in the relatively inexpensive
hybridizer-reader supplied by the CombiMatrix group or any entities with which
the CombiMatrix group has joint development efforts, and reorder additional
custom biological array processors incorporating modified test parameters, all
within a few days. In addition, customers who wish to fabricate arrays
themselves will be able to utilize the CombiMatrix group's synthesizers and
blank chips to produce their own arrays.
The CombiMatrix group believes that its biological array processor system
will offer several advantages over competing products that are commercially
available. The principal scientific advantages of its system are derived from
the following three features:
o the CombiMatrix group's proprietary software, which directs the
individually controlled electrodes at the test sites on the surface of
its semiconductors and allows the CombiMatrix group to synthesize or
immobilize different sequences of DNA or RNA, peptides or small
molecules;
o its virtual flask technology, which uses the chemistry of carefully
engineered liquid solutions instead of physical walls around each
electrode and avoids the problem of chemical contamination between
test sites; and
-117-
o its porous reaction layer, which coats one surface of the
semiconductor and functions as a three-dimensional environment for the
synthesis or immobilization of relatively large quantities of DNA,
RNA, peptides or small molecules so that a stronger test signal is
generated at each test site.
As a result of these scientific features, the CombiMatrix group believes
that the system it is designing will have the following characteristics:
o RAPIDLY CUSTOMIZABLE. The CombiMatrix group believes its proprietary
software, chemistry and semiconductor system will allow it or its
partners to design, customize and ship biological array processors for
SNP genotyping and gene expression profiling that are tailored to meet
a customer's specifications in a relatively short time, typically as
little as a day. The CombiMatrix group's customization time should be
short because it intends to rely on proprietary software and chemical
processes, rather than costly and often imprecise mechanical methods,
to produce its biological array processors. The CombiMatrix group
believes researchers will be able to compress the time required to
complete an iterative series of genomic tests because of the short
turnaround time that should be required for the delivery of its
customized biological array processors.
o VERSATILE. The CombiMatrix group system can design and create
sequences of DNA, RNA, peptides or small molecules in the test sites
on its biological array processors, although its first product will be
limited to DNA sequences.
o HIGH THROUGHPUT. The CombiMatrix group's synthesizers will enable its
customers to fabricate from six to forty custom designed biological
array processors per day with a total of up to several thousand test
sites per processor.
o ACCURATE AND COST-EFFECTIVE. Relatively large amounts of DNA, RNA,
peptides or small molecules that can be synthesized or immobilized in
the porous reaction layer at each test site generate strong assay
signals that facilitate accurate interpretation of test data. These
strong assay signals will enable the CombiMatrix group's customers to
analyze the results of their tests without investing in the relatively
expensive capital equipment needed to detect weak signals.
o CONVENIENT AND INTEGRATED. The CombiMatrix group plans to offer its
customers a complete system including the software, biological array
processors, instrumentation and reagents necessary to design and
perform their assays and obtain an analysis of the results using the
Internet if they so choose. Typically, tests using the CombiMatrix
group's biological array processors should be able to be completed and
analyzed within hours by using the equipment, reagents and software
supplied by the CombiMatrix group.
o MANUFACTURING SCALABILITY. The CombiMatrix group believes it will be
able to increase production to respond to increased demand because its
semiconductors are manufactured by others using conventional
semiconductor fabrication methods and its customization equipment can
be rapidly assembled by the CombiMatrix group or any entities with
which the CombiMatrix group has joint development efforts.
PRODUCTS AND SERVICES
The CombiMatrix group's technology potentially represents a significant
advance over existing biochip technologies and other platforms for combinatorial
chemistry. The first application of the technology that the CombiMatrix group is
pursuing is in the field of genomics, where it is developing a biochip for the
analysis of DNA. The CombiMatrix group believes that this technology may be
applied to the fields of genetic analysis and disease management. The
CombiMatrix group is also developing the chip in the emerging field of
proteomics, where analysis of DNA is correlated to the levels of proteins in
patient samples. Many researchers believe that the analysis of proteomic
information will lead to the development of new drugs and better disease
management. Once the CombiMatrix group demonstrates the feasibility of its
approach in each market, it intends to enter into strategic alliances with major
participants to speed commercialization in multiple applications.
-118-
THE COMBIMATRIX GROUP'S STRATEGY
The CombiMatrix group's goal is to provide biotechnology, pharmaceutical
companies and academic researchers with the industry standard solution for rapid
evaluation of genetic function/variation, proteomic research, and bioinformatic
tools.
FOCUSING ON HIGH-GROWTH MARKETS
The CombiMatrix group is initially focusing on the gene expression
profiling, SNP genotyping, proteomic, and bioinformatics markets. Initial
product sales will be derived from of its DNA synthesizers, DNA microarrays,
hybridization-reader system, and bioinformatic tools. The CombiMatrix group
believes the market for its rapid customization microarrays and in-house
synthesizers has the potential for high growth due to increasing demand for
therapeutics and diagnostics based on newly available genomic information. To
date, the lack of high-throughput, cost- effective, and the slow turnaround of
current technologies has limited the growth of this market.
PARTNERING WITH MULTIPLE COMPANIES TO EXPAND MARKET OPPORTUNITY
The CombiMatrix group plans to pursue multiple relationships to facilitate
the expansion of its semiconductor based microarray technologies and to exploit
large and diverse markets. The CombiMatrix group expects to enter into
relationships and collaborations to gain access to complementary technologies,
distribution channels, manufacturing infrastructure, and information content.
The CombiMatrix group intends to structure relationships that maximize its
research and development efforts with the strong distribution and manufacturing
capabilities of its customers and any entities with which the CombiMatrix group
has joint development efforts, enabling industry standard solutions for
pharmaceutical and biotechnology researchers. Such a strategy will enable the
CombiMatrix group to focus on its strength which is research and development,
and leverage the strengths of any entities with which it has entered into
agreements to commercialize its products.
COMMERCIALIZING AND MANUFACTURING DESKTOP SYNTHESIZERS AND MICROARRAY
TECHNOLOGY FOR GENE EXPRESSION PROFILING AND MOLECULAR DIAGNOSTICS
The CombiMatrix group intends to rapidly commercialize its microarray
technology for gene expression profiling through agreements to jointly develop
technology. The CombiMatrix group has an agreement with Roche to jointly develop
technology. Roche contributes extensive expertise in instrument and reagent
development, as well as offers a large and experienced worldwide sales and
marketing team. The CombiMatrix group believes that the combination of its
microarray technology with Roche's leadership position in the genetic analysis
and diagnostic markets will enable it to capture a significant portion of the
gene expression profiling and molecular diagnostic markets.
In addition to Roche, the CombiMatrix group plans on establishing other
relationships for its DNA microarray technology. The CombiMatrix group also
intends on establishing alliances for its proteomic and bioinformatic products.
EXPANDING TECHNOLOGIES INTO MULTIPLE PRODUCT LINES
The CombiMatrix group intends to utilize the flexibility of its
semiconductor based microarray technologies to develop multiple product lines.
In addition to providing new sources of revenue, it believes these product lines
will further its goal of establishing its microarray technology as the industry
standard for array-based analysis.
STRENGTHENING TECHNOLOGICAL LEADERSHIP
The CombiMatrix group plans to continue advancing its proprietary
technologies through its internal research efforts, collaborations with industry
leaders and strategic licensing. The CombiMatrix group may also pursue
acquisitions of complementary technologies and leverage its technologies into
other value-added businesses. Its efforts to strengthen their technology include
the following:
-119-
o RAPIDLY COMMERCIALIZING ITS SNP GENOTYPING AND GENE EXPRESSION
PROFILING PRODUCTS. The CombiMatrix group is initially focusing on the
SNP genotyping and gene expression profiling markets because it
believes that there is substantial demand for tools that help analyze
newly available genomic information and thereby assist pharmaceutical
and biotechnology companies in developing new drugs and diagnostic
tools. Typically, sales of products in these markets do not require
advance clearance by the Food and Drug Administration and, as a
result, can be achieved more quickly and with less cost than sales of
regulated devices.
o DEVELOPING PRODUCT APPLICATIONS IN PROTEOMICS. Proteomic research has
not developed as rapidly as SNP genotyping and gene expression
profiling because of the absence of effective technology and tools for
conducting research. The CombiMatrix group believes that its
biological array processor system can be developed to facilitate
proteomic research. The CombiMatrix group has developed chemical
processes for the rapid immobilization of proteins and small molecules
within the test sites on its biological array processors. The
CombiMatrix group believes its system may be particularly effective in
proteomic research because the proprietary materials that can be used
to form the three-dimensional porous reaction layer on its biological
array processors are a hospitable environment for the immobilization
and study of proteins. The CombiMatrix group has produced customized
test devices with peptides and small molecules for possible use in
proteomic research. The CombiMatrix group is currently developing its
technology for proteomic applications.
o EXPANDING OUR PROPOSED PRODUCT OFFERINGS. The CombiMatrix group is
engaged in several research and development initiatives to expand its
product offerings by increasing the density of its biological array
processors and by developing additional applications of its technology
for drug discovery and development. The CombiMatrix group believes
that the flexible, parallel processing capabilities of its biological
array processor system may have potential applications related to:
o gene discovery and function characterization;
o specific targeting of drug discovery efforts;
o the development of customized drugs;
o high-throughput screening for pharmaceutical candidates;
o the development of diagnostic methods for identifying,
classifying and staging diseases;
o the prediction of successful drug therapy for a particular
patient population;
o the identification of an individual patient's tolerance for a
particular drug so that previously abandoned drugs can be
selectively prescribed;
o early recognition of potential adverse response to drug therapy;
and
o identification of predisposition to disease in order to prescribe
preventative therapies.
However, the CombiMatrix group has not yet produced products to address or
access the potential of its technology in these areas.
o PROTECTING AND STRENGTHENING ITS INTELLECTUAL PROPERTY POSITION.
Through the CombiMatrix group's two issued patents in the United
States and one in Europe, its more than 42 patent applications pending
in the United States, Europe and elsewhere and its trade secrets, the
CombiMatrix group believes it has suitable intellectual property
protection for its proprietary technologies. The CombiMatrix group
plans to build its intellectual property portfolio through internal
research efforts, collaborations with industry leaders, strategic
licensing and possible acquisitions of complementary technologies. The
CombiMatrix group also plans to pursue patent protection for
downstream products created using its proprietary products.
-120-
THE COMBIMATRIX GROUP SYSTEM AND TECHNOLOGY
The CombiMatrix group anticipates that a customer wishing to use its
bioarray product will use its proprietary software to provide the CombiMatrix
group, or an entity with which the CombiMatrix group has joint development
efforts, with information relating to the sequences that the customer wishes to
evaluate. Array design software will design an initial array of DNA segments and
then instruct a synthesizer unit to customize one or more biological array
processors containing these selected DNA segments. This process will be entirely
automated. The completed biological array processor will be shipped to the
customer along with kits including specific instructions and reagents needed to
conduct these evaluations. The CombiMatrix group expects that the time interval
between receipt of the customer's order and shipment of the biological array
processors and reagent kits will typically be less than a day. Alternatively for
a customer with an in-house synthesizer, the process will be competed typically
overnight. To use the processor, the customer will prepare a sample and
introduce to the processor. The processor will then be inserted into a
hybridizer-reader unit that the CombiMatrix group, or an entity with which the
CombiMatrix group has joint development efforts, will have supplied to the
customer. Proprietary software will enable the customer to image the processor,
format the data and perform analysis.
In practical operation, the CombiMatrix group expects that a customer will
typically analyze the results of an initial experiment and choose to change the
composition of its biological array processors to further optimize its
performance. For example, a customer may choose to change the sequences of some
array elements, eliminate some sequences altogether, or incorporate additional
sequences. The CombiMatrix group's biological array processor system will allow
a researcher to order or fabricate successive arrays with the desired changes.
THE COMBIMATRIX GROUP PROCESS
Each of the CombiMatrix group's biological array processors is made up of a
semiconductor chip on which the CombiMatrix group has installed electrical
conduits and applied a layer of porous material. It will have up to
approximately 10,000 test sites, one for each electrode site on the
semiconductor. The CombiMatrix group can synthesize or immobilize DNA, RNA,
peptides or small molecules within the porous reaction layer at each test site
on the surface of its semiconductor, although it has not synthesized or
immobilized any combination of DNA, RNA, peptides and small molecules on a
single biological array processor. The CombiMatrix group confines the chemical
synthesis within each test site using chemistry of carefully engineered liquid
solutions. This avoids the problem of chemical contamination between different
test sites. Because confinement is accomplished without physical walls, the
CombiMatrix group refers to this enabling technology as a virtual flask. This
virtual flask technology enables the CombiMatrix group to use semiconductor
devices that are fabricated by contractors using conventional semiconductor
processes.
In the case of the CombiMatrix group's DNA arrays, each test site, or
virtual flask, will contain a particular DNA segment, or capture probe, that is
made by putting nucleotide bases, A, G, C, or T, together one at a time. These
DNA probes typically contain between 16 and 60 nucleotide bases. The CombiMatrix
group's software selectively activates each electrode where a new nucleotide
base is to be added. Once activated, the electrode causes an electrochemical
reaction to occur that produces chemicals that react with the existing chains of
DNA at that site to activate them for bonding with the next nucleotide base.
These electrochemically-generated chemicals are confined by the CombiMatrix
group's virtual flask technology to the region of the porous reaction layer that
surrounds the electrode where they are produced. A fluidics delivery unit then
floods the semiconductor with a solution containing a nucleotide base, which
binds only to the capture probe at activated sites. This cycle is repeated over
and over to produce different DNA segments at each test site. Quality assurance
tests are performed following completion of the synthesis process. The
CombiMatrix group's laboratory tests have confirmed that other substances, such
as peptides, immobilized proteins and antibodies, small organic molecules and
enzymes, among others, can also be chemically isolated in the virtual flasks.
SEMICONDUCTOR COMPONENT
The CombiMatrix group's semiconductors are manufactured by others using
conventional semiconductor fabrication processes. The CombiMatrix group believes
that the total number of test sites on a semiconductor is limited only by the
degree of miniaturization of the semiconductor fabrication process. The
CombiMatrix group believes that its semiconductor architecture is scalable and,
as a result, that it can benefit directly from the
-121-
substantial investments that have been made by the semiconductor industry in
miniaturizing chip fabrication processes. At the present time, the CombiMatrix
group is using devices made with a 3.0 micron process size that yield 1,024
potential test sites within less than a square centimeter. Each of the
individual sites is 100 microns in diameter, about the diameter of a human hair.
The CombiMatrix group believes that by using a standard 0.25 micron
semiconductor fabrication process, it can produce a biological array processor
with over 1,000,000 sites per square centimeter, although it has not yet made or
tested a biological array processor with more than 18,000 potential test sites.
POROUS REACTION LAYER
The CombiMatrix group's proprietary porous reaction layer is a
three-dimensional medium within which sequences of DNA, RNA, peptides or small
molecules can be synthesized and immobilized. The CombiMatrix group's porous
reaction layer materials can be attached to the active side of its
semiconductor. The three-dimensional and porous nature of the reaction layer
enables the CombiMatrix group to produce significantly more biomolecules within
each virtual flask site than is possible when the molecules are produced on a
flat two-dimensional surface, as is typical for other array technologies. As a
consequence, the CombiMatrix group can achieve a significant improvement in the
test signals and is able to use less costly devices to determine test results
than devices required for some competing technologies. These features improve
the overall performance of its biological array processor system and reduce the
cost to prospective customers.
HYBRIDIZER-READER
Hybridization is the binding of DNA sequences in a test sample with the DNA
material that has been created at specific test sites on its biological array
processors. In the case of DNA, segments bind together when the DNA segments in
a sample and the DNA segments on its test sites are complementary. The
CombiMatrix group is developing a combination hybridization chamber and
biological array processor reader that it calls the hybridizer-reader. The
hybridization chamber is being designed to help researchers standardize their
experimental conditions, such as temperature, so that consistent results may be
obtained from experiment to experiment. In the hybridization chamber, a solution
that the researcher wants to analyze will be washed over one or more of the
CombiMatrix group's biological array processors. DNA in the sample that is
complementary with the DNA on the capture probes of the CombiMatrix group's
biological array processors will bond. The hybridizer-reader will measure and
identify the presence or absence and relative strength of bonding in the test
sites on the biological array processors using conventional equipment. Because
the optical signals resulting from the tests are stronger than those obtained
from chips that contain a single molecular layer of test material, at its
current chip density the CombiMatrix group will be able to read test results
with a standard video camera system that should be substantially less expensive
than the typical optical reader system needed to read other chips on the market.
If the CombiMatrix group is able to increase substantially the density of its
biological array processor, researchers may be required to use more expensive
equipment to analyze the smaller volume of material bonded at each test site.
IN-HOUSE SYNTHESIZERS
The process of fabricating bioarray processors is performed using an
electrochemical technique, which takes advantage of the virtual flask
technology. This capability enables us to build synthesizers (desk top versions
as well as high-throughput industrial versions) that can be operated at the site
of use. Therefore, customers who choose to fabricate their own arrays can do so
by purchasing, leasing, or licensing one of our synthesizers for operation in
their own facilities. This capability will enable customers to utilize array
processors quickly by eliminating the time necessary for shipping from a central
manufacturing facility. In addition, these customers will never be required to
disclose to any party, including the CombiMatrix group, the sequences or genes
in which they are investigating.
SOFTWARE
The CombiMatrix group has designed and is testing integrated, modular
software that will direct the design and customization of its biological array
processors for use in DNA applications. The software required to enable
proteomic research is in the early stages of development.
-122-
The CombiMatrix group's current software is being designed to:
o permit customers to access public databases for gene sequence
information;
o permit customers to transmit their research objectives to the
CombiMatrix group or partners over the Internet, or to their own
in-house synthesis lab behind their IT firewall;
o enable the CombiMatrix group to rapidly screen potential DNA segments
against large numbers of DNA targets during its design process;
o enable the CombiMatrix group to direct its manufacturing equipment to
synthesize DNA segments designed by it on the surface of its
biological array processors; and
o permit the CombiMatrix group to quality check the finished product.
REGULATORY MATTERS
The CombiMatrix group intends to sell products to the pharmaceutical,
biotechnology and academic communities for research applications. Therefore, its
initial products will not require approval from, or be regulated by, the United
States Food and Drug Administration ("FDA") as a manufacturer nor will they be
subject to the FDA's current good manufacturing practice ("cGMP") regulations.
Additionally, the CombiMatrix group's initial products will not be subject to
certain reagent regulations promulgated by the FDA. However, the manufacture,
marketing and sale of certain products and services for any clinical or
diagnostic applications will be subject to extensive government regulation as
medical devices in the United States by the FDA and in other countries by
corresponding foreign regulatory authorities.
The FDA requires that a manufacturer seeking to market a new or modified
medical device, or an existing medical device for a new indication, obtain
either a pre-market notification clearance under the Federal Food, Drug and
Cosmetic Act or a showing of substantial equivalence in function to an existing
regulated device. The CombiMatrix group anticipates that its products will
become subject to medical device regulations in the United States only when they
are marketed for clinical uses for any clinical or diagnostic purpose, excluding
pure research or product discovery research purposes. Material changes to
existing medical devices are also subject to FDA review and clearance or
approval prior to commercialization in the United States.
Should the CombiMatrix group market products for any clinical or diagnostic
purpose or act as a manufacturer or supplier of products for a third-party
customer to market for any clinical or diagnostic purpose, it will be required
to register as a medical device manufacturer with the FDA. As a registered
manufacturer, the CombiMatrix group would be subject to routine inspection by
the FDA for compliance with cGMP regulations and other applicable regulations.
In addition, the CombiMatrix group must currently comply with a variety of other
federal, state and local laws and regulations relating to safe work conditions
and manufacturing practices. The extent of government regulation that might
result from any future legislation or administration cannot be predicted.
Moreover, there can be no assurance that the CombiMatrix group or its
third-party customers will be able to obtain appropriate FDA regulatory
approvals on a timely basis, or at all, or that the CombiMatrix group will be
able to comply with cGMP regulations.
Sales of the CombiMatrix group's products outside the United States will be
subject to foreign regulatory requirements that vary from country to country.
Additional approvals from foreign regulatory authorities may be required, and
there can be no assurance that the CombiMatrix group will be able to obtain
foreign marketing approvals on a timely basis, or at all, or that it will not be
required to incur significant costs in obtaining or maintaining foreign
regulatory approvals. For example, if the CombiMatrix group products are
marketed for clinical or diagnostic purposes in the European Union, the
CombiMatrix group will have to obtain the certificates required for the "CE"
mark to be affixed to the CombiMatrix group products for sales in European Union
member countries. The "CE" mark is a European Union symbol of adherence to
quality assurance standards and compliance with applicable European Union
directives and regulations.
-123-
JOINT VENTURES
In October 2001, CombiMatrix Corporation formed a joint venture with
Marubeni Japan, one of Japan's leading trading companies. The joint venture,
based in Tokyo, will focus on development and licensing opportunities for
CombiMatrix Corporation's biochip technology with pharmaceutical and
biotechnology companies in the Japanese market. Marubeni made an investment to
acquire a ten percent minority interest in the joint venture.
Prior to April 25, 2002, CombiMatrix Corporation owned 28.6% of Advanced
Material Sciences ("AMS") which in turn held an exclusive license for
CombiMatrix Corporation's microarray synthesis technology for the development
and discovery of advanced electronic materials for such purposes as fuel cell
catalysts. In consideration for this exclusive license, CombiMatrix Corporation
would share in the revenues earned by AMS for commercialization of these
discoveries based on CombiMatrix Corporation's microarray technology. The term
of this arrangement was 20 years. As the technology was being developed at AMS,
management realized that it was inefficient to build redundant infrastructure to
perform this research. Rather than build and buy new equipment and facilities to
conduct materials discovery, it was decided to utilize the existing
infrastructure at CombiMatrix Corporation to more efficiently and quickly
perform materials discovery research. On April 25, 2002, CombiMatrix Corporation
acquired Acacia's majority interest in AMS in consideration of 180,982 shares of
CombiMatrix Corporation's common stock. AMS is now being operated as a research
and development division within CombiMatrix Corporation.
MARKETING AND DISTRIBUTION
In July 2001, CombiMatrix Corporation entered into non-exclusive worldwide
license, supply, research and development agreements with Roche Diagnostics GmbH
("Roche"). These agreements were amended and restated in September 2002,
primarily to grant Roche manufacturing rights with respect to the products under
development in return for additional cash consideration under the agreements.
The revised agreements also make minor modifications to terms of the agreements
involving matters such as milestones, payments and technical specifications,
none of which we consider to be material. Such minor modifications are a
standard part of the research and development process and are routinely made in
development agreements. During the course of our relationship with Roche, since
the date of the original agreements, we have engaged in a continuous process of
monitoring and reevaluating the terms of our agreements, and have amended the
agreements in several respects to establish more meaningful goals, milestones
and timelines. The agreements are non-exclusive with respect to CombiMatrix
Corporation's core technology, meaning that CombiMatrix Corporation remains free
to license its core technology to third parties for applications in the
genomics, proteomics and other fields. The agreements contain exclusivity or
co-exclusivity provisions only with respect to the specific products being
co-developed for, and partially funded by, Roche pursuant to the agreements.
Under the terms of the revised agreements, it is contemplated that Roche
will co-develop, use, manufacture, market and distribute CombiMatrix
Corporation's biochips (microarrays) and related technology for rapid production
of customizable biochips. Additionally, CombiMatrix Corporation and Roche will
develop a platform technology, providing a range of standardized biochips for
use in important research applications. Roche has made and will continue to make
payments for the deliverables stipulated and for expanded license and
manufacturing rights.
The agreements provide for minimum payments by Roche to CombiMatrix
Corporation over the first three years, including milestone achievements,
payments for products, royalties and research and development projects.
Nevertheless, because our agreements with Roche contain provisions that would
allow Roche to terminate the agreements, the future payments by Roche to
CombiMatrix Corporation might never be realized. Since July 2001, CombiMatrix
Corporation has completed several milestones in its strategic alliance with
Roche including demonstration of several key performance metrics of its custom
in-situ microarray system.
In August 2001, CombiMatrix Corporation entered into a two-year license and
supply agreement with the National Aeronautics and Space Administration
("NASA"). The agreement has a two-year term and provides for the license,
purchase and use by the NASA Ames Research Center of CombiMatrix Corporation's
active biochips (microarrays) and related technology to conduct biological
research in terrestrial laboratories and in space. CombiMatrix Corporation does
not expect to derive significant revenue in the future from this agreement.
-124-
MANUFACTURING AND CUSTOMIZATION
The CombiMatrix group is developing automated, computer-directed
manufacturing processes for the synthesis of sequences of DNA, RNA, peptides or
small molecules in the virtual flasks on its biological array processors.
The CombiMatrix group's biological array processor manufacturing process
will involve:
o processing wafers of semiconductors manufactured by others into
individual devices and installing electrical contacts on the
semiconductor devices; and
o applying the porous reaction layer to the semiconductor devices.
The CombiMatrix group, or any entities with which the CombiMatrix group has
joint development efforts, will then customize its biological array processors
in response to customer orders by:
o synthesizing test materials in the virtual flasks on the biological
array processors using its synthesis module; and
o checking the quality of the customized biological array processors.
Initially, the CombiMatrix group plans to rely upon third-party
manufacturers to produce the semiconductors, chemical reagents and accessories
for its products. The CombiMatrix group intends to continue the outsourcing of
portions of its manufacturing process to subcontractors where the CombiMatrix
group determines it is in its best commercial interest.
Substantially all of the components and raw materials used in the
manufacture of the CombiMatrix group's products, including semiconductors and
reagents, are currently provided from a limited number of sources or in some
cases from a single source. Although the CombiMatrix group believes that
alternative sources for those components and raw materials are available, any
supply interruption in a sole-sourced component or raw material might result in
up to a several-month production delay and materially harm the CombiMatrix
group's ability to manufacture products until a new source of supply, if any,
could be located and qualified. In addition, an uncorrected impurity or
supplier's variation in a raw material, either unknown to the CombiMatrix group
or incompatible with its manufacturing process, could have a material adverse
effect on its ability to manufacture products. The CombiMatrix group may be
unable to find a sufficient alternative supply channel in a reasonable time
period, or on commercially reasonable terms, if at all. The CombiMatrix group
utilizes semiconductors made with a 3.0 micron fabrication process that is no
longer in wide use due to increased miniaturization of semiconductors. If the
CombiMatrix group is unable to achieve higher densities of test sites, it may
become difficult or more expensive for the CombiMatrix group to obtain
sufficient quantities of semiconductors as manufacturers phase out 3.0 micron
production capacity.
PATENTS, LICENSES AND FRANCHISES
The CombiMatrix group's primary patent strategy is to protect all aspects
of its biological array processor system, including the porous reaction layer,
the virtual flask technology, processes for designing capture probes, unique
properties of a protein-based biological array processor and business methods
for automating ordering, creating and manufacturing custom made biological array
processors. The CombiMatrix group's patent applications are divided by subject
matter into areas of: its core biological array processor technology; other
hardware for detection and manufacturing; software for designing, for example,
capture probes; and chemical compositions and processes.
CombiMatrix Corporation has 42 patent applications pending in the United
States and Europe. The CombiMatrix group's policy is to file patent applications
and to protect technology, inventions and improvements to inventions that are
commercially important to the development of its business.
-125-
In July 2000, CombiMatrix Corporation was granted U.S. Patent No.
6,093,302, which expires in July 2017, for its biochip microarray processor
system. This system enables quick and economical turnaround of custom-designed
microarrays for use in biological research. A microarray consists of a chemical
"virtual flask" located on the surface of a semiconductor chip containing
thousands of microarrays, which are separated from each other using special
solutions instead of physical barriers. Each microarray has electronic circuitry
that may be directed by a computer to construct a specified compound. The patent
covers CombiMatrix Corporation's core technology, which is a method for
producing microarrays by synthesizing biological materials on a
three-dimensional, active surface.
The CombiMatrix group seeks to protect its corporate identity with
trademarks and service marks. In addition its trademark strategy includes
protecting the identity and goodwill associated with its biological array
processor products. The CombiMatrix group purchases chemical reagents from
suppliers who are licensed under appropriate patent rights. It is its policy to
obtain licenses from patent holders if needed to practice its chemical
processes.
The CombiMatrix group's success will depend, in part, upon its ability to
obtain patents and maintain adequate protection of its intellectual property in
the United States and other countries. If it does not protect its intellectual
property adequately, competitors may be able to use its technologies and thereby
erode any competitive advantage that the CombiMatrix group may have. The laws of
some foreign countries do not protect proprietary rights to the same extent as
the laws of the United States, and many companies have encountered significant
problems in protecting their proprietary rights abroad. These problems can be
caused by the absence of rules and methods for defending intellectual property
rights.
The patent positions of companies developing tools for the biotechnology
and pharmaceutical industries, including the CombiMatrix group's patent
position, generally are uncertain and involve complex legal and factual
questions. The CombiMatrix group will be able to protect its proprietary rights
from unauthorized use by third parties only to the extent that its proprietary
technologies are covered by valid and enforceable patents or are effectively
maintained as trade secrets. The CombiMatrix group's existing patent and any
future patents it obtains may not be sufficiently broad to prevent others from
practicing its technologies or from developing competing products. There also is
risk that others may independently develop similar or alternative technologies
or design around its patented technologies. In addition, others may challenge or
invalidate the CombiMatrix group's patents, or its patents may fail to provide
it with any competitive advantage. Enforcing its intellectual property rights
may be difficult, costly and time consuming, and ultimately may not be
successful.
The CombiMatrix group also relies upon trade secret protection for its
confidential and proprietary information. It seeks to protect its proprietary
information by entering into confidentiality and invention disclosure and
transfer agreements with employees, collaborators and consultants. These
measures, however, may not provide adequate protection for the CombiMatrix
group's trade secrets or other proprietary information. Employees, collaborators
or consultants may still disclose its proprietary information, and the
CombiMatrix group may not be able to meaningfully protect its trade secrets. In
addition, others may independently develop substantially equivalent proprietary
information or techniques or otherwise gain access to its trade secrets.
The CombiMatrix group cannot assure you that any of its patent applications
will result in the issuance of any additional patents, that its patent
applications will have priority of invention or filing date over similar rights
of others, or that, if issued, any of its patents will offer protection against
its competitors. Additionally, the CombiMatrix group cannot assure you that any
patent issued to it will not be challenged, invalidated or circumvented in the
future or that the intellectual property rights it has created will provide a
competitive advantage. Litigation may be necessary to enforce its intellectual
property rights or to determine the enforceability, scope of protection, or
validity of the intellectual property rights of others.
COMPETITION
The CombiMatrix group expects to encounter competition in the area of
business opportunities from other entities having similar business objectives.
Many of these potential competitors possess financial, technical, human and
other resources greater than those of the CombiMatrix group. The CombiMatrix
group anticipates that it will face increased competition in the future as new
companies enter the market and advanced technologies become
-126-
available. In the life sciences industry, many competitors have more experience
in research and development than the CombiMatrix group. Technological advances
or entirely different approaches developed by one or more of its competitors
could render the CombiMatrix group's processes obsolete or uneconomical. The
existing approaches of competitors or new approaches or technology developed by
competitors may be more effective than those developed by the CombiMatrix group.
The CombiMatrix group is aware of other companies or companies with
divisions that have, or are developing, technologies for the SNP genotyping,
gene expression profiling and proteomic markets. The CombiMatrix group believes
that its primary competitors will be Abbott Laboratories, Affymetrix, Inc.,
Agilent Technologies, Inc., Bayer AG, Becton, Dickinson and Company, Ciphergen
Biosystems, Inc., Gene Logic Inc., Genometrix Incorporated, Hyseq Inc.,
Illumina, Inc., Incyte Genomics, Inc., Johnson & Johnson, Motorola, Inc.,
Nanogen, Inc., Orchid Biosciences, Inc., PE Biosystems, Protogene, Inc., Roche
Diagnostics GmbH, and Sequenom, Inc. However, the CombiMatrix group's market is
rapidly changing, and the CombiMatrix group expects to face additional
competition from new market entrants, new product developments and consolidation
of its existing competitors. Many of the CombiMatrix group's competitors have
existing strategic relationships with major pharmaceutical and biotechnology
companies, greater commercial experience and substantially greater financial and
personnel resources than it does. The CombiMatrix group expects new competitors
to emerge and the intensity of competition to increase in the future.
The CombiMatrix group believes that the principal competitive factors in
selling its products will be:
o the time required to engineer, produce and ship products;
o the speed and accuracy with which test results can be read and
interpreted;
o the density of testing devices;
o the cost and pricing of the installed base of competing products; and
o access to proprietary genetic databases.
The CombiMatrix group believes that it will be able to compete favorably
with regard to these factors even though it has competitors who currently
produce testing devices with higher densities than its proposed initial
products, and, initially, it will not offer its customers access to proprietary
genetic information.
RESEARCH, DEVELOPMENT AND ENGINEERING
The CombiMatrix group's research and development expenses excluding
non-cash stock compensation charges, were $5.0 million and $7.7 million and $2.7
million and $5.8 million for the three and six months ended June 30, 2002 and
2001, respectively, and $11.7 million, $8.8 million and $2.4 million in 2001,
2000 and 1999, respectively. None of these amounts includes the amortization of
deferred stock compensation expenses related to research and development. The
CombiMatrix group intends to invest aggressively in its proprietary technologies
through internal development and, to the extent available, licensing of
third-party technologies to increase and improve other characteristics of its
products. The CombiMatrix group also plans to continue to invest in improving
the cost-effectiveness of its products through further automation and improved
information technologies. The CombiMatrix group's future research and
development efforts may involve research conducted by the CombiMatrix group,
collaborations with other researchers and the acquisition of chemistries and
other technologies developed by universities and other academic institutions.
The CombiMatrix group is developing a variety of life sciences related
products and services. These industries are characterized by rapid technological
development. The CombiMatrix group believes that its future success will depend
in large part on its ability to continue to enhance its existing products and
services and to develop other products and services, which complement existing
ones. In order to respond to rapidly changing competitive and technological
conditions, the CombiMatrix group expects to continue to incur significant
research
-127-
and development expenses during the initial development phase of new products
and services, as well as on an ongoing basis.
There are four major development hurdles to our core technology platform,
three of which have been overcome, as described below:
o DESIGN AND FABRICATION OF SEMICONDUCTOR ARRAYS. The CombiMatrix group
has utilized common tools well known to the semiconductor industry
such as EDA software (electronic design automation), lithography
fabrication techniques, and other semiconductor processing methods to
fabricate a number of array designs that are utilized as the base
electronic component of its products. The CombiMatrix group continues
to utilize these tools to advance their designs in a manner similar to
semiconductor companies. The core functional needs of the devices have
been achieved in designing and building semiconductor arrays.
o DESIGN AND FABRICATION OF INSTRUMENTATION FOR SYNTHESIS OF DNA ON
ARRAYS AND THE ACTUAL SYNTHESIS OF DNA ON SUCH ARRAYS. In order to
produce bioarrays with in-situ synthesized DNA, the CombiMatrix group
designed and built unique instrumentation. Such instrumentation
incorporates standard electronic, mechanical and fluidic components,
as well as customized firmware and user interface software. These
prototype systems operate in a manner that allows the synthesis of DNA
on multiple arrays.
o DESIGN AND FABRICATION OF INSTRUMENTATION TO PERFORM ASSAYS ON ARRAYS
AS WELL AS TO MEASURE SUCH PERFORMANCE. Instruments commonly known as
Reader-Hybridizers have been designed and prototypes have been built
to automate the process of performing an assay on our bioarrays as
well as to measure the performance of the assay. These instruments
incorporate standard, electronic, mechanical, robotic, and fluidic
components as well as firmware and software to function.
o DEVELOPMENT OF A COST-EFFECTIVE, COMMERCIALLY VIABLE APPROACH TO
MANUFACTURE ARRAYS. As the CombiMatrix group moves forward to broad
commercialization of its technology platform, advanced manufacturing
techniques are being developed to provide the most reliable and
cost-effective approach to manufacture bioarrays, as well as to
develop products that are commercially viable. These methods will
utilize certain protocols (many of which are well known in the
manufacturing sector) including robotic automation as well as some
internally developed protocols. These processes are currently in
development.
GOVERNMENT GRANTS AND CONTRACTS
Government grants and contracts have allowed the CombiMatrix group to fund
certain internal scientific programs and exploratory research. The CombiMatrix
group retains ownership of all intellectual property and commercial rights
generated during these projects. The United States government, however, retains
a non-exclusive, non-transferable, paid-up license to practice the inventions
made with federal funds pursuant to applicable statutes and regulations. The
CombiMatrix group does not believe that the retained license will have any
impact on its ability to market its products. The CombiMatrix group does not
need government approval to enter into collaborations or other relationships
with third parties.
The CombiMatrix Corporation has been awarded two grants and two contracts
from the federal government in connection with its biological array processor
technology. In July 1999, the CombiMatrix Corporation was awarded a $60,000
Phase I Small Business Innovative Research ("SBIR") contract from the Department
of Defense to develop nanode array sensor microchips to enable simultaneous
detection of numerous chemical and biological warfare agents. Also in July 1999,
the CombiMatrix Corporation was awarded a $100,000 Phase I SBIR Department of
Energy grant to use the CombiMatrix Corporation's proprietary biochip technology
to develop microarrays of affinity probes for the analysis of gene products. In
January 2000, the CombiMatrix Corporation was awarded a $730,000 Phase II SBIR
Department of Defense contract for the use of its biochip technology to further
develop nanode array sensor microchips. The term of the Phase II SBIR Department
of Defense contract ends in July 2002. CombiMatrix Corporation expects to
recognize $91,000 in contract revenues in the third quarter of 2002. Upon
delivery of a prototype electrochemical biological detection system to the DOD
in the third quarter of 2002,
-128-
CombiMatrix Corporation will have completed its obligations under the Phase II
SBIR Department of Defense contract and as a result, expects to receive the
final payment under the contract in the third quarter of 2002. As such,
CombiMatrix Corporation will no longer receive grant revenues under the Phase II
SBIR Department of Defense contract after the third quarter of 2002. In February
2002, the CombiMatrix Corporation was awarded a six-month $100,000 Phase I
National Institutes of Health grant for the development of its protein biochip
technology, entitled "Self-Assembling Protein Microchips."
The CombiMatrix group will continue to pursue grants and contracts that
complement its research and development efforts.
MANAGEMENT
The management of the CombiMatrix group will consist of the following
individuals, each of whom is an officer of CombiMatrix Corporation:
NAME AGE POSITIONS WITH THE COMBIMATRIX GROUP
--------------------------- --- ----------------------------------------------------------------------------
Amit Kumar, Ph.D. 38 President and Chief Executive Officer
Donald D. Montgomery, Ph.D. 44 Senior Vice President and Chief Technology Officer
Warren G. Hargis 50 Senior Vice President and Chief Operating Officer
Scott R. Burell, CPA 37 Vice President of Finance and Treasurer
Jeffrey B. Oster, Ph.D. 49 Senior Vice President of Intellectual Property and Associate General Counsel
Edward M. Eadeh 51 Senior Vice President of Business Development
Brooke P. Anderson, Ph.D. 39 Vice President of Software Development
Brett L. Undem 33 Vice President of Investor Relations
Peter G. Edelman, Ph.D. 46 Vice President of Development
The following is biographical information and a brief description of the
capacities in which each of the above persons has served during the past five
years. Biographical information for Dr. Amit Kumar is set forth above under the
heading "Acacia Research Corporation - Business."
DONALD D. MONTGOMERY, PH.D. has been a Director since April 1996, the
CombiMatrix Corporation's Senior Vice President and Chief Technology Officer
since April 2000 and a member of the CombiMatrix Corporation's Scientific
Advisory Board since September 2000. From April 1996 to April 2000, Dr.
Montgomery was the CombiMatrix Corporation's Vice President of Research and
Development. From September 1995 to April 1996, Dr. Montgomery was an
entrepreneur engaged in private scientific research. Dr. Montgomery received an
A.B. from Grinnell College and a Ph.D. in chemistry from the California
Institute of Technology. Dr. Montgomery also performed post-doctoral work at the
Joint Institute for Laboratory Astrophysics in Boulder, Colorado.
WARREN G. HARGIS has been CombiMatrix Corporation's Chief Operating Officer
since February 2002. Mr. Hargis joined CombiMatrix Corporation in March 2000 as
Vice President of Human Resources. From March 1996 to March 2000, Mr. Hargis
served as the Director of Human Resources, International Operations and Global
Compensation for Sterling Diagnostic Imaging. From November 1979 to March 1996,
Mr. Hargis was employed by DuPont EI De Nemours & Co., serving in various
positions in the polymer products, petrochemicals, textile fabrics and imaging
systems departments, completing his career at DuPont as Manager of Human
Resources in the Medical Products Division. Mr. Hargis attended Lamar
University.
SCOTT R. BURELL, CPA, was promoted to Vice President of Finance of
CombiMatrix Corporation in November 2001. Prior to this, Mr. Burell had served
as Controller from the time he joined CombiMatrix Corporation in February 2001.
From May 1999 to February 2001, Mr. Burell was the controller for Network
Commerce, Inc., a publicly traded technology and information infrastructure
company located in Seattle. Prior to
-129-
this, Mr. Burell spent 9 years with Arthur Andersen's Audit and Business
Advisory practice in Seattle. Mr. Burell is a certified public accountant and
holds bachelor of science degrees in Accounting and Business Finance from
Central Washington University.
JEFFREY B. OSTER, PH.D. has been CombiMatrix Corporation's Senior Vice
President of Intellectual Property and Associate General Counsel since November
2000. From January 1998 to November 2000, Dr. Oster was a partner in the
Seattle-based law firm of Davis Wright Tremaine LLP, practicing intellectual
property law. From September 1996 to January 1998, Dr. Oster was the General
Counsel of Cytotine Networks, Inc., a pharmaceutical development company. From
October 1992 to September 1996, Dr. Oster was the General Counsel of Cell
Therapeutics Inc., a pharmaceutical development company. Dr. Oster received a
B.A. from Johns Hopkins University, a Ph.D. from the University of Pennsylvania,
and a J.D. from Rutgers Law School.
EDWARD M. EADEH has been CombiMatrix Corporation's Vice President of
International Business Development since May 2000. From August 1997 to September
1999, Mr. Eadeh was Vice President of Asia Pacific Sales for Sterling. From
February 1995 to August 1997, Mr. Eadeh was the Vice President of Asia Pacific
Sales for Polaroid Medical Imaging. Mr. Eadeh attended Wayne State University.
BROOKE P. ANDERSON, PH.D. has been CombiMatrix Corporation's Vice President
of Software Development since April 2000 and a member of the CombiMatrix
Corporation's Scientific Advisory Board since September 2000. From August 1997
to April 2000, Dr. Anderson served as the CombiMatrix Corporation's Director of
Engineering and, from its formation in October 1995 to September 2000, served as
a member of the CombiMatrix Corporation's board of directors. From October 1995
to January 1997, Dr. Anderson also served as its President. Prior to that time,
Dr. Anderson co-founded Acacia Research, and from January 1993 to August 1997,
Dr. Anderson served as Vice President, Research and Development of Acacia
Research. Dr. Anderson received a B.S.E. in nuclear engineering from the
University of Michigan and an M.S. in applied physics, and a Ph.D. in
computation and neural systems from the California Institute of Technology.
BRETT L. UNDEM joined Acacia Research as Vice President of Investor
Relations/Corporation Finance in June of 2000. He then transferred to
CombiMatrix Corporation in January 2001 and currently holds the title of Vice
President of Investor Relations. Mr. Undem was previously Vice President of
Canterbury Consulting, an institutional investment advisory firm, from 1998 to
2000. From 1993 to 1998, Mr. Undem was a Senior Consultant at Wurts &
Associates, a Los Angeles-based institutional investment-consulting firm. Mr.
Undem received a B.S. in finance from the University of Arizona and earned the
designation Certified Investment Management Analyst from the Wharton School of
Business.
PETER G. EDELMAN, PH.D. joined CombiMatrix Corporation in January 2002 as
Director, Process Development, and was promoted to Vice President of Development
in March 2002. Dr. Edelman previously served as Principal Scientist for
Confluent Surgical, Inc., an implantable medical device start-up company, from
1998 to 2002. From 1988 to 1998, Dr. Edelman worked in research and development
for Chiron Diagnostics (now Bayer Diagnostics) in Medfield, Massachusetts. Dr.
Edelman received a B.S. in chemistry from Bates College and a Ph.D. in polymer
chemistry from the University of Connecticut.
It is intended that the above named individuals will continue serving in
their existing CombiMatrix Corporation roles for the CombiMatrix group.
EMPLOYEES
As of November 1, 2002, the CombiMatrix group had 105 full-time employees,
19 of whom hold Ph.D. degrees and 77 of whom are engaged in full-time research
and development activities. The CombiMatrix group plans to expand its research
and development programs as well as corporate collaborations, and will hire
additional staff as these initiatives are implemented. The CombiMatrix group is
not a party to any collective bargaining agreement. It considers its employee
relations to be good.
The CombiMatrix group also makes selective use of paid consultants to
assist in solving specialized problems or providing particular services.
Consultants are used when the CombiMatrix group determines that it is
-130-
more economical than hiring an employee or where the best available services are
only available on a consulting basis. In addition to consultants, the
CombiMatrix group intends to utilize the services of university employees to
perform basic research that is useful to it. The CombiMatrix group believes that
this offers a cost-effective means of obtaining valuable information not
directly related to its core technology.
As the CombiMatrix group's business grows, it anticipates that it will be
required to selectively hire a certain number of chemists, biologists, engineers
and lab technicians as well as additional managerial, financial and clerical
employees. The market for scientists and engineers is competitive and there can
be no assurance that the CombiMatrix group will be able to hire all of the
skilled employees it needs or that it will be able to reach its desired staffing
levels within a reasonable period of time.
PROPERTIES
CombiMatrix Corporation leases office and laboratory space totaling
approximately 90,111 square feet located north of Seattle, Washington, under a
lease agreement that expires in December 2008. Presently, the CombiMatrix group
is not seeking any additional facilities.
The CombiMatrix group believes that its facility meets its office,
laboratory and manufacturing requirements for the foreseeable future.
ENVIRONMENTAL MATTERS
The operations of the CombiMatrix group involve the use, transportation,
storage and disposal of hazardous substances, and as a result, these
subsidiaries are subject to environmental and health and safety laws and
regulations. Although the CombiMatrix group currently use fairly small
quantities of hazardous substances, as it expands its operations, its use of
hazardous substances will likely increase and lead to additional and more
stringent requirements. The cost of complying with these and any future
environmental regulations could be substantial. In addition, if the CombiMatrix
group fails to comply with environmental laws and regulations, or releases any
hazardous substance into the environment, the CombiMatrix group could be exposed
to substantial liability in the form of fines, penalties, remediation costs and
other damages, or could suffer a curtailment or shut down of its operations.
INTERNET
Because the CombiMatrix group or its partners plan to utilize the Internet
for product ordering as well as transmission of test data, it will be subject to
government regulation concerning Internet usage and electronic commerce. The
CombiMatrix group expects that state, federal and foreign agencies will adopt
and modify regulations covering issues such as user and data privacy, taxation
of products provided over the Internet, the use and export of cryptographic
technology and content and quality of products. For example, the European Union
has adopted a privacy directive that regulates the collection and use of
information. The globalization of Internet commerce may be harmed by these and
similar regulations since the European Union privacy directive prohibits
transmission of certain information outside the European Union unless the
receiving country has enacted individual privacy protection laws at least as
strong as those enacted by the European Union privacy directive. In July 2000
the European Union issued a formal opinion permitting United States entities to
transfer data to and from its countries if the United States entity adheres to
safe harbor and privacy principles.
The taxation of commerce activities in connection with the Internet has not
been established, may change in the future and may vary from jurisdiction to
jurisdiction. For example, a number of proposals have been made at the local,
state, national and international levels that would impose additional taxes on
the sale of products over the Internet. These proposals, if adopted, could
substantially impair the growth of electronic commerce and could subject the
CombiMatrix group's business activities to taxation unless it persuades
customers to use their own intranet computer capabilities. Moreover, if any
state or country were to assert successfully that the CombiMatrix group should
collect sales or other taxes on the exchange of products over the Internet, its
customers may refuse to use its services through the Internet.
-131-
LEGAL PROCEEDINGS
On September 30, 2002, CombiMatrix Corporation and Dr. Montgomery entered
into a settlement agreement with Nanogen to settle all pending litigation
between the parties. Pursuant to the terms of the settlement agreement, Nanogen
dismissed with prejudice its lawsuit against CombiMatrix Corporation and Dr.
Montgomery. In return, CombiMatrix Corporation agreed to pay Nanogen $500,000
within 30 days of the settlement and an additional $500,000 within one year of
the settlement. CombiMatrix Corporation also agreed to make quarterly payments
to Nanogen equal to 12.5% of total sales of products developed by CombiMatrix
Corporation and its affiliates and based on the patents that had been in dispute
in the litigation, up to an annual maximum of $1,500,000. The minimum quarterly
payments under the settlement agreement will be $37,500 per quarter for the
period from October 1, 2003 through October 1, 2004, and $25,000 per quarter
thereafter until the patents expire. Also pursuant to the settlement agreement,
CombiMatrix Corporation agreed to issue to Nanogen 4,016,346 shares, or 17.5% of
its outstanding shares post-issuance, subject to antidilution provisions under
specified circumstances, including the exercise of outstanding options and
warrants and issuances of additional capital stock of CombiMatrix Corporation,
for a period of up to three years.
-132-
ACACIA TECHNOLOGIES GROUP
(A DIVISION OF ACACIA RESEARCH CORPORATION)
BUSINESS
The Acacia Technologies group is principally comprised of Soundview
Technologies Incorporated ("Soundview Technologies"), Acacia Media Technologies
Corporation ("Acacia Media Technologies"), formerly Greenwich Information
Technologies LLC, and includes all corporate assets and liabilities and related
transactions of Acacia Research that relate to its media technology businesses.
Both Soundview Technologies and Acacia Media Technologies are wholly-owned
subsidiaries of Acacia Research.
Soundview Technologies was incorporated in March 1996 under the laws of the
State of Delaware. Soundview Technologies has acquired and is developing
intellectual property in the telecommunications field, including audio and video
blanking systems, also known as V-chip technology, which it licenses to
television manufacturers. In March 1998, the Federal Communications Commission
("FCC") approved the television guidelines rating system, as well as the V-chip
technical standards. Soundview Technologies owns the exclusive right and title
to U.S. Patent No. 4,554,584, which describes a method for implementing the
V-chip system in parallel with the existing closed-captioning circuits already
in place in televisions. This patent expires in July 2003.
Acacia Media Technologies was formed as a limited liability company under
the laws of the State of Delaware in 1996 and converted to become a Delaware
corporation in 2001. Acacia Media Technologies owns a worldwide portfolio of
pioneering patents relating to audio and video transmission and receiving
systems, commonly known as audio-on-demand and video-on-demand, used for
distributing content via various methods including computer networks, cable
television systems and direct broadcasting satellite systems. Audio-on-demand
offers similar functionality with music or other audio content. Video-on-demand
allows television viewers to order movies or other programs from a remote file
server and to view them at home with full VCR functionality, including pause,
fast-forward and reverse. Information-on-demand is one of the primary
applications of interactive entertainment.
The Acacia Technologies group is responsible for the development, licensing
and protection of its intellectual property and proprietary technologies and
continues to pursue both licensing and strategic business alliances with leading
companies in the rapidly growing media technologies industry.
MARKET OVERVIEW
SOUNDVIEW TECHNOLOGIES' MARKETS
The 1996 Telecommunications Act requires all television manufacturers to
include V-chip technology in all new television sets with screens 13 inches or
larger sold in the United States. Approximately 26.0 million new televisions are
sold each year in the United States. The Acacia Technologies group's V-chip
technology is a cost-effective method for V-chip implementation that is
compatible with components currently in use in televisions. The Acacia
Technologies group's V-chip technology uses a television's receiver circuitry to
decode content rating information sent as part of the broadcast signal. By
utilizing the broadcast signal that carries closed-caption data, the Acacia
Technologies group's technology is relatively inexpensive to implement. The
industry and its trade association adopted this method as the technical standard
for new television sets sold in the United States that are required to have
V-chip technology. There may be other patents that pertain to the V-chip
technology.
ACACIA MEDIA TECHNOLOGIES' MARKETS
The market for audio and video transmission and receiving systems, such as
audio-on-demand and video-on-demand, continues to grow inside the United States
and abroad. The technology underlying the infrastructure required to deliver
digitized signals to consumers continues to rapidly improve, making the
expansion of the infrastructure more economical, and increasing the
opportunities for the commercialization of the Acacia Technologies group's audio
and video-on-demand patent portfolio. It is estimated that there are currently
17 million digital satellite customers in the United States and 9 million
outside the United States. There are an estimated 13
-133-
million digital cable subscribers in the United States, and this number is
anticipated to increase to over 40 million by 2005. It is also estimated that
there are currently 11 million broadband Internet customers in the United
States, and this number is anticipated to increase significantly by 2005.
Interactive services such as video-on-demand are being rolled out to these
digital customers, and it is anticipated that revenues for the video-on-demand
industry will reach $3 billion by 2005. The Acacia Technologies group will
continue to pursue both licensing and strategic business alliances with leading
companies in the rapidly growing media technologies industry.
MARKETING AND DISTRIBUTION
V-CHIP TECHNOLOGY
The Acacia Technologies group's strategy has been to license television
manufacturers that are utilizing the V-chip technology. Its strategy has been to
license to major manufacturers with the largest potential licensing fees first,
and then to focus on smaller or less well-known manufacturers. By successfully
licensing to the largest manufacturers first, Acacia Technologies believes that
it has established strong precedent with respect to its intellectual property
rights. This precedent has enabled the Acacia Technologies group to deal
effectively with additional manufacturers and to avoid, in some circumstances,
costly negotiations or litigation.
During the past year, the Acacia Technologies group has licensed 12 major
television manufactures including Philips, Hitachi, Pioneer, Samsung, Sanyo,
Funai, LG Electronics, Thomson, JVC, Daewoo, Orion, and Matsushita. Litigation
for patent infringement and anti-trust violations is pending against Sony,
Mitsubishi, Sharp and Toshiba. These 12 licensees and 4 litigants manufacture
most of the television sets sold in the United States. These license agreements
contain provisions in some cases for lump sum payments, in other cases
provisions for ongoing royalty payments or a combination of both.
The Acacia Technologies group has identified several additional companies
that also manufacture televisions for sale in the U.S. and it intends to
continue to attempt to enter into licenses with these companies. The Acacia
Technologies group expects to enter into licenses with these companies, but may
initiate additional litigation against these companies if they use Acacia
Technologies' V-Chip technology without a license. The Acacia Technologies
group's success in entering into licenses or litigation with these companies
may, however, be impacted by developments in its existing litigation. In pending
litigation against Sony, Mitsubishi, Sharp and Toshiba, the court in September
2002 ruled that the defendants had not infringed the V-chip patent. While the
Acacia Technologies group is currently exploring strategies in connection with
this ruling and intends to appeal, litigation is inherently uncertain and there
can be no assurance that the Acacia Technologies group will be successful in any
such appeal. As a result of this ruling, in October 2002 Soundview Technologies
voluntarily filed to dismiss, without prejudice, its pending action for
infringement of the V-chip patent against seventeen television manufacturers. By
voluntarily dismissing this lawsuit at this time, Soundview Technologies will be
able to refile the action in the event that a favorable final decision is
reached with respect to the issue of infringement in the lawsuit against Sony,
Mitsubishi, Sharp and Toshiba. Acacia Technologies' V-chip patent expires in
July 2003.
DIGITAL MEDIA TRANSMISSION TECHNOLOGY
Streaming and audio/video on demand refers to technology that permits
viewers or listeners to experience on-demand digital audio and video. In order
for streaming and audio/video on demand content to be transmitted, it must be
digitized, compressed and encrypted using software. The digitized content is
then stored by the originator or a content aggregator on a digital server. Upon
request by the end user, the digitized content is sent via cable, satellite, the
Internet, or radio transmission to a receiver. The receiver is usually a
computer, set top box, radio, or other portable hand held device which plays,
pauses, rewinds, and fast forwards the content at the discretion of the user.
Digital Media Transmission ("DMT") technology is a broad technology
covering the process of digitizing, encrypting, compressing, storing,
transmitting, receiving and playing back audio and/or video content. The
technology is supported by five issued U.S. Patents consisting of 137 claims,
and seventeen international patents. The DMT technology is developed and can be
used in services commonly referred to as video-on-demand, audio-on-demand, and
streaming media. As these types of services continue to be introduced to the
marketplace, DMT is
-134-
expected to be utilized with increasing frequency. There may be other patents
held by third parties that pertain to the DMT technology.
Acacia Technologies group's DMT technology has the potential to be utilized
by companies worldwide engaged in the digitization, encryption, storage,
transmission, receipt, and playback of digital content. Digital satellite
television has been perhaps the fastest growing medium for transmission of
digitized content. Cable companies are seeking to convert their existing
customers to digital formats to compete with satellite. Broadband Internet
service is expanding throughout the United States for the delivery of digital
entertainment services to the computer.
Acacia Technologies group has identified entities whose operations it
believes may infringe upon its DMT technology and other potential licensees that
may use its DMT technology involved in this process including cable companies,
satellite companies, DSL providers, fiber network providers, server
manufacturers, content delivery networks, consumer electronics companies,
corporate webcasters, interactive gaming companies, encoder application vendors,
software manufacturers, adult entertainment companies, and computer
manufacturers, all on a worldwide basis.
Acacia Technologies group intends to engage in a worldwide licensing
program based upon the adoption rates and uses of its DMT technology. Acacia
Technologies group believes that current non-licensed users of its DMT
technology infringe upon its patented DMT technology. Since Acacia Technologies
group's acquisition in 2001 of the remaining ownership interests in Acacia Media
Technologies Corporation, the entity that owns the DMT technology, it has worked
to identify entities that may infringe on the DMT technology. Acacia
Technologies group intends to pursue licensing arrangements with such entities,
but may initiate litigation in the event that users of its DMT technology refuse
to obtain a license with respect to its patented technology. Acacia Technologies
group has not entered into licensing agreements with respect to the DMT
technology to date. Acacia Technologies group's digital media transmission
patent portfolio expires in 2011 in the U.S. and in 2012 in international
markets.
PATENTS, LICENSES AND FRANCHISES
The Acacia Technologies group's patent that describes a method for
implementing the V-chip system in parallel with the existing closed-captioning
circuits already in place in televisions, was issued in November 1985 and
expires in July 2003. In April 1998, the U.S. Patent and Trademark Office issued
a reexamination certificate confirming the approval of all existing and newly
added claims of its issued patent. The reexamination was requested by Soundview
Technologies in August 1996 to confirm the strength of its patent in light of
other existing patents. Over 30 new prior art references were introduced and
examined during the process, which took more than eighteen months for the Patent
Office to complete. As a result, patentability of all original claims as issued
was confirmed and 17 new claims more specific to the V-chip implementation were
granted.
The Acacia Technologies group owns five issued U.S. patents relating to
audio and video transmission and receiving systems, commonly known as
audio-on-demand and video-on-demand, used for distributing content via various
methods as follows: U.S. Patent No. 5,132,992, U.S. Patent No. 5,253,275, U.S.
Patent No. 5,550,863, U.S. Patent No. 6,002,720 and U.S. Patent No. 6,144,702.
In addition, the Acacia Technologies group owns seventeen foreign patents also
relating to audio and video transmission and receiving systems technology.
Foreign rights include a patent granted in Mexico, a patent granted by the
European Patent Office covering Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Italy, Luxembourg, Monaco, the Netherlands, Spain, Sweden,
Switzerland and the United Kingdom, and a patent application pending in Japan.
Those patents that have already been issued and granted were issued or granted
during the past nine years, the earliest of which will expire in 2011. The
Acacia Technologies group is pursuing business opportunities with possible
providers of information-on-demand systems and others involved in supplying
related information-on-demand services.
REGULATORY MATTERS
The Acacia Technologies group markets and licenses technologies relating to
audio-on-demand and video-on-demand. These technologies can be used to transmit
content by several means including satellite, cable and telecommunications
systems. The satellite, cable and telecommunications industries are subject to
federal regulation, including Federal Communications Commission ("FCC")
licensing and other requirements. These
-135-
industries are also often subject to extensive regulation by local and state
authorities. While most satellite, cable and telecommunication industry
regulations do not apply directly to the Acacia Technologies group, they affect
programming distributors, one of the large potential customers for the
technologies covered by the Acacia Technologies group patent portfolio. The
Acacia Technologies group monitors pending legislation and administrative
proceedings to ascertain relevance, analyze impact and develop strategies
regarding regulatory trends and developments within these industries.
Federal law requires cable operators to reserve up to one-third of a
system's channel capacity for local commercial television stations that have
elected must-carry status. In addition, a cable system is generally required to
carry local non-commercial television stations. The FCC has also implemented
comparable rules for satellite carriers requiring that if a satellite system
carries one local broadcast station in a local market pursuant to a royalty-free
license granted under the Satellite Home Viewer Improvement Act of 1999, then it
must carry all local broadcast stations in that market. To meet these
requirements, some cable and satellite systems must decide which programming
services to keep and which to remove in order to make space available for local
television stations. These must-carry requirements may impact the Acacia
Technologies group's information-on-demand and streaming media business by
causing cable and satellite systems operators to reduce the number of channels
on their systems that would have used technologies covered by Acacia
Technologies group's patent portfolio.
On January 18, 2001, the FCC issued a Notice of Inquiry ("NOI") concerning
interactive television. The NOI raises a series of questions that suggest that
cable systems might be regarded as essential, open platforms of spectrum for
non-discriminatory third-party use, rather than facilities-based providers
competing in a wider market. Interactive television is a service so new that the
FCC has difficulty defining it, but the FCC states that it considers interactive
television to embrace at least electronic program guides, interactive video
content, and supplementary signals that wrap around video and provide additional
content or services. The NOI seeks comments on the nature of interactive
television (e.g., what is it, who will provide it, how will it be provided, what
are the business models for its provision), and whether cable systems will be a
"superior platform" for the provision of interactive television. Although the
NOI cannot lead directly to rules, it asks very detailed questions all arising
from a common regulatory premise: that cable operations who are affiliated with
interactive television providers should not be permitted to "discriminate" in
favor of their own interactive television services with respect to spectrum
usage; and that interactive television providers affiliated with cable operators
may need to be subjected to equivalent rules of non-discrimination so that they
may not obtain leverage from any exclusive arrangement they would otherwise
negotiate with popular programmers. The outcome of the NOI will largely
determine whether there will be subsequent FCC regulations for the interactive
television industry. As of March 19, 2002, the FCC had not yet proposed any new
regulations as a result of the NOI. Any regulation of this industry could impact
the Acacia Technologies group's information-on-demand and streaming media
business by limiting the growth of the market for these technologies or
regulating their licensing, but at this time, it is too speculative to determine
what those rules or their impact may be.
COMPETITION
The Acacia Technologies group expects to encounter competition in the area
of business opportunities from other entities having similar business
objectives. Many of these potential competitors possess financial, technical,
human and other resources greater than those of the Acacia Technologies group.
The Acacia Technologies group anticipates that it will face increased
competition in the future as new companies enter the market and advanced
technologies become available.
Other companies may develop competing technologies that offer better or
less expensive alternatives to the V-chip technology and/or the Acacia
Technologies group's audio-on-demand and video-on-demand technology. Many
potential competitors, including television manufacturers and other media
technology companies, have significantly greater resources. Technological
advances or entirely different approaches developed by one or more of its
competitors could render Acacia Technologies group's technologies obsolete or
uneconomical.
-136-
MANAGEMENT
The Acacia Technologies group's senior management will consist of the
following individuals:
NAME AGE POSITIONS WITH THE ACACIA TECHNOLOGIES GROUP
------------------- --- ---------------------------------------------------------------------------------------------------
Paul R. Ryan 57 Chairman and Chief Executive Officer - Acacia Media Technologies Corporation and Chairman Soundview
Technologies Incorporated
Robert L. Harris II 44 President - Acacia Media Technologies Corporation and Chief Executive Officer Soundview
Technologies Incorporated
Robert A. Berman 39 Senior Vice President, Business Development - Acacia Media Technologies Corporation and President
Soundview Technologies Incorporated
Clayton J. Haynes 33 Chief Financial Officer - Acacia Media Technologies Corporation and Soundview Technologies
Incorporated
Robert B. Stewart 36 Senior Vice President, Corporate Finance - Acacia Media Technologies Corporation
Roy J. Mankovitz 61 Senior Vice President, Intellectual Property - Acacia Media Technologies Corporation
Andrew H. Duncan 37 Vice President, Business Development - Acacia Media Technologies Corporation
John H. Roop 52 Vice President, Engineering - Acacia Media Technologies Corporation
Alejandro Magana 47 Vice President, International Licensing - Acacia Media Technologies Corporation
The following is biographical information and a brief description of the
capacities in which each of the above persons has served during the past five
years. Biographical information on Messrs. Ryan, Harris and Haynes is set forth
on pages 110 and 111 under "Acacia Research Corporation--Business."
ROBERT A. BERMAN joined Acacia Research in 2000 and was named Senior Vice
President and General Counsel in February 2001. He is also the President of
Soundview Technologies. Mr. Berman has extensive licensing and business
development experience with media technology companies, and held senior
positions at National Media Corporation from 1997 to 1999 and at QVC from 1993
to 1997. He practiced law at the Philadelphia law firm of Blank, Rome, Comisky
and McCauley from 1989 to 1993. Mr. Berman received a B.S. from the University
of Pennsylvania's Wharton School in 1985, and a J.D. from Northwestern Law
School in 1989.
ROBERT B. STEWART joined Acacia Research in 1997 and is responsible for
corporate finance and investor relations. He also leads the company's initiative
to raise external capital for Acacia's affiliate companies. From 1995 to 1997,
Mr. Stewart was President of Macallan, Dunhill & Associates, a registered
investment advisor and general partner of a private investment fund. Mr. Stewart
has a Bachelors degree in Economics from the University of Colorado/Boulder.
ROY J. MANKOVITZ has been Senior Vice President, Intellectual Property of
the Acacia Media Technologies Corporation since December 2001. Mr. Mankovitz is
best known for his former position as a Director, and Corporate Counsel,
Intellectual Property of Gemstar - TV Guide International ("Gemstar"). Mr.
Mankovitz was with Gemstar from 1991 to 1998, where he was responsible for the
worldwide patent, trademark and copyright program, including technology
licensing, litigation, strategic alliances and the establishment, acquisition
and protection of intellectual property rights. He was also a member of the
research and development group for new product development and a named inventor
of more than two-dozen United States and foreign patents assigned to Gemstar.
Prior to Gemstar, Mr. Mankovitz was a member of the law firm Christie, Parker
and Hale, LLP where he was responsible for intellectual property prosecution,
litigation support, infringement and validity studies, and client counseling for
electronics companies, including Gemstar, Samsung and Fujitsu. Mr. holds a B.S.
in Electrical Engineering from Columbia University and a J.D. from the
University at La Verne, Los Angeles College of Law.
ANDREW H. DUNCAN has been Vice President, Business Development of the
Acacia Media Technologies Corporation since February 2002. Mr. Duncan was
formerly Vice President, Consumer Electronics of Gemstar - TV Guide
International with direct reporting responsibility to the CEO. Mr. Duncan was
with Gemstar from 1994 to
-137-
2001, where he was responsible for licensing and marketing of the highly
successful VCR Plus+ and Electronic Program Guide. At Gemstar, he developed and
controlled licensing and marketing policy with all major consumer electronic
manufacturers worldwide, including Sony, Philips and RCA. Prior to Gemstar, Mr.
Duncan was European Marketing and Product Manager for Thomson Multimedia
(formerly RCA/GE in the United States) where he was responsible for that
company's consumer electronics multi-brand business across Europe. Mr. Duncan
holds and honors degree in chemistry from Nottingham University and diplomas in
marketing and direct marketing from London University (Kings College).
JOHN ROOP has been Vice President, Engineering of Acacia Media Technologies
since March 2002. Since 1995, Mr. Roop has acted as a non-testifying expert
witness as a technology consultant in a number of high value, media technology
intellectual property litigations. Mr. Roop was with StarSight Telecast, Inc.
from 1992 to 1995 where he held the positions of Senior Vice President,
Technology and Development, and Vice President, Engineering. He has also
previously held the positions of Director of Engineering of InSight Telecast,
Inc., Vice President of Engineering of VSAT Systems, Inc., and Director of Data
Communications of Telcom General Corp. Mr. Roop holds a B.S. in Electrical
Engineering from the University of California, Berkeley.
ALEJANDRO MAGANA has been Vice President, International Licensing since
June 2002. Most recently, Mr. Magana was a consultant for international and
domestic companies, including Gemstar-TV Guide, where he negotiated and
finalized contracts with media companies and cable operators in Mexico and Latin
America. Mr. Magana was Vice President of Business Development with Grupo
Televisa from 1987 to 1997, where he was responsible for joint ventures and
strategic alliances worldwide. Mr. Magana also served as a member of the Board
of Directors for several companies owned by Grupo Televisa and initiated the
Consumer Products Division of Grupo Televisa.
EMPLOYEES
As of November 1, 2002, the Acacia Technologies group had 12 full-time
employees. None of the companies included in the Acacia Technologies group is a
party to any collective bargaining agreement. The Acacia Technologies group
considers its employee relations to be good.
PROPERTIES
The Acacia Technologies group operates out of facilities leased by Acacia
Research, consisting of approximately 7,143 square feet of office space in
Newport Beach, California, under a lease agreement that expires in February
2007. Presently, the Acacia Technologies group is not seeking any additional
facilities.
LEGAL PROCEEDINGS
In 2000, Soundview Technologies filed a federal patent infringement and
antitrust lawsuit against certain television manufacturers, the Consumer
Electronics Manufacturers Association and the Electronics Industries Alliance
d/b/a/ Consumer Electronics Association. In its lawsuit now pending before the
United States District Court for the District of Connecticut, Soundview
Technologies alleges that television sets fitted with V-chips and sold in the
United States infringe Soundview Technologies' patent. Additionally, Soundview
Technologies alleges that the Consumer Electronics Manufacturers Association has
induced infringement of Soundview Technologies' patent and that the defendants
have violated the federal Clayton and Sherman Antitrust Acts by engaging in
collusive attempts to prevent others in the electronics and television
broadcasting industries from entering into licensing agreements with Soundview
Technologies. Soundview Technologies is seeking monetary damages, an injunction
preventing unlicensed use of its patented technology and other remedies. In
September 2002, the court granted a motion for summary judgment filed by the
defendants, ruling that the defendants have not infringed on Soundview
Technologies' patent. While we are currently exploring strategies in response to
this ruling and intend to appeal it, litigation is inherently uncertain and we
can give no assurance that we will be successful in any such appeal.
In August 2002, Soundview Technologies filed a federal patent infringement
lawsuit against seventeen television manufacturers in the United States District
Court for the District of Nevada. In this lawsuit, Soundview
-138-
alleges that television sets fitted with V-chips and sold in the United States
infringe Soundview Technologies' patent. As a result of the summary judgment
ruling in the case before the United States District Court for the District of
Connecticut, in October 2002, Soundview Technologies voluntarily filed to
dismiss, without prejudice, the Nevada infringement lawsuit. By voluntarily
dismissing this lawsuit at this time, Soundview Technologies will be able to
refile the action in the event that a favorable final decision is reached with
respect to the issue of infringement in the Connecticut lawsuit.
During 2001, Soundview Technologies executed separate settlement and/or
license agreements with Samsung Electronics, Hitachi America, Ltd., LG
Electronics, Inc., Funai Electric Co., Ltd., Daewoo Electronics Corporation of
America, Sanyo Manufacturing Corporation, Thomson Multimedia, Inc., JVC Americas
Corporation, MatsushitElectric Industrial Co., Ltd. and Orion Electric Co., Ltd.
In addition, Soundview Technologies settled its lawsuits with Pioneer
Electronics (USA) Incorporated, an affiliate of Pioneer Corporation, and
received payments from Philips Electronics North America Corporation pursuant to
a settlement and license agreement signed in December 2000. Certain of these
license agreements constitute settlements of patent infringement litigation
brought by Soundview Technologies.
As of December 31, 2001, the Acacia Technologies group received license fee
payments from television manufacturers totaling $25.6 million and granted
non-exclusive licenses of Soundview Technologies' U.S. Patent No. 4,554,584 to
the respective television manufacturers. Certain of the settlement and license
agreements provide for future royalty payments to Soundview Technologies. The
Acacia Technologies group received and recognized as revenue $2.4 million of the
license fee payments in the first quarter of 2001, $10.0 million of the license
fee payments in the second quarter of 2001, $10.7 million of the license fee
payments in the third quarter of 2001 and $1.0 million of the license fee
payments in the fourth quarter of 2001. License fee payments received during
2001 totaling $1.5 million are included in deferred revenues at December 31,
2001 pursuant to the terms of the respective agreements.
-139-
ACACIA RESEARCH CORPORATION MANAGEMENT'S DISCUSSION AND ANALYSIS
GENERAL
Acacia Research develops, licenses and provides products for the media
technology and life science sectors. Acacia Research's media technologies and
life sciences businesses are referred to as the "Acacia Technologies group" and
the "CombiMatrix group," respectively. Acacia Research licenses its V-chip
technology to television manufacturers and owns pioneering technology for
digital streaming and audio and video-on-demand. We will continue to pursue both
licensing and strategic business alliances with leading companies in the rapidly
growing media technologies industry. Acacia Research's core technology
opportunity in the life science sector has been developed through our
majority-owned subsidiary, CombiMatrix Corporation, which is developing a
proprietary system for rapid, cost competitive creation of DNA and other
compounds on a programmable semiconductor chip.
In the first and second quarters of 2002, our financial condition and
results of operations were highlighted by our majority owned subsidiary,
CombiMatrix Corporation, receiving $413,000 in grant and contract revenues,
including $182,000 in grant revenue resulting from continuing performance under
its Phase II Small Business Innovative Research Department of Defense contract,
$141,000 in one-time contract research and development revenues and $90,000 in
revenue related to performance under its Phase I National Institutes of Health
grant. In addition, during the six months ended June 30, 2002, our media
technologies group operating activities were highlighted by the continued
building of its executive management team, including the hiring of key media
technology and intellectual property industry experts that will be responsible
for the development, licensing and protection of the Acacia Technologies group's
intellectual property and proprietary technologies, as well as the pursuit of
both licensing and strategic business alliances with leading companies in the
growing media technologies industry.
In 2001, our financial condition and results of operations were highlighted
by the receipt of $25.6 million in payments from the licensing of our television
V-chip technology, and $6.4 million received by CombiMatrix Corporation pursuant
to separate license, supply and research and development agreements with Roche
Diagnostics GmbH ("Roche") and the National Aeronautics and Space Administration
("NASA") and continued performance under its Phase II SBIR contract with the
U.S. Department of Defense. In addition, CombiMatrix Corporation continued its
expansion of research and development activities in 2001. In 2000, our financial
condition and results of operations were highlighted primarily by the continued
expansion of research and development and the building of the management team at
CombiMatrix Corporation. In 1999, our financial condition and results of
operations were highlighted primarily by the investment in our subsidiary,
Soundbreak.com, and the expansion associated with CombiMatrix Corporation's
research and development. In the following discussion and analysis, the
period-to-period comparisons must be viewed in light of the impact that the
acquisition and disposition of securities of various business interests has had
on our financial condition and results of operations.
During 2001, we began to receive significant payments from the licensing of
our television V-chip technology to television manufacturers. In addition,
CombiMatrix Corporation began to receive significant payments from its strategic
partners and licensees. However, to date, our subsidiary companies have relied
primarily upon selling equity securities, including sales to and loans from us,
to generate the funds needed to finance the implementation of their plans of
operation. Our subsidiary companies may be required to obtain additional
financing through bank borrowings, debt or equity financings or otherwise, which
would require us to make additional investments or face a dilution of our equity
interests.
We cannot assure you that we will not encounter unforeseen difficulties
that may deplete our capital resources more rapidly than anticipated. Any
efforts to seek additional funds could be made through equity, debt or other
external financings; however, we cannot guarantee that additional funding will
be available on favorable terms, if at all. If we fail to obtain additional
funding when needed for us and our subsidiary companies, we may not be able to
execute our business plans and our business may suffer.
-140-
ACQUISITION AND OPERATING ACTIVITIES
During 2001, we continued to significantly increase financing, acquisition
and operating activities while receiving significant payments from our media
technologies licensing arrangements and from our life science strategic partners
and licensees. We intend to continue to pursue both licensing and strategic
business alliances with leading companies in the rapidly growing media
technologies industry. Additionally, we intend to continue to invest in growing
our life science businesses by identifying and developing opportunities in the
life science sector that will be created by commercializing the new biochip
technology of CombiMatrix Corporation and other related investments in that
sector. Financing activities are listed in the "Liquidity and Capital Resources"
section that follows. Highlights of the acquisition and operating activities for
the six months ended June 30, 2002 and the year ended December 31, 2001 include:
SECOND QUARTER 2002:
In April 2002, CombiMatrix Corporation's Japanese subsidiary entered into a
technology access and purchase agreement in Japan with the Computational Biology
Research Center ("CBRC"), a division of the Japanese National Institute of
Advanced Industrial Science and Technology. CBRC has purchased and installed a
CombiMatrix Corporation gene chip synthesizer and entered into a multi-year
agreement to purchase blank chips that will be used to synthesize custom gene
chips. The agreement also gives CBRC access to CombiMatrix Corporation's set of
informatics tools to help in its efforts to expand biotechnology related
businesses in Japan.
On April 25, 2002, CombiMatrix Corporation purchased our interest in
Advanced Material Sciences, a development stage company that holds the exclusive
license for CombiMatrix Corporation's biological array processor technology in
certain fields of material science. CombiMatrix Corporation issued 180,982
shares of its common stock to us in exchange for our 58% interest in Advanced
Material Sciences. As a result of the sale of our interest in Advanced Material
Sciences, CombiMatrix Corporation currently owns 87% of Advanced Material
Sciences and the remaining interests are owned by unaffiliated entities.
In May 2002, CombiMatrix Corporation's Japanese subsidiary entered into a
technology access collaboration and purchasing agreement with the Genome Science
Laboratory at the Research Center for Advanced Science and Technology ("RCAST")
of the University of Tokyo. Under the terms of the agreement, RCAST has
installed a CombiMatrix Corporation gene chip synthesizer and entered into a
multi-year agreement to purchase blank chips that will be used in the
development of diagnostic microarray applications, drug lead development and
target gene identification for the drug discovery industry. The agreement
includes a memorandum of understanding that in the event of the discovery or
development of novel and valuable content, candidates or products, the parties
will establish an agreement for the commercialization of those discoveries. Such
an agreement enables both CombiMatrix Corporation and RCAST to benefit from any
discoveries made using this platform.
FIRST QUARTER 2002:
In February 2002, CombiMatrix Corporation was awarded a six month $100,000
Phase I National Institutes of Health grant for the development of its protein
biochip technology. The title of the grant is "Self-Assembling Protein
Microchips." This grant is in addition to a two-year Phase II SBIR grant from
the U.S. Department of Defense for the development of multiplexed chip based
assays for chemical and biological warfare agent detection.
On March 20, 2002, we announced that our board of directors approved a plan
to divide our common stock into two new classes of common stock: new
"CombiMatrix" common stock, that would reflect the performance of our
CombiMatrix subsidiary and all corporate assets, liabilities and related
transactions of Acacia Research attributed to the CombiMatrix business, and new
"Acacia Technologies" common stock, that would reflect the performance of our
media technology businesses, including Soundview Technologies, Acacia Media
Technologies and all corporate assets, liabilities, and related transactions of
Acacia Research attributed to the media technology businesses. The plan is
subject to several conditions including stockholder approval. If the
recapitalization proposal were approved and the other conditions were satisfied,
our stockholders would receive shares of both of the new classes of stock in
exchange for existing Acacia Research Corporation shares. The new share classes
are intended to be separately listed on the NASDAQ National Market System under
the symbols "CBMX" and "ACTG," respectively.
-141-
We also announced that our board of directors and CombiMatrix Corporation's
board of directors have approved an agreement for us to acquire the minority
stockholder interests in CombiMatrix Corporation. The proposed acquisition would
be accomplished through a merger in which the minority stockholders of
CombiMatrix Corporation would receive shares of the new Acacia Research
Corporation "CombiMatrix" common stock in exchange for their existing shares.
The proposed transaction will be submitted to our stockholders and the
stockholders of CombiMatrix Corporation for approval.
On May 7, 2002, we filed a registration statement with the Securities and
Exchange Commission related to the proposed recapitalization and merger
transactions discussed above.
FIRST QUARTER 2001:
In the first quarter of 2001, Soundview Technologies executed separate
settlement and/or license agreements with Samsung Electronics, Hitachi America,
Ltd., LG Electronics, Inc., Funai Electric Company, Ltd., Daewoo Electronics
Corporation of America and Sanyo Manufacturing Corporation. In addition,
Soundview Technologies settled its lawsuits with Pioneer Electronics (USA)
Incorporated. Certain of these license agreements constitute settlements of
patent infringement litigation brought by Soundview Technologies. The settlement
and license agreements provide for licensing payments to Soundview Technologies,
and grant non-exclusive licenses of Soundview Technologies' U.S. Patent No.
4,554,584 (the "V-chip patent") to the respective television manufacturers.
Certain of these settlement and license agreements provide for future royalty
payments to Soundview Technologies. We received, and recognized as revenue, $2.4
million in one-time license fee payments, in exchange for the grant of V-chip
patent licenses, during the first quarter of 2001. In addition, we received a
payment of $1.0 million pursuant to a settlement and license agreement executed
in December 2000, which is included in deferred revenues at December 31, 2001.
In February 2001, the board of directors of Soundbreak.com, a
majority-owned subsidiary of Acacia Research, resolved to cease operations as of
February 15, 2001 and liquidate its remaining assets and liabilities of the
company. Accordingly, we reported the results of operations and the estimated
loss on disposal of Soundbreak.com as results of discontinued operations in the
consolidated statements of operations and comprehensive loss as of and for the
year ended December 31, 2000.
SECOND QUARTER 2001:
In June 2001, our ownership interest in Soundview Technologies increased
from 67% to 100%, following Soundview Technologies' completion of a stock
repurchase transaction with its former minority stockholders. Soundview
Technologies repurchased the stock of its former minority stockholders in
exchange for a cash payment and the grant to such stockholders of the right to
receive 26% of future net revenues generated by Soundview Technologies' current
patent portfolio, which includes its V-chip patent.
During the second quarter of 2001, Soundview Technologies executed separate
settlement and license agreements with Thomson Multimedia, Inc. and JVC Americas
Corporation. Certain of these settlement and license agreements provide for
future royalty payments to Soundview Technologies. We received, and recognized
as revenue, one-time license fee payments totaling $10.0 million in exchange for
the grant of V-chip patent licenses during the second quarter of 2001.
THIRD QUARTER 2001:
In the third quarter of 2001, Soundview Technologies executed separate
settlement and/or license agreements with Matsushita Electric Industrial Co.,
Ltd. and Orion Electric Co., Ltd. We received, and recognized as revenue,
one-time license fee payments totaling $10.7 million in exchange for the grant
of V-chip patent licenses during the third quarter of 2001. In addition, we
received a payment of $0.5 million pursuant to a license agreement executed in
December 2000, which is included in deferred revenues at December 31, 2001.
In July 2001, CombiMatrix Corporation entered into non-exclusive worldwide
license, supply, and research and development agreements with Roche. These
agreements were amended and restated in September 2002. Under
-142-
the terms of the revised agreements, it is contemplated that Roche will
co-develop, use, manufature, market and distribute CombiMatrix Corporation's
biochips (microarrays) and related technology for rapid production of
customizable biochips. Additionally, CombiMatrix Corporation and Roche will
develop a platform technology, providing a range of standardized biochips for
use in important research applications. Roche has made will continue to make
payments for the deliverables stipulated and for expanded license and
manufacturing rights.
The agreements provide for minimum payments by Roche to CombiMatrix
Corporation over the first three years, including milestone achievements,
payments for products, royalties and research and development projects. In the
third quarter of 2001, CombiMatrix Corporation received an up-front payment
under the Roche agreement, which is included in deferred revenues at December
31, 2001.
In August 2001, CombiMatrix Corporation entered into a license and supply
agreement with NASA. The agreement provides for the license, purchase and use by
the NASA Ames Research Center of CombiMatrix Corporation's active biochips
(microarrays) and related technology to conduct biological research in
terrestrial laboratories and in space.
FOURTH QUARTER 2001:
On October 22, 2001, our board of directors declared a ten percent (10%)
stock dividend. The stock dividend, totaling 1,777,710 shares, was distributed
on December 5, 2001 for stockholders of record as of November 21, 2001. All
share and per share information presented herein is adjusted for the stock
dividend.
In October 2001, CombiMatrix Corporation formed a joint venture with
Marubeni Japan, one of Japan's leading trading companies. The joint venture,
based in Tokyo, will focus on development and licensing opportunities for
CombiMatrix Corporation's biochip technology with pharmaceutical and
biotechnology companies in the Japanese market. Marubeni made an investment to
acquire a ten percent (10%) minority interest in the joint venture.
In November 2001, we increased our ownership interest in Acacia Media
Technologies, formerly Greenwich Information Technologies LLC, from 33% to 100%
through the purchase of the ownership interest of the former limited liability
company's other member. In December 2001, we converted the company from a
limited liability company to a corporation and changed the name of the company
to Acacia Media Technologies Corporation. Acacia Media Technologies owns a
worldwide portfolio of pioneering patents relating to audio and video
transmission and receiving systems, commonly known as audio-on-demand and
video-on-demand, used for distributing content via various methods including
computer networks, cable television systems and direct broadcasting satellite
systems.
In December 2001, CombiMatrix Corporation completed a major milestone in
its strategic alliance with Roche. CombiMatrix Corporation demonstrated several
key performance metrics of its custom in-situ microarray system. In the fourth
quarter of 2001, CombiMatrix Corporation received certain milestone payments
under the Roche agreement, which are included in deferred revenues at December
31, 2001.
In the fourth quarter of 2001, we received, and recognized as revenue, a
one-time license fee payment totaling $1.0 million in exchange for the grant of
a V-chip patent license. In addition, CombiMatrix Corporation received payments
under its license and supply agreement with NASA, which are included in deferred
revenues at December 31, 2001.
As of September 30, 2001, CombiMatrix Corporation capitalized costs
incurred in connection with the filing of a registration statement with the
Securities and Exchange Commission in November 2000, totaling $1.4 million.
Approximately $0.9 million of these costs were included in current assets in our
December 31, 2000 consolidated balance sheet. In the fourth quarter of 2001, all
of these deferred costs were charged to operations due to uncertainty regarding
the future recoverability of such costs stemming from unfavorable market
conditions in late 2001 and early 2002.
-143-
EFFECT OF VARIOUS ACCOUNTING METHODS ON OUR RESULTS OF OPERATIONS
CRITICAL ACCOUNTING POLICIES
We believe the following critical accounting policies affect our more
significant judgments and estimates used in the preparation of our consolidated
financial statements:
o revenue recognition;
o research and development expenses;
o litigation, claims and assessments;
o stock-based compensation;
o accounting for income taxes; and
o valuation of long-lived and intangible assets and goodwill.
REVENUE RECOGNITION. We derive our revenues from three primary sources: (i)
fees from the licensing of our television V-chip technology to television
manufacturers, (ii) revenues under multiple-element arrangements with strategic
partners and licensees and (iii) government grant revenues.
As described below, significant management judgments must be made and used
in connection with the revenue recognized in any accounting period. Material
differences may result in the amount and timing of our revenue for any period if
our management made different judgments.
Television V-chip License Fees: Our television V-chip technology settlement
and/or license agreements provide for the payment of contractually determined
license fees to us in consideration for the grant to certain television
manufacturers of a non-exclusive, retroactive and future license to manufacture
and/or sell products covered by the V-chip patent. While payments recognized to
date have been one-time payments for the grant of V-chip patent licenses,
certain of the agreements also provide for future royalties or additional
required payments based on future television sales or the outcome of future
litigation and settlement activities. The agreements executed with the various
television manufacturers include certain release provisions with respect to
Soundview Technologies' ongoing patent infringement and anti-trust enforcement
efforts. Amounts received under the settlement and license agreements are
recorded as license fee income in our consolidated statement of operations and
comprehensive loss.
License fee income is recognized as revenue when (i) persuasive evidence of
an arrangement exists, (ii) all obligations have been performed pursuant to the
terms of the license agreement, (iii) amounts are fixed or determinable and (iv)
collectibility of amounts is reasonably assured. Pursuant to the terms of the
agreements, we have no further obligation with respect to the sale of the
non-exclusive retroactive and future license, including no express or implied
obligation on our part to maintain or upgrade the technology or license, or
provide future support or services. Generally, the agreements provide for the
grant of the license upon receipt by Soundview Technologies of payment of the
contractual license fee. As such, the earnings process is generally complete
upon the receipt of payment from the television manufacturer, and revenue is
recognized when all of the criteria above are met.
License fee payments received by us that do not meet the revenue
recognition criteria above are recorded as deferred revenues until the criteria
are met. In the event that license fee amounts due from television manufacturers
have been accrued, we assess collection based on a number of factors, including
past transaction history and credit-worthiness. If we determine that collection
of an accrued license fee is not reasonably assured, we defer the fee and
recognize revenue upon receipt of cash.
Revenues Under Multiple-Element Arrangements with Strategic Partners and
Licensees: CombiMatrix Corporation entered into a non-exclusive worldwide
license, supply, research and development agreement with Roche in July 2001.
Under the terms of the agreement, Roche will purchase, use and resell
CombiMatrix Corporation's microarray and related technologies for rapid
production of customizable biochips. Additionally, CombiMatrix Corporation and
Roche will develop a platform technology, providing a range of standardized
biochips for use in research applications. The agreement has a 15-year term and
provides for minimum payments by
-144-
Roche to CombiMatrix Corporation over the first three years, including milestone
achievements, payments for products, royalties and research and development
projects.
Revenues from the sale of products and services under multiple-element
arrangements are recognized when (i) persuasive evidence of an arrangement
exists, (ii) delivery has occurred or services have been rendered, (iii) the
fees are fixed and determinable and (iv) collectibility is reasonably assured.
Pursuant to Staff Accounting Bulletin No. 101, "Revenue Recognition in
Financial Statements" ("SAB No. 101"), an arrangement with multiple deliverables
should be segmented into individual units of accounting based on the separate
deliverables only if there is objective and reliable evidence of fair value to
allocate the consideration to the deliverables. Accordingly, revenues from
multiple-element arrangements involving license fees, up-front payments and
milestone payments, which are received or billable in connection with other
rights and services that represent continuing obligations of CombiMatrix
Corporation, are deferred until all of the elements have been delivered or until
objective and verifiable evidence of the fair value of the undelivered elements
has been established.
Upon establishing verifiable evidence of the fair value of the elements in
multiple-element arrangements, the fair value is allocated to each element of
the arrangement, such as licensing or research and development deliverables,
based on the relative fair values of the elements. We determine the fair value
of each element in multiple-element arrangements based on objective and
verifiable evidence of the price charged when the same element is sold
separately. If evidence of fair value of all undelivered elements exists but
evidence does not exist for one or more delivered elements, then revenue is
recognized using the residual method. Under the residual method, the fair value
of the undelivered elements is deferred and the remaining portion of the
arrangement fee is recognized as revenue.
For the year ended December 31, 2001, CombiMatrix Corporation received
payments totaling $5.3 million from Roche, including up-front payments and
milestone payments, which are classified as deferred revenues in the
accompanying December 31, 2001 consolidated balance sheet because objective and
reliable evidence of fair value of the various elements of the Roche Agreement
does not currently exist and all elements of the contract have not been
delivered. Pursuant to SAB No. 101, the elements associated with the amounts
received to date and additional payments will be treated as one accounting unit.
The up-front fees and cash payments received upon the accomplishment of the
contractual milestones will be deferred. Revenue will be recognized when all of
the related elements, for which objective and reliable evidence does not exist,
have been delivered and there is objective and reliable evidence to support the
fair value for all of the undelivered elements. Under our existing agreement and
timelines, CombiMatrix expects to have completed and delivered all of the
remaining milestones under the license and supply agreement by the fourth
quarter of 2002. When verifiable, objective evidence of fair value for the
remaining undelivered elements has been obtained, deferred revenues associated
with payments received to date for the completed elements will become
recognizable as revenue. We intend to obtain verifiable, objective evidence of
fair value for the remaining undelivered elements by reviewing the public record
for similar arms-length, multiple-element agreements between unrelated
third-party companies in comparable industries. The review and establishment of
verifiable, objective evidence of fair value for the remaining undelivered
elements is expected to be completed in the fourth quarter of 2002. Future
deliverables include refinement to Roche's specifications of certain hardware
elements of the microarray technology platform.
Government Grants: Revenues from government grants and contracts are
recognized when the related services are performed and approved by the grantor
and when collectibility is reasonably assured. Amounts recognized are limited to
amounts due from customers based upon the contract or grant terms.
RESEARCH AND DEVELOPMENT EXPENSES. Our research and development expenses to
date have been incurred primarily by our subsidiary, CombiMatrix Corporation.
CombiMatrix Corporation is engaged in several research and development
initiatives to expand its product offerings by increasing the number of test
sites on their active biochips from 1,024 sites per square centimeter currently
to over 10,000 sites per square centimeter and by developing additional
applications of its technology for drug discovery and development.
Research and development expenses have been CombiMatrix Corporation's
largest expense to date. Research and development expenses primarily relate to
costs of developing its semiconductor-based, active biochip
-145-
system, including salaries and benefits, recruiting and relocation expenses
related to the expansion of its research and development staff, costs associated
with increased usage of laboratory materials and supplies and increased
facilities costs. CombiMatrix Corporation expects to continue to incur
significant expenses for research and development, for developing and expanding
its manufacturing capabilities and for other efforts to commercialize its
products. As a result, we expect that our research and development expenses will
continue to increase in the foreseeable future.
In July 2001, CombiMatrix Corporation signed a non-exclusive license and
supply agreement and a research and development agreement with Roche in the
genomics and related diagnostic fields, which provide for payments to
CombiMatrix Corporation upon development of proposed products incorporating its
technology. In 2001, research and development expenses incurred were primarily
driven by CombiMatrix Corporation's obligations under the research and
development agreement with Roche. These projects include continued development
of production microarray synthesis techniques, as well as higher density
microarrays. These projects are expected to continue into 2002 and 2003 as
determined by the timelines outlined in CombiMatrix Corporation's agreements
with Roche.
We account for research and development expenses pursuant to Statement of
Financial Accounting Standards ("SFAS") No. 2, "Accounting for Research and
Development Costs" ("SFAS No. 2"). SFAS No. 2 requires that all research and
development costs, as defined therein, be charged to expense as incurred.
Research and development expenses incurred to date consist of costs incurred for
direct and overhead-related research expenses and are expensed as incurred.
Costs to acquire technologies which are utilized in research and development and
which have no alternative future use are expensed when incurred. Costs related
to filing and pursuing patent applications are expensed as incurred, as
recoverability of such expenditures is uncertain. Under SFAS No. 2, research and
development refers to a plan or design for a new product or process or for a
significant improvement to an existing product or process whether intended for
sale or use. Significant management estimates are required with respect to the
determination of which costs relate to plans or designs for a new product or
process or for a significant improvement to an existing product. Had management
determined that certain costs incurred were not related to research and
development activities, different accounting treatment for such costs may have
been required.
The costs of software developed for use in CombiMatrix Corporation's
products are expensed as incurred until technological feasibility for the
software has been established. Software development costs incurred to date have
been classified as research and development expenses. Significant management
estimates are required with respect to the determination of when technological
feasibility for the software has been established. Technological feasibility is
established upon completion of a detail program design or, in its absence,
completion of a working model. Thereafter, all software production costs are
required to be capitalized and subsequently reported at the lower of unamortized
cost or net realizable value. Had management made differing judgments regarding
technological feasibility, different accounting treatment of costs of software
developed for use in CombiMatrix Corporation's products may have been required.
LITIGATION, CLAIMS AND ASSESSMENTS. The preparation of financial statements
in conformity with generally accepted accounting principles in the United States
of America requires management to make estimates and assumptions that affect the
reported amount of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the consolidated financial statements and the
reported amounts of revenues and expenses during the reporting period.
Specifically, our management must make estimates of whether (i) it is probable
that an asset has been impaired or a liability has been incurred at the date of
the consolidated financial statements and (ii) whether the amount of loss can be
reasonably estimated. In the event that in management's estimation it is
probable that an asset has been impaired or a liability has been incurred at the
date of the consolidated financial statements and amounts of loss can be
reasonably estimated, the estimated contingent loss from the loss contingency is
accrued by a charge to income.
Because of the uncertainties related to both probabilities of outcome and
amounts and ranges of potential loss associated with outstanding claims and
pending litigation at December 31, 2001, management is unable to make a
reasonable estimate of the likelihood of outcome or the liability that could
result from an unfavorable outcome. As such, we have not accrued for any loss
contingencies as of December 31, 2001. As additional information becomes
available, we will assess the potential liability related to our pending
litigation and revise our estimates. Such
-146-
revisions in our estimates of the potential liability could materially impact
our results of operation and financial position.
STOCK-BASED COMPENSATION. Acacia Research's stock option policies provide
for the granting of stock options to employees, generally, at exercise prices
equal to the fair value of the underlying stock on the date of grant. The fair
values of Acacia Research stock option grants are determined by reference to the
quoted market prices of our stock as listed on the NASDAQ National Market on the
grant date. The fair values of stock options granted by our non-public
subsidiaries are determined by the board of directors of the respective
companies.
Non-cash stock compensation cost related to stock options issued to
employees is accounted for in accordance with Accounting Principles Board
("APB") Opinion No. 25, "Accounting for Stock Issued to Employees" ("APB No.
25"), and related interpretations. Compensation cost attributable to such
options is recognized based on the difference, if any, between the closing
market price of the stock on the date of grant and the exercise price of the
option. Compensation cost is deferred and amortized on an accelerated basis over
the vesting period of the individual option awards using the amortization method
prescribed in Financial Accounting Standards Board ("FASB") Interpretation No.
28, "Accounting for Stock Appreciation Rights and Other Variable Stock Option or
Award Plans" ("FIN No. 28"). Non-cash compensation cost of stock options and
warrants issued to non-employee service providers, which has not been
significant, is accounted for under the fair value method required by SFAS No.
123 and Emerging Issues Task Force Issue No. 96-18, "Accounting for Equity
Instruments That Are Issued to Other Than Employees for Acquiring, or in
Conjunction with Selling, Goods or Services."
During the year ended December 31, 2000, CombiMatrix Corporation recorded
deferred non-cash stock compensation charges aggregating approximately $53.8
million in connection with the granting of stock options. Pursuant to Acacia
Research's policy, the stock options were originally granted by CombiMatrix
Corporation at exercise prices equal to the fair value of the underlying
CombiMatrix Corporation common stock on the date of grant as determined by its
board of directors. However, such exercise prices were subsequently determined
to have been granted at exercise prices below fair value due to a substantial
step-up in the fair value of CombiMatrix Corporation common stock pursuant to a
valuation provided by an investment banker in contemplation of a potential
CombiMatrix Corporation initial public offering in 2000. In connection with the
proposed CombiMatrix Corporation initial public offering and pursuant to
Securities and Exchange Commission rules and guidelines, we were required to
reassess the value of stock options issued during the one-year period preceding
the potential initial public offering and utilize the stepped-up fair value
provided by the investment banker for purposes of determining whether such stock
option issuances were compensatory, resulting in the calculation of the $53.8
million in deferred non-cash stock compensation charges in 2000. Deferred
non-cash stock compensation charges are being amortized over the respective
option grant vesting periods, which range from one to four years. Non-cash stock
compensation charged to income during 2001 totaled $20.8 million and related
primarily to the continued amortization of CombiMatrix Corporation's deferred
stock compensation amounts during 2001. Pursuant to the vesting terms of
CombiMatrix Corporation's stock options outstanding at December 31, 2001, we
will incur non-cash stock compensation amortization expenses of $8.1 million in
2002, $3.6 million in 2003 and $1.1 million in 2004.
During the third and fourth quarters of 2001, certain CombiMatrix
Corporation unvested stock options were forfeited. Pursuant to the provisions of
APB No. 25 and related interpretations, the reversal of previously recognized
non-cash stock compensation expense on forfeited unvested stock options, in the
amount of $4.7 million, has been reflected in the 2001 consolidated statement of
operations and comprehensive loss as a reduction in 2001 non-cash stock
compensation expense. In addition, the forfeiture of certain unvested options
during 2001 resulted in a reduction of the remaining deferred non-cash stock
compensation expense scheduled to be amortized in future periods.
Amounts to be amortized in future periods reflected above may be impacted
by certain subsequent stock option transactions including modification of terms,
cancellations, forfeitures and other activity.
ACCOUNTING FOR INCOME TAXES. As part of the process of preparing our
consolidated financial statements, we are required to estimate our income taxes
in each of the jurisdictions in which we operate. This process involves the
estimating of our actual current tax exposure together with assessing temporary
differences resulting from differing treatment of items, such as deferred
revenue, amortization of intangibles and asset depreciation for tax and
accounting purposes. These differences result in deferred tax assets and
liabilities, which are included within our
-147-
consolidated balance sheet. We must then assess the likelihood that our deferred
tax assets will be recovered from future taxable income and to the extent we
believe that recovery is not likely, we must establish a valuation allowance. To
the extent we establish a valuation allowance or increase this allowance in a
period, we must include an expense within the tax provision in the consolidated
statement of operations and comprehensive loss.
Significant management judgment is required in determining our provision
for income taxes, our deferred tax assets and liabilities and our valuation
allowance. We have recorded a full valuation allowance against our net deferred
tax assets of $49.9 million as of December 31, 2001, due to uncertainties
related to our ability to utilize our deferred tax assets, primarily consisting
of certain net operating losses carried forward, before they expire. In
assessing the need for a valuation allowance, we have considered our estimates
of future taxable income, the period over which our deferred tax assets may be
recoverable, our history of losses and our assessment of the probability of
continuing losses in the foreseeable future. In management's estimate, any
positive indicators, including forecasts of potential future profitability of
our businesses, are outweighed by the uncertainties surrounding our estimates
and judgments of potential future taxable income. In the event that actual
results differ from these estimates or we adjust these estimates should we
believe we would be a to realize these deferred tax assets in the future, an
adjustment to the valuation allowance would increase income in the period such
determination was made. Any changes in the valuation allowance could materially
impact our financial position and results of operations.
VALUATION OF LONG-LIVED AND INTANGIBLE ASSETS AND GOODWILL. We assess the
impairment of identifiable intangibles, long-lived assets and related goodwill
and enterprise level goodwill whenever events or changes in circumstances
indicate that the carrying value may not be recoverable. Factors we consider
important which could trigger an impairment review include the following:
o significant underperformance relative to expected historical or
projected future operating results;
o significant changes in the manner of our use of the acquired assets or
the strategy for our overall business;
o significant negative industry or economic trends; and
o significant decline in our stock price for a sustained period.
When we determine that the carrying value of intangibles, long-lived assets
and related goodwill and enterprise level goodwill may not be recoverable based
upon the existence of one or more of the above indicators of impairment, we
measure any impairment based on a projected discounted cash flow method using a
discount rate determined by our management to be commensurate with the risk
inherent in our current business model. Net intangible assets, long-lived assets
and goodwill amounted to $21.4 million as of December 31, 2001.
In 2002, SFAS No. 142, "Goodwill and Other Intangible Assets" ("SFAS No.
142"), became effective and as a result, we will cease to amortize approximately
$4.7 million of goodwill effective January 1, 2002. We recorded approximately
$1.1 million of amortization on these amounts during 2001. In lieu of
amortization, we are required to perform an initial impairment review of our
goodwill in 2002 and an annual impairment review thereafter. We expect to
complete our initial review during the first quarter of 2002. We currently do
not expect to record an impairment charge upon completion of the initial
impairment review. However there can be no assurance that at the time the review
is completed, a material impairment charge will not be recorded.
In August 2001, the FASB issued SFAS No. 144, "Accounting for the
Impairment or Disposal of Long-Lived Assets" ("SFAS No. 144"), which addresses
financial accounting and reporting for the impairment of long-lived assets and
for long-lived assets to be disposed of. SFAS No. 144 requires long-lived assets
to be tested for recoverability whenever events or changes in circumstances
indicate that its carrying amount may not be recoverable. In conjunction with
such tests, it may be necessary to review depreciation estimates and methods as
required by APB Opinion No. 20, "Accounting Changes," or the amortization period
as required by SFAS No. 142.
-148-
ACCOUNTING FOR INVESTMENTS
The various interests that we acquire in our investees are accounted for
under two broad accounting methods: (i) the consolidation method and (ii) the
equity method. The applicable accounting method is generally determined based on
our voting interest in an investee.
Consolidation. Investees in which we directly or indirectly own more than
50% of the outstanding voting securities are generally accounted for under the
consolidation method of accounting. Under this method, the investee's accounts
are reflected within our consolidated statements of operations and comprehensive
loss. Participation of other stockholders in the earnings or losses of a
consolidated investee is reflected in the caption "minority interests" in our
consolidated statements of operations and comprehensive loss. Minority interests
adjust our consolidated net results of operations to reflect only our share of
the earnings or losses of consolidated, non-wholly-owned investees. In the case
in which losses applicable to the minority interests in an investee exceed the
minority interests in the equity capital of the investee, such excess and any
further losses applicable to the minority interests are charged against the
majority interest. However, if future earnings materialize, the majority
interest will be credited to the extent of such losses previously absorbed.
Equity Method. Investees, over whom we exercise significant influence,
whose results we do not consolidate, are generally accounted for under the
equity method of accounting. Whether or not we exercise significant influence
with respect to an investee depends on an evaluation of several factors
including, among others, representation on the investee's board of directors and
ownership level, which is generally 20% to 50% interest in the voting securities
of the investee, including voting rights associated with our holdings in common,
preferred and other convertible instruments in the investee. Under the equity
method of accounting, an investee's accounts are not reflected within our
consolidated statements of operations and comprehensive loss; however, our share
of the earnings or losses of the investee is reflected in the caption "equity
income (losses) of affiliates" in the consolidated statements of operations and
comprehensive loss.
At December 31, 2001, we have consolidated all of our investees over whom
we exercise significant control. On November 1, 2001, we increased our ownership
interest in Acacia Media Technologies from 33% to 100% through the purchase of
the ownership interest of the former limited liability company's other member.
The results of operations have been included in the consolidated statements of
operations and comprehensive loss from November 1, 2001.
In most cases, we have representation on the boards of directors of our
investees. In addition to our investments in voting equity securities, we also
periodically make advances to our subsidiaries in the form of promissory notes.
-149-
RESULTS OF OPERATIONS
(IN THOUSANDS)
FOR THE YEARS ENDED DECEMBER 31,
--------------------------------
2001 2000 1999
-------- -------- -------
Revenues $ 24,636 $ 57 $ 266
Research and development expenses (18,839) (11,864) (1,806)
Marketing, general and administrative expenses (46,300) (22,089) (4,418)
Amortization of patents and goodwill (2,695) (2,251) (1,622)
Loss on disposal of consolidated subsidiaries -- (1,016) --
Other income (expense), net 4,166 (1,235) (1,042)
Minority interests 17,540 9,166 1,221
Loss from discontinued operations of Soundbreak.com -- (7,443) (776)
Loss from disposal of Soundbreak.com -- (2,111) --
(Provision) benefit for income taxes (780) 73 (20)
Cumulative effect of change in accounting principle -- (246) --
-------- -------- -------
Net loss $(22,272) $(38,959) $(8,197)
======== ======== =======
THREE MONTHS ENDED SIX MONTHS ENDED
------------------- -------------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30,
2002 2001 2002 2001
-------- -------- -------- --------
(UNAUDITED) (UNAUDITED)
Net revenues $ 438 $10,091 $ 687 $ 12,714
Cost of sales (253) -- (253) --
Research and development expenses (5,026) (2,651) (7,694) (5,802)
Non-cash stock compensation expense - research and
development (692) (2,013) (1,113) (4,411)
Marketing, general and administrative expenses (5,516) (9,550) (9,587) (15,771)
Non-cash stock compensation expense - marketing,
general and administrative (1,451) (5,176) (2,453) (11,197)
Amortization of patents and goodwill (564) (638) (1,128) (1,271)
Other (expense) income, net (816) 1,031 (1,269) 2,175
Benefit (provision) for income taxes 75 (228) 144 (241)
Minority interests 4,104 4,362 6,539 9,553
-------- ------- -------- --------
Net loss $(9,701) $(4,772) $(16,127) $(14,251)
======= ======= ======== ========
COMPARISON OF THE THREE AND SIX MONTHS ENDED JUNE 30, 2002 TO THE THREE AND SIX
MONTHS ENDED JUNE 30, 2001
LICENSE FEE INCOME. During the three months ended June 30, 2002, license
fee income was $0 as compared to $10.0 million in license fee income during the
three months ended June 30, 2001. During the six months ended June 30, 2002,
license fee income was $0 as compared to $12.4 million in license fee income
during the six months ended June 30, 2001. The license fee income for the three
and six months ended June 30, 2001 includes license fees received from
television manufacturers with whom we executed separate settlement and/or
license agreements during the first and second quarter of 2001 and December
2000. Pursuant to the terms of the respective settlement and/or license
agreements with each of the television manufacturers, Soundview Technologies
granted to such manufacturers, non-exclusive licenses for its patented V-chip
technology. Soundview Technologies did not record any license fee income during
the first and second quarters of 2002. The Acacia Media Technologies Group
continues to pursue both licensing and strategic business alliances with other
television manufacturers and leading companies in the media technologies
industry.
Acacia Media Technologies Group's patent on the V-chip technology expires
in July 2003. The Acacia Media Technologies Group may continue to collect
license fees on televisions sold in the United States during the patent term,
subsequent to the July 2003 patent expiration date. The Acacia Media
Technologies Group is beginning to market its digital media transmission
technology and is looking to acquire other technologies. The eventual licensing
and sale of these technologies is intended to replace the revenue generated by
licensing the V-chip
-150-
technology. If we do not succeed in acquiring such technologies or are unable to
commercially license our existing and future technologies, our financial
condition may be adversely impacted.
PRODUCT REVENUE AND COST OF SALES. During the three and six months ended
June 30, 2002, product revenue was $274,000 as compared to $0 in product revenue
during the three and six months ended June 30, 2001. During the three and six
months ended June 30, 2002, cost of sales was $253,000 as compared to $0 in cost
of sales during the three and six months ended June 30, 2001. Product revenue
and cost of sales relates to the sale of a gene chip synthesizer and a gene-chip
reader to a Japanese government institution by CombiMatrix's Japanese
subsidiary.
GRANT REVENUE. During the three months ended June 30, 2002, grant revenue
was $164,000 as compared to $91,000 in grant revenue during the three months
ended June 30, 2001. During the six months ended June 30, 2002, grant revenue
was $413,000 as compared to $274,000 in grant revenue during the six months
ended June 30, 2001. Grant revenue during the six months ended June 30, 2002
includes $182,000 ($91,000 in the first and second quarters of 2002) in grant
revenue from CombiMatrix Corporation's continuing performance under its Phase II
Small Business Innovative Research Department of Defense ("SBIR") contract,
$141,000 (recognized in the first quarter of 2002) in one-time contract research
and development revenues and $90,000 ($17,000 and $73,000 in the first and
second quarter of 2002, respectively) in revenue related to performance under
its Phase I National Institutes of Health grant. Grant revenue for the three and
six months ended June 30, 2001 related to CombiMatrix's continued performance
under its Phase II SBIR contract.
CombiMatrix Corporation was awarded the two-year $0.7 million Phase II SBIR
contract in January 2000, which expires in July 2002. We expect to recognize a
final grant revenue amount of $91,000 in the third quarter of 2002 related to
the Phase II SBIR contract. In February 2002, CombiMatrix Corporation was
awarded a six -month $100,000 Phase I National Institutes of Health grant for
the development of its protein biochip technology, of which $90,000 has been
recognized as revenue in the first two quarters of 2002, and we expect to
recognize the remaining portion of the grant in the third quarter of 2002.
RESEARCH AND DEVELOPMENT EXPENSES. During the three months ended June 30,
2002, research and development expense was 5.0 million, as compared to 2.7
million in the three months ended June 30, 2001. During the six months ended
June 30, 2002, research and development expense was $7.7 million, as compared to
$5.8 million in the six months ended June 30, 2001. Research and development
expenses for both periods relate to CombiMatrix. The increase in research and
development expense for 2002 as compared to the same period in 2001 was
primarily due to an increase in activities related to CombiMatrix's continuing
performance under the product commercialization phase of its license, supply,
research and development agreements with Roche Diagnostics GmbH ("Roche"),
including increases in labor, supplies and materials, development of prototype
microarrays and instruments, and the use of outside consultants for certain
engineering and manufacturing efforts.
CombiMatrix Corporation's research and development activities during the
third and fourth quarters of 2001 and the first two quarters of 2002 were
focused on efforts to further develop and enhance its microarray technologies as
well as to commercialize these technologies. The majority of these efforts were
driven by CombiMatrix Corporation's obligations under its license, supply,
research and development agreements with Roche, which were executed in July
2001. These projects include development of production microarray synthesis
techniques, higher density microarrays and the overall commercialization efforts
of the technologies that Roche is licensing from CombiMatrix Corporation.
MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES. We incurred marketing,
general and administrative expenses of $5.5 million ($2.5 million related to
CombiMatrix) during the three months ended June 30, 2002, as compared to $9.6
million ($3.3 million related to CombiMatrix) in the three months ended June 30,
2001. Marketing, general and administrative expenses were $9.6 million ($4.5
million related to CombiMatrix) during the six months ended June 30, 2002, as
compared to $15.8 million ($6.4 million related to CombiMatrix) in the six
months ended June 30, 2001.
The decrease in marketing, general and administrative expenses for 2002 as
compared to the same period in 2001 was due to: a decrease in salaries and
benefits costs related to a decrease in headcount at Acacia corporate resulting
from the closure and/or write-off of several of our early stage investments at
the end of 2000; a decrease in CombiMatrix Corporation's sales and marketing
head count and related expenses, recruitment and relocation
-151-
expenses, administrative head count and legal costs; and a decrease in legal
fees incurred related to Soundview Technologies' patent licensing and related
infringement settlements. Legal fees related to the license fee agreements
executed with television manufacturers are generally incurred on a contingency
basis, based on license fee payments received. Marketing, general and
administrative expenses for the six months ended June 30, 2002 include $692,000
in professional fees incurred in connection with the preparation and filing of
our registration statement on Form S-4 related to the proposed recapitalization
transaction discussed elsewhere herein.
NON-CASH STOCK COMPENSATION EXPENSE.
Research and Development. During the three and six months ended June
30, 2002, research and development related non-cash stock compensation charges,
all of which relate to CombiMatrix Corporation, were $0.7 million and $1.1
million, respectively, as compared to $2.0 million and $4.4 million,
respectively, during the comparable periods in 2001.
Marketing, General and Administrative Expenses. During the three and
six months ended June 30, 2002, marketing, general and administrative non-cash
stock compensation charges were $1.5 million ($1.4 million related to
CombiMatrix Corporation) and $2.5 million ($2.4 million related to CombiMatrix
Corporation), respectively, as compared to $5.2 million (approximately $5.2
million related to CombiMatrix Corporation) and $11.2 million ($10.4 million
related to CombiMatrix Corporation), respectively, in the comparable period in
2001.
The decrease in non-cash stock compensation charges related to research and
development and marketing, general and administrative expenses is primarily due
to the forfeiture and cancellation of certain options in the third and fourth
quarters of 2001 and a reduction in scheduled stock compensation amortization
related to the accelerated method of amortization utilized by us pursuant to
FASB Interpretation No. 28, "Accounting for Stock Appreciation Rights and Other
Variable Stock Option or Award Plans" ("FIN No. 28"), which results in higher
amounts of amortization in the early vesting periods, and lower amounts of
amortization in subsequent vesting periods. CombiMatrix non-cash stock
compensation amortization expense for the six months ended June 30, 2002 are net
of $748,000 in stock compensation expense reversal related to the forfeiture of
certain unvested stock options in the first and second quarters of 2002.
AMORTIZATION OF PATENTS AND GOODWILL. During the three months ended June
30, 2002 and 2001, amortization expense relating to patents and goodwill was
$0.6 million. During the six months ended June 30, 2002, amortization expense
was $1.1 million as compared to $1.3 million in amortization expense during the
six months ended June 30, 2001. Amortization expense relating to patents and
goodwill for the three and six months ended June 30, 2002 excludes $0.2 million
and $0.5 million, respectively, of amortization expense pursuant to SFAS No.
142, "Goodwill and Other Intangible Assets" ("SFAS No. 142"), which requires
goodwill to be tested for impairment under certain circumstances and written off
when determined to be impaired, rather than being amortized as previous
standards required. The reduction in goodwill amortization in the three and six
months ended June 30, 2002 was offset by an increase in patent amortization
related to the increase in our ownership interest in Acacia Media Technologies
Corporation (formerly Greenwich Information Technologies, a limited liability
company) from 33% to 100% through the purchase of the ownership interest of
Acacia Media Technologies Corporation's other member in November 2001.
As a result of the purchase, we will be recording additional patent
amortization of $0.2 million on a quarterly basis over the related patents'
economic useful lives (approximately 10 years) related to the intangibles
identified in connection with the application of the purchase method of
accounting.
OTHER (EXPENSE) INCOME, NET. During the three months ended June 30,
2002, other expense, net (primarily comprised of interest income, realized and
unrealized gains and losses on trading securities, equity in losses of affiliate
and other) was $0.8 million as compared to $1.0 million in net other income in
2001. During the six months ended June 30, 2002, other expense, net (primarily
comprised of interest income, realized and unrealized gains and losses on
trading securities, equity in losses of affiliate and other) was $1.3 million as
compared to $2.2 million in net other income in 2001.
-152-
INTEREST INCOME. During the three months ended June 30, 2002, interest
income was $0.3 million as compared to $1.0 million in the three months ended
June 30, 2001. During the six months ended June 30, 2002, interest income was
$0.7 million as compared to $2.2 million in the six months ended June 30, 2001.
The decrease in interest income during 2002 was primarily due to the impact of a
decrease in interest rates on our short-term investments related to sharp
interest rate cuts by the Federal Open Market Committee and other external
economic factors negatively impacting rates of return on short-term investments
occurring during the third and fourth quarters of 2001.
REALIZED LOSSES ON SHORT-TERM INVESTMENTS. During the three months
ended June 30, 2002, net realized losses on short-term investments was $0.9
million as compared to no realized losses on short-term investments in the three
months ended June 30, 2001. During the six months ended June 30, 2002, net
realized losses on short-term investments was $1.5 million as compared to no
realized losses on short-term investments in the six months ended June 30, 2001.
The increase in realized losses on short-term investments during 2002 was due to
realized losses recorded on certain trading securities during the three and six
months ended June 30, 2002. We did not hold any trading securities during the
three or six months ended June 30, 2001.
UNREALIZED LOSSES ON SHORT-TERM INVESTMENTS. During the three months
ended June 30, 2002, net unrealized losses were $0.2 million as compared to no
unrealized losses in the same period in 2001. During the six months ended June
30, 2002, net unrealized loses were $0.5 million as compared to no unrealized
losses in the same period in 2001. The increase is due to the results of certain
trading securities held during the respective periods. We did not hold any
trading securities during the three or six months ended June 30, 2001.
EQUITY IN LOSSES OF AFFILIATE. During the three months ended June 30,
2002, equity in losses of affiliate was $0 as compared to $55,000 in the three
months ended June 30, 2001. During the six months ended June 30, 2002, equity in
losses of affiliate was $0 as compared to $110,000 in the six months ended June
30, 2001. Equity in losses of affiliate during the three and six months ended
June 30, 2001 was comprised of losses recorded for our equity investment in
Acacia Media Technologies Corporation. As of December 31, 2001, we no longer
account for any of our investments under the equity method as we directly own
more that 50% of the outstanding voting securities of our subsidiaries and, as a
result, account for our investments under the consolidation method of
accounting.
MINORITY INTERESTS. Minority interests in the losses of consolidated
subsidiaries was $4.1 million during the three months ended June 30, 2002 as
compared to $4.4 million in the same period in 2001. Minority interests in the
losses of consolidated subsidiaries was $6.5 million during the six months ended
June 30, 2002 as compared to $9.6 million in the same period in 2001. Minority
interests in the losses of consolidated subsidiaries for the three and six
months ended June 30, 2002 were primarily comprised of minority interests in the
net losses of CombiMatrix totaling $4.0 million and $6.3 million, respectively.
Minority interests in the losses of consolidated subsidiaries for the three and
six months ended June 30, 2001 were comprised primarily of minority interests in
the net losses of CombiMatrix totaling $5.3 million and $10.8 million,
respectively. Minority interests in the losses of consolidated subsidiaries for
the three and six months ended June 30, 2001 were partially offset by minority
interests in the net income of Soundview Technologies totaling $1.0 million and
$1.3 million, respectively. The decrease in minority interests in the losses of
consolidated subsidiaries is primarily due to a reduction in CombiMatrix's net
losses for the three and six months ended June 30, 2002 as compared to the same
periods in 2001.
2001 COMPARED TO 2000
LICENSE FEE INCOME. In 2001, license fee income was $24.2 million as
compared to no license fee income during 2000. The increase in license fee
income for 2001 resulted primarily from the settlement of patent infringement
litigation brought by Soundview Technologies and includes license fee amounts
received from eleven of the twelve television manufacturers with whom we have
executed separate settlement and/or license agreements during 2001 and 2000.
Pursuant to the terms of the respective settlement and license agreements with
each of the television manufacturers, Soundview Technologies granted to such
manufacturers, non-exclusive licenses for its U.S. Patent No. 4,554,584.
-153-
GRANT REVENUE. In 2001, grant revenue was $0.5 million as compared to $0.02
million in grant revenue in 2000. The increase in grant revenue during 2001
resulted from CombiMatrix Corporation's continuing performance under its Phase
II Small Business Innovative Research Department of Defense contract.
RESEARCH AND DEVELOPMENT EXPENSES. In 2001, research and development
expense was $18.8 million, all of which related to CombiMatrix Corporation, as
compared to $11.9 million in 2000, of which $9.3 million related to CombiMatrix
Corporation. The increase in research and development expense for 2001 as
compared to the same period in 2000 was primarily due to a general expansion of
CombiMatrix Corporation's research and development activities, including an
increase in personnel and amounts of supplies and materials used, an increase in
CombiMatrix Corporation's non-cash stock compensation charges included in
research and development expense, increased costs related to efforts to further
develop and enhance its microarray technology and increased costs related to
significant engineering efforts undertaken to commercialize its technology. Most
of these efforts were driven by CombiMatrix Corporation's obligations under the
license and supply agreement with Roche, executed in July 2001. These projects
include development of production microarray synthesis techniques, as well as
higher density microarrays. Given the contractual requirements under our
existing R&D agreements coupled with our efforts to enhance current technologies
as well as to develop new technologies, we expect that future R&D cash spending
will increase from current spending levels.
In 2001, research and development expense included non-cash stock
compensation charges, all of which related to CombiMatrix Corporation, totaling
$7.2 million. Non-cash stock compensation charges for 2001 are net of $0.8
million of non-cash stock compensation expense reversal related to the
forfeiture of certain unvested stock options during the third and fourth
quarters of 2001. In 2000, research and development expense for non-cash stock
compensation was $3.4 million.
MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES. We incurred marketing,
general and administrative expenses of $46.3 million ($27.7 million related to
CombiMatrix Corporation) in 2001, compared to $22.1 million ($11.2 million
related to CombiMatrix Corporation) in 2000. The increase in marketing, general
and administrative expenses for 2001 as compared to the same period in 2000 was
primarily due to an increase in non-cash stock compensation charges, the
continued expansion of CombiMatrix Corporation's operations including an
increase in salaries and benefits due to an increase in the number of
CombiMatrix Corporation personnel, an increase in personnel recruitment and
relocation expenses, an increase in rent and utilities expenses relating to
CombiMatrix Corporation's move to larger office facilities during the first
quarter of 2001, the write-off of $1.4 million of deferred initial public
offering costs in the fourth quarter of 2001 by CombiMatrix Corporation and an
increase in legal fees related to Soundview Technologies' patent licensing and
related infringement settlements.
Marketing, general and administrative expenses included $13.6 million
($12.8 million related to CombiMatrix Corporation) and $7.3 million ($6.5
million related to CombiMatrix Corporation) of non-cash stock compensation
charges for 2001 and 2000, respectively. Marketing, general and administrative
non-cash stock compensation charges for 2001 are net of $3.9 million of non-cash
stock compensation expense reversal related to the forfeiture of certain
unvested stock options during the third and fourth quarters of 2001.
AMORTIZATION OF PATENTS AND GOODWILL. In 2001, amortization expense
relating to patents and goodwill was $2.7 million as compared to $2.3 million in
2000. As a result of the increase in our ownership interest in Acacia Media
Technologies from 33% to 100% through the purchase of the ownership interest of
Acacia Media Technologies' other member in November 2001, and the purchase of
additional equity interests in CombiMatrix Corporation in July 2000, we incurred
additional amortization expense in 2001 as compared to 2000 relating to the
intangible assets acquired. See "Recent Accounting Pronouncements" for summary
of pronouncements affecting amortization of goodwill in future periods.
LOSS ON DISPOSAL OF CONSOLIDATED SUBSIDIARIES. In 2001, loss on disposal of
consolidated subsidiaries was zero as compared to $1.0 million in 2000. In the
fourth quarter of 2000, we recorded $1.0 million in write-offs of early stage
investments.
OTHER INCOME (EXPENSE), NET. In 2001, other income, net (primarily
comprised of interest income, realized and unrealized gains and losses on
trading securities, equity in losses of affiliates and other) was $4.2 million
as compared to $1.2 million in net other expense in 2000.
-154-
INTEREST INCOME. In 2001, interest income was $3.8 million as compared
to $3.1 million in 2000. The increase in interest income during 2001 was due to
higher cash balances during 2001 as compared to 2000, resulting from various
private equity financings and the receipt of significant license fee payments by
Soundview Technologies during the year. The increase in interest income for 2001
was partially offset by the impact of a decrease in interest rates on our
short-term investments related to sharp interest rate cuts by the Federal Open
Market Committee and other external economic factors negatively impacting rates
of return on short-term investments occurring during the third and fourth
quarters of 2001.
REALIZED GAINS ON SHORT-TERM INVESTMENTS. In 2001, net realized gains
on short-term investments was $0.4 million as compared to no realized gains on
short-term investments in 2000. The increase in realized gains on short-term
investments during 2001 was due to realized gains recorded on our short-term
investments classified as trading securities during 2001.
UNREALIZED GAINS ON SHORT-TERM INVESTMENTS. In 2001, net unrealized
gains were $0.2 million as compared to no unrealized gains in 2000. The increase
is due to our investment in equity securities during 2001 classified as trading
securities under SFAS No. 115, "Accounting for Certain Investments in Debt and
Equity Securities" ("SFAS No. 115"). Pursuant to SFAS No. 115, unrealized gains
and losses on trading securities are recorded in the consolidated statement of
operations. In 2000, all of our short-term investments were classified as
available-for-sale, and pursuant to SFAS No. 115, unrealized gains and losses
were recorded as a separate component of comprehensive income (loss) in
stockholders' equity until realized.
EQUITY IN LOSSES OF AFFILIATES. In 2001, equity in losses of
affiliates was $0.2 million as compared to $1.7 million in 2000. Losses during
2001 were comprised of a loss of $0.2 million for our investment in Acacia Media
Technologies, as determined by the equity method of accounting through November
1, 2001. We increased our ownership percentage in Acacia Media Technologies to
100% on November 1, 2001. Losses during 2000 were comprised of a loss of $0.3
million for our investment in Signature-mail.com, a loss of $0.2 million for our
investment in Acacia Media Technologies, a loss of $0.1 million for our
investment in Whitewing Labs and a loss of $1.1 for our investment in
Mediaconnex, as determined by the equity method of accounting. We wrote-off our
equity investments in Signature-mail.com, Whitewing Labs and Mediaconnex, as of
December 31, 2000.
MINORITY INTERESTS. Minority interests in the losses of consolidated
subsidiaries increased to $17.5 million in 2001 as compared to $9.2 million in
2000. The increase in minority interests in 2001 was primarily due to the
increase in losses incurred by CombiMatrix Corporation as a result of increased
non-cash stock compensation amortization charges, its continued expansion of
research and development efforts and increased marketing, general and
administrative expenses. The increase in 2001 minority interests resulting from
CombiMatrix Corporation's increased losses was partially offset by minority
interests in the income of Soundview Technologies from January through June
2001. We increased our ownership percentage in Soundview Technologies to 100% in
June 2001.
(PROVISION) BENEFIT FOR INCOME TAXES. In 2001, the provision for income
taxes was $0.8 million as compared to a benefit of $0.07 million in 2000. The
increase in the provision for income taxes in 2001 was primarily due to a
significant increase in taxable income generated by Soundview Technologies
related to its patent infringement settlement and patent licensing activities as
compared to the 2000 period.
DISCONTINUED OPERATIONS. On February 13, 2001, the board of directors of
Soundbreak.com resolved to cease operations as of February 15, 2001 and
liquidate the remaining assets and liabilities of the company. Accordingly, we
reported the results of operations and the estimated loss on disposal of
Soundbreak.com as results of discontinued operations in our 2000 consolidated
statements of operations and comprehensive loss. Discontinued operations of
Soundbreak.com included $7.4 million of loss from discontinued operations in
2000 and $2.1 million of accrued expenses in connection with its cessation of
operations.
2000 COMPARED TO 1999
NET REVENUE. In 2000, net revenue was $0.06 million as compared to $0.3
million in 1999. The decrease in net revenues was primarily due to an increase
of $0.04 million in advertising revenues, offset by a decrease of $0.1 million
in CombiMatrix Corporation revenue from federal grants, and a decrease of $0.1
million in capital management fees due to the closure in 1999 of Acacia Research
Capital Management division, which was the
-155-
general partner in two domestic private investment partnerships and an
investment advisor to two offshore private investment corporations. During 2000,
grant revenue was $0.02 million as compared to $0.1 million in grant revenue
during 1999. The grant revenue resulted from CombiMatrix Corporation's award of
two grants in July 1999 for Phase I SBIR from the Department of Energy and the
Department of Defense and a Phase II SBIR Department of Defense contract for the
use of its biochip technology to develop nanode array sensor microchips in
January 2000. No capital management fee income, which includes performance fee
income, was earned during 2000 compared to $0.1 million during 1999 due to the
closure of the Acacia Research Capital Management division on December 31, 1999.
Costs associated with exiting this business were not material.
RESEARCH AND DEVELOPMENT EXPENSES. We incurred research and development
expenses of $11.9 million in 2000 as compared to $1.8 million in 1999. Research
and development expenses for 2000 are comprised of costs primarily incurred by
CombiMatrix Corporation, which increased to $9.3 million from $2.4 million in
1999. This increase was due to an increase in the number of CombiMatrix
Corporation personnel and larger laboratory facilities to accommodate the
expansion of its research and development efforts focused on developing and
improving microarray synthesis techniques. In addition, $2.5 million of acquired
in-process research and development expense was charged to income related to our
acquisition of an additional ownership position from existing CombiMatrix
Corporation stockholders in July 2000.
In 2000, research and development expenses for non-cash stock compensation
(including warrants), all of which related to CombiMatrix Corporation, totaled
$3.4 million. In 1999, research and development expenses for non-cash stock
compensation were not material.
MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES. We incurred marketing,
general and administrative expenses of $22.1 million in 2000, compared to
expenses of $4.4 million in 1999. The increase in marketing, general and
administrative expenses in 2000 was primarily due to general expansion of our
operations, including an increase in business development expenses as we
explored new business opportunities, the extensive use of consultants to assist
in solving specialized issues or providing specific services, an increase in
facilities costs due to the expansion of our office facilities and increased
personnel and payroll expenses. In 2000, CombiMatrix Corporation relocated from
Burlingame, California to Mukilteo, Washington. This relocation was completed
during the third quarter, and related costs of $0.8 million were incurred in
2000 in connection with the relocation.
Marketing, general and administration expenses included $7.3 million ($6.5
million related to CombiMatrix Corporation) and $0.2 million of non-cash stock
compensation charges for 2000 and 1999, respectively.
AMORTIZATION OF PATENTS AND GOODWILL. In 2000, amortization expenses
relating to patents and goodwill were $2.3 million as compared to $1.6 million
in 1999. As a result of our purchase of additional equity interests in Soundview
Technologies in July 1997 and January 1998, in MerkWerks in January 1998 and
June 1999 and in CombiMatrix Corporation in July 2000, we are incurring
increased amortization expenses each quarter for periods ranging from three to
five years relating to the intangible assets acquired.
LOSS ON DISPOSAL OF CONSOLIDATED SUBSIDIARIES. In 2000, loss on disposal of
consolidated subsidiaries was $1.0 million as compared to zero in 1999. In the
fourth quarter of 2000, we recorded $1.0 million in write-offs of early stage
investments.
OTHER EXPENSE, NET. In 2000, other expense, net (primarily comprised of
interest income, write-off of equity investments, equity in losses of affiliates
and other) totaled $1.2 million as compared to other expense, net of $1.0
million in 1999. The increase in other expense, net in 2000 was primarily due to
$2.6 million of write-offs of equity investments in Signature-mail.com,
Whitewing Labs and Mediaconnex, and an increase in equity in losses of
affiliates, partially offset by an increase in interest income in 2000.
INTEREST INCOME. In 2000, interest income was $3.1 million as compared
$0.3 million in 1999. The increase was due to higher cash balances in 2000 as
compared to 1999. We received $64.5 million in cash from outside investors in
connection with our warrant call and private equity financings for Acacia
Research and CombiMatrix Corporation in 2000.
-156-
INTEREST EXPENSE. In 2000, we reported no interest expense as compared
to $0.3 million in 1999. The expense incurred in 1999 was primarily attributable
to CombiMatrix Corporation and relates to three-year 6% unsecured subordinated
promissory notes issued by CombiMatrix Corporation in a private offering
completed in March 1998. Warrants to purchase CombiMatrix Corporation common
stock were also issued in this private placement. During the fourth quarter of
1999, CombiMatrix Corporation offered holders of the unsecured subordinated
notes the opportunity to convert their outstanding principal balance into
CombiMatrix Corporation common stock and all noteholders had converted as of
December 1999.
EQUITY IN LOSSES OF AFFILIATES. In 2000, equity in losses of
affiliates was $1.7 million as compared to $1.1 million in 1999. In 2000, losses
were primarily attributable to a loss of $1.1 million for our investment in
Mediaconnex. This amount was offset by a decrease in the recognized losses for
Whitewing Labs, Acacia Media Technologies and Signature-mail.com totaling $0.6
million in 2000 as compared to $1.1 million in 1999.
MINORITY INTERESTS. In 2000, minority interests in the losses of
consolidated subsidiaries was $9.2 million as compared to $1.2 million in 1999.
The increase in minority interests in 2000 was primarily due to the increase in
losses incurred by CombiMatrix Corporation as a result of its continued
expansion of research and development efforts, an increase in non-cash stock
compensation charges and increased marketing, general and administrative
expenses.
DISCONTINUED OPERATIONS. On February 13, 2001, the board of directors of
Soundbreak.com resolved to cease operations as of February 15, 2001 and
liquidate the remaining assets and liabilities of the company. Accordingly, we
reported the results of operations and the estimated loss on disposal of
Soundbreak.com as results of discontinued operations in the consolidated
statements of operations and comprehensive loss in 2000. Discontinued operations
of Soundbreak.com included $7.4 million of loss from discontinued operations in
2000 and $2.1 million of accrued expenses to be incurred in connection with its
cessation of operations. Operating results in 1999 were restated to present
Soundbreak.com as discontinued operations resulting in a loss from discontinued
operations of $0.8 million in 1999.
INFLATION
Inflation has not had a significant impact on Acacia Research.
LIQUIDITY AND CAPITAL RESOURCES
At June 30, 2002, we had cash and short-term investments of $66.4 million
on a consolidated basis, including discontinued operations, of which Acacia
Research, on a stand-alone basis excluding its subsidiaries, had $37.2 million.
At December 31, 2001, we had cash and short-term investments of $84.6 million on
a consolidated basis, including discontinued operations, of which Acacia
Research, on a stand-alone basis excluding its subsidiaries, had $44.2 million.
Consolidated working capital was $53.6 million and $72.4 million at June 30,
2002 and December 31, 2001, respectively. Highlights of the financing and
commitment activities for the six months ended June 30, 2002 and the year ended
December 31, 2001 include the following:
FIRST AND SECOND QUARTER 2002
o In February 2002, in conjunction with the relocation of our corporate
headquarters, we entered into a non-cancelable lease agreement to
lease approximately 7,143 square feet of office space in Newport
Beach, California through February 2007. Minimum annual rental
commitments under this operating lease are $255,000 in 2002; $286,000
in 2003; $295,000 in 2004; $303,000 in 2005; $312,000 in 2006; and
$39,000 in 2007.
YEAR ENDED DECEMBER 31, 2001
o In January 2001, we completed an institutional private equity
financing raising gross proceeds of $19.0 million through the issuance
of 1,107,274 units. Each unit consists of one share of our common
stock and one three-year callable common stock purchase warrant. Each
common stock purchase warrant
-157-
entitles the holder to purchase 1.10 shares of our common stock at a
price of $19.09 per share and is callable by us once the closing bid
price of our common stock averages $23.86 or above for 20 or more
consecutive trading days on the NASDAQ National Market. We issued an
additional 20,000 units in lieu of cash payments for finders' fees in
conjunction with the private placement.
o In May 2001, Advanced Material Sciences completed a private equity
financing raising gross proceeds of $2.0 million through the issuance
of 2,000,000 shares of common stock. Advanced Material Sciences issued
an additional 29,750 shares of common stock, in lieu of cash payments,
and warrants to purchase approximately 54,000 shares of common stock,
for finders' fees in connection with the private placement. Each
common stock purchase warrant entitles the holder to purchase shares
of Advanced Material Sciences common stock at a price of $1.10 per
share.
o In September 2001, CombiMatrix Corporation entered into a sale and
leaseback arrangement with a bank, providing up to $7.0 million in
financing for equipment and other capital purchases. Pursuant to the
terms of the agreement, certain equipment and leasehold improvements,
totaling $2.6 million in net book value, were sold to the bank at a
purchase price of $3.0 million resulting in a deferred gain on the
sale of assets of $0.4 million. In addition, CombiMatrix Corporation
entered into a capital lease arrangement to lease the fixed assets
from the bank. The capital lease agreement provides CombiMatrix
Corporation with the option to purchase the equipment for a nominal
amount at the end of the lease term, which expires in September 2004.
o In October 2001, CombiMatrix Corporation formed a joint venture with
Marubeni Japan, one of Japan's leading trading companies. The joint
venture, based in Tokyo, will focus on development and licensing
opportunities for CombiMatrix Corporation's biochip technology with
pharmaceutical and biotechnology companies in the Japanese market.
Marubeni made an investment of $1.0 million to acquire a ten percent
minority interest in the joint venture.
Net cash used in continuing operating activities was $13.2 million for the
six months ended June 30, 2002. Net cash used in continuing operations was
primarily due to a loss from continuing operations of $15.1 million, net sales
of trading securities totaling $3.1 million and net cash outflows related to
working capital totaling $1.2 million. At June 30, 2002, we had an additional
$0.4 million of net cash used in operating activities of discontinued
operations.
Net cash used in continuing operating activities was $10.4 million in 2001.
Cash used for continuing operations is primarily due to a loss from continuing
operations of $22.3 million, increased by minority interests of $17.5 million
and the purchase of trading securities of $4.1 million, partially offset by
non-cash expenses including depreciation, amortization and compensation expense
relating to stock options and warrants in the amount of $24.7 million, and
license fee, up-front and milestone payments received and recorded as deferred
revenues at December 31, 2001 totaling $7.5 million. In 2001, we had an
additional $2.2 million of net cash used in operating activities of discontinued
operations.
Net cash provided by investing activities was $4.2 million during the six
months ended June 30, 2002 primarily related to the sale of certain short-term
securities to fund CombiMatrix Corporation's continuing operations. Net cash
provided by investing activities of continuing operations was $13.0 million in
2001. Significant investing activities include a net sale of short-term
investments classified as available-for-sale of $19.6 million, net of purchases
of common stock from minority stockholders of subsidiaries totaling $2.6 million
and purchases of additional equity in consolidated subsidiaries totaling $3.3
million. We had an additional $0.2 million used in investing activities of
discontinued operations.
We did not conduct any significant financing activities during the six
months ended June 30, 2002. Our net cash provided by financing activities was
$23.2 million in 2001. Cash provided by financing activities in 2001 was
primarily due to $18.3 million of net proceeds from an institutional private
equity financing in January 2001, capital contributions from minority
stockholders of subsidiaries totaling $3.3 million and proceeds from the
exercise of stock options and warrants totaling $1.8 million.
-158-
Warrants issued by us in connection with our private placement completed in
January 2001 contain call and redemption provisions should the closing bid price
of our common stock exceed $23.86 per share for 20 or more consecutive trading
days. The exercise price per share for the common stock underlying the warrants
is $19.09. In the event the requirements to call the warrants are satisfied, we
may call such warrants and we expect most, if not all, of the holders to
exercise such warrants in response. There can be no assurance that the closing
bid price of our common stock will exceed all such thresholds or that, if it
does, we will decide to call the warrants.
We have sustained losses since our inception contributing to an accumulated
deficit of $116.1 million at June 30, 2002 on a consolidated basis, which
includes operating losses of $21.5 million, $43.2 million and $37.2 million for
the six months ended June 30, 2002 and the years ended December 31, 2001 and
2000, respectively. The consolidated accumulated deficit of $116.1 million also
includes an increase related to a reclassification of accumulated deficit in the
amount of $21.7 million to permanent capital representing the fair value of the
ten percent stock dividend distributed to stockholders in 2001. There can be no
assurance that we will become profitable. If we do, we may never be able to
sustain profitability. We expect to incur significant losses for the foreseeable
future. We are making efforts to reduce expenses and may take steps to raise
additional capital.
Generally, our subsidiary companies have relied primarily upon selling
equity securities, including sales to and loans from us, to generate the funds
needed to finance implementation of their plans of operations. In 2001, we began
to receive significant payments from our media technology licensing arrangements
and from our life sciences strategic partners and licensees. However, we may be
required to obtain additional financing through bank borrowings, debt or equity
financings or otherwise, which would require us to make additional investments
or face a dilution of our equity interests.
We have no significant commitments for capital expenditures in 2001. Our
minimum rental commitments on operating leases related to continuing operations
total $13.4 million through February 2007. We have no committed lines of credit
or other significant committed funding. However, we anticipate that existing
working capital reserves will provide sufficient funds for our operating
expenses for at least the next twelve months in the absence of making any major
new investments. We intend to seek additional financing to fund new or existing
businesses.
There can be no assurances that we will not encounter unforeseen
difficulties that may deplete our capital resources more rapidly than
anticipated. Any efforts to seek additional funding could be made through
equity, debt or other external financing and there can be no assurance that
additional funding will be available on favorable terms, if at all. Such
financing transactions may be dilutive to existing investors. If we fail to
obtain additional funding when needed, we may not be able to execute our
business plans and our business may suffer.
RECENT ACCOUNTING PRONOUNCEMENTS
Refer to Note 16 to the Acacia Research Corporation financial statements
included elsewhere herein.
CHANGE IN ACCOUNTING POLICY
Effective January 1, 2001, we changed our accounting policy for balance
sheet classification of employee stock-based compensation resulting from awards
in consolidated subsidiaries. Historically, the consolidated financial
statements have accounted for cumulative earned employee stock-based
compensation related to subsidiaries as a liability, under the caption "accrued
stock compensation." Management believes a change to reflect these cumulative
charges as minority interests is preferable as it better reflects the underlying
economics of the stock-based compensation transaction. As a result of the
change, effective January 1, 2001, minority interests has been increased by
$10.4 million, and accrued stock compensation of $10.4 million has been
decreased. The change in accounting policy does not affect previously reported
consolidated net income.
-159-
COMBIMATRIX GROUP MANAGEMENT'S DISCUSSION AND ANALYSIS
(A DEVELOPMENT STAGE DIVISION OF ACACIA RESEARCH CORPORATION)
You should read this discussion in conjunction with the CombiMatrix group,
a development stage division of Acacia Research, financial statements and
related notes and the Acacia Research consolidated financial statements and
related notes, both included elsewhere herein. Historical results and percentage
relationships are not necessarily indicative of operating results for any future
periods.
GENERAL
The CombiMatrix group is intended to reflect the performance of CombiMatrix
Corporation and Advanced Material Sciences, entities that are in the development
stage, and include all corporate assets, liabilities and transactions related to
Acacia Research's life sciences businesses. The CombiMatrix group core
technology opportunity in the life sciences sector has been primarily developed
through CombiMatrix Corporation, which was formed in October 1995. CombiMatrix
Corporation is a life science technology company with a proprietary system for
rapid, cost competitive creation of DNA and other compounds on a programmable
semiconductor chip. This proprietary technology has significant applications
relating to genomic and proteomic research. Advanced Material Sciences, which
was formed in November 2000, holds the exclusive license for CombiMatrix
Corporation's biological array processor technology in certain fields of
material sciences. Advanced Material Sciences has no operating history, and is a
majority owned subsidiary of Acacia Research.
CombiMatrix stock is intended to reflect the separate performance of the
respective division of Acacia Research, rather than the performance of Acacia
Research as a whole. The CombiMatrix group is not a separate legal entity.
Holders of AR-CombiMatrix stock will be stockholders of Acacia Research. As a
result, they will continue to be subject to all of the risks of an investment in
Acacia Research and all of its businesses, assets and liabilities. The assets
Acacia Research attribute to the CombiMatrix group could be subject to the
liabilities of the Acacia Technologies group.
The CombiMatrix group is developing technology that integrates a
semiconductor, proprietary materials, proprietary software, chemistry, and the
Internet into a system for use by pharmaceutical and biotechnology companies and
academic researchers in identifying and determining the roles of genes, gene
mutations and proteins. CombiMatrix Corporation's active biochip is a
semiconductor coated with a three-dimensional layer of porous material in which
DNA, RNA, peptides or small molecules can be synthesized or immobilized in
discrete test sites. Since inception, CombiMatrix Corporation's operating
activities have been devoted primarily to research and development of
technologies for its active biochip system, including the development of its
system, acquiring assets, recruiting personnel, business development and raising
capital.
During the first six months of 2002, the CombiMatrix group's financial
condition and results of operations were highlighted by the receipt of a
$100,000 Phase I National Institutes of Health grant for the development of its
protein biochip technology. In addition, the CombiMatrix group received and
recorded as revenue $413,000 in grant and project revenues, including $182,000
in grant revenue resulting from continuing performance under its Phase II Small
Business Innovative Research Department of Defense contract, $141,000 in
one-time contract research and development revenues and $90,000 in revenues
related to performance under its Phase I National Institutes of Health grant.
The CombiMatrix group also recognized $274,000 from the sale of a genomics
microarray synthesizer system to a government institution in Japan.
In 2001, the CombiMatrix group's financial condition and cash flows were
highlighted by the receipt of $6.4 million pursuant to separate license, supply
and research and development agreements with Roche Diagnostics GmbH ("Roche")
and the National Aeronautics and Space Administration ("NASA") and continued
performance under CombiMatrix Corporation's Phase II SBIR grant with the U.S.
Department of Defense. Both the Roche and NASA agreements were executed during
the third quarter of 2001. During the second quarter of 2001, CombiMatrix
Corporation created a wholly-owned subsidiary, CombiMatrix K.K. ("CombiMatrix
KK"), which became a majority-owned subsidiary during the fourth quarter of 2001
after selling 10% of its common stock for $1.0 million as part of a joint
venture agreement with Marubeni Japan, one of Japan's leading trading companies.
In addition, in the third quarter of 2001 CombiMatrix Corporation raised $3.0
million through the execution of a sale and leaseback transaction with a major
financial institution. CombiMatrix Corporation also continued the expansion
-160-
of its research and development activities throughout 2001, including the
relocation to its new research facilities and corporate headquarters in January
2001 located in Mukilteo, Washington. In addition, in May 2001, Advanced
Material Services completed a private equity financing raising gross proceeds of
$2.0 million through the issuance of 2,000,000 shares of common stock.
In 2000, the CombiMatrix group's financial condition and cash flows were
highlighted primarily by the continued expansion of research and development
activities, financing activities and the building of its core management and
scientific teams, as well as its relocation from California to a temporary
research facilities and corporate headquarters in Snoqualmie, Washington. In
July 2000, CombiMatrix Corporation was granted U.S. Patent No. 6,093,302, which
expires in July 2017, for its biochip microarray processor system. In November
2000, Advanced Material Science was formed, raising initial equity financing of
$3.0 million. In 1999, the CombiMatrix group's financial condition and cash
flows were highlighted primarily by research and development and financing
activities. In the following discussion and analyses, the period-to-period
comparisons must be viewed in light of the impact that the operating and
financing activities have had on the CombiMatrix group's financial condition and
results of operations.
Since inception, the CombiMatrix group has recognized revenues primarily
from activities anciallary to its core technologies, and has incurred
significant net losses. During the six months ended June 30, 2002 and the years
ended December 31, 2001, 2000 and 1999, the CombiMatrix group incurred net
losses of approximately $9.5 million, $28.0 million, $14.8 million and $1.6
million, respectively. At June 30, 2002 and December 31, 2001, the CombiMatrix
group's accumulated deficit was approximately $57.2 million and $47.8 million,
respectively. The losses have resulted principally from costs incurred in
research and development and from marketing, general and administrative costs
associated with the CombiMatrix group's operations. Operating expenses including
non-cash stock-based compensation expense increased to $49.5 million for the
year ended December 31, 2001, from $24.6 million for 2000 and $2.8 million for
1999. The CombiMatrix group expects to continue to incur net losses and negative
cash flow from operations for the foreseeable future due to significant
increases in research and development and marketing, general and administrative
expenses that will be necessary to further develop CombiMatrix group's
technologies towards commercialization. To date, the CombiMatrix group has
relied primarily upon selling equity securities to generate the funds needed to
finance the implementation of the CombiMatrix group's business strategies. The
CombiMatrix group cannot assure that it will not encounter unforeseen
difficulties that may deplete capital resources more rapidly than anticipated.
Any efforts to seek additional funds could be made through equity, debt or other
external financings; however, the CombiMatrix group cannot assure that
additional funding will be available on favorable terms, if at all. If the
CombiMatrix group fails to obtain additional funding when needed, the
CombiMatrix group may not be able to execute its business strategies and its
business may suffer.
On September 30, 2002, CombiMatrix Corporation and Dr. Donald Montgomery,
an officer and stockholder of CombiMatrix Corporation, entered into a settlement
agreement with Nanogen, Inc. to settle all pending litigation between the
parties. Pursuant to the terms of the settlement agreement, CombiMatrix
Corporation agreed to pay Nanogen $500,000 within 30 days of the settlement and
an additional $500,000 within one year of the settlement. CombiMatrix
Corporation also agreed to make quarterly payments to Nanogen equal to 12.5% of
total sales of products developed by CombiMatrix Corporation and its affiliates
and based on the patents that had been in dispute in the litigation, up to an
annual maximum of $1,500,000. The minimum quarterly payments under the
settlement agreement will be $37,500 per quarter for the period from October 1,
2003 through October 1, 2004, and $25,000 per quarter thereafter until the
patents expire. Also pursuant to the settlement agreement, CombiMatrix
Corporation agreed to issue 4,016,346 shares, or 17.5% of its outstanding shares
post-issuance, to Nanogen, subject to antidilution provisions under specified
circumstances, including the exercise of outstanding options and warrants and
issuances of additional capital stock of CombiMatrix Corporation, for a period
of up to three years.
STRATEGIC PARTNERSHIPS AND FINANCIAL HIGHLIGHTS
During 2001, CombiMatrix Corporation received significant payments from its
strategic partners and licensees. By continuing the CombiMatrix Corporation's
efforts with these partners and by identifying new strategic relationships, the
CombiMatrix group intends to maximize the opportunities in the life sciences
sector that will be created by commercializing its biochip system. Financing and
investing activities are listed in the "Liquidity and Capital Resources" section
that follows. Highlights of activities with the CombiMatrix group's strategic
partners
-161-
and other operating activities for the six months ended June 30, 2002 and the
year ended December 31, 2001 include:
o ROCHE
In July 2001, CombiMatrix Corporation entered into non-exclusive
worldwide license, supply, research and development agreements with Roche,
pursuant to which CombiMatrix Corporation and Roche will develop a platform
technology, providing a range of standardized biochips for use in important
research applications. These agreements were amended and restated September
2002. Under the agreements, Roche has made and will continue to make
payments for the deliverables stipulated and for expanded license and
manufacturing rights. Under the terms of the revised agreements, it is
contemplated that Roche will co-develop, use, manufacture, market and
distribute CombiMatrix Corporation's active biochip system for rapid
production of both catalog and customizable biochips. CombiMatrix
Corporation's goal is to develop a platform technology, providing a range
of standardized biochips for use in important research applications. Roche
has made and will continue to make payments for the deliverables
contemplated and for expanded license rights. The agreements provide for
minimum payments by Roche to CombiMatrix Corporation over the first three
years, including milestone achievement payments, payments for products,
royalties and payments for research and development projects. All payments
received under this agreement to date have been recorded as deferred
revenue at December 31, 2001. In December 2001, CombiMatrix Corporation
completed a major milestone in its strategic alliance with Roche, by
demonstrating several key performance metrics of its custom in-situ
microarray system. In February and May 2002, CombiMatrix Corporation
completed two additional milestones by delivering certain prototype
components of its microarray platform and by demonstrating certain
performance characteristics of the platform to Roche.
o NASA
In August 2001, CombiMatrix Corporation entered into a two-year
license and supply agreement with NASA. The agreement provides for the
license, purchase and use by the NASA Ames Research Center of CombiMatrix
Corporation's active biochip system to conduct biological research in both
terrestrial and extraterrestrial laboratories. All payments received under
this agreement have been recorded as deferred revenue at December 31, 2001.
As of December 31, 2001, CombiMatrix Corporation has received
non-refundable cash payments from NASA for their purchase of a microarray
synthesizer system as well as a license to use the technology for a 2-year
period. The existing agreement also provides for the sale of microarrays to
NASA in future periods. The NASA agreement contains customary contract
provisions regarding termination, including termination by either party in
the event of a breach of contract terms.
o CONTRACT RESEARCH AND DEVELOPMENT WITH THE U.S. GOVERNMENT
In February 2002, CombiMatrix Corporation was awarded a Phase I
National Institutes of Health grant for the development of its protein
biochip technology. The title of the grant is "Self-Assembling Protein
Microchips." This grant is in addition to a two-year Phase II SBIR grant
from the U.S. Department of Defense for the development of multiplexed chip
based assays for chemical and biological warfare agent detection.
During the first six months of 2002 and all of 2001, CombiMatrix
Corporation has recognized $638,000 of grant revenues from its SBIR Phase
II grant with the U.S. Department of Defense ("DOD"). CombiMatrix
Corporation's business relationship with the DOD began in July 1999 when
CombiMatrix Corporation was awarded an SBIR Phase I grant to use its active
biochip technology in connection with the development of detection devices
for chemical and biological warfare agents. This grant was completed and
$60,000 of revenues were recognized during 1999. CombiMatrix Corporation
was also awarded a $100,000 Department of Energy ("DOE") grant in July
1999, which was completed in March 2000. CombiMatrix Corporation recognized
$84,000 in the fourth quarter of 1999 and $17,000 in the first quarter of
2000 under this grant. In July 2000, CombiMatrix Corporation was awarded a
two-year $730,000 SBIR
-162-
Phase II grant to continue its research for the DOD. The CombiMatrix group
expects to recognize the final $91,000 in government grant revenue related
to the SBIR Phase II grant during the third quarter of 2002.
o JOINT VENTURE
In May 2001, CombiMatrix Corporation formed CombiMatrix KK, a Japanese
corporation located in Tokyo. In October 2001, the KK entered into a joint
venture agreement with Marubeni Japan, the purpose of which is to focus on
development and licensing opportunities for CombiMatrix Corporation's
active biochip system with pharmaceutical and biotechnology companies in
the Asian market. Marubeni Japan made a $1.0 million investment to acquire
a 10% minority interest in the joint venture. During the second quarter of
2002, the KK executed technology access and purchase agreements with two
government institutions in Japan, which included the sale of its first
genomic microarray synthesizer system for $274,000 to one of these
institutions.
EFFECT OF VARIOUS ACCOUNTING METHODS ON RESULTS OF OPERATIONS
The CombiMatrix group believes the following critical accounting policies
affect the group's more significant judgments and estimates used in the
preparation of the CombiMatrix group financial statements:
o basis of presentation;
o policies relating to AR-Acacia Technologies stock and AR-CombiMatrix
stock;
o revenue recognition;
o research and development expenses;
o litigation, claims and assessments;
o stock-based compensation;
o accounting for income taxes; and
o valuation of long-lived and intangible assets and goodwill.
BASIS OF PRESENTATION. The CombiMatrix group financial statements have been
prepared in accordance with generally accepted accounting principles and, taken
together with the Acacia Technologies' group financial statements, comprise all
the accounts included in the corresponding consolidated financial statements of
Acacia Research. The financial statements of each group reflect the financial
condition, results of operations and cash flows of the businesses included
therein. The financial statements of the CombiMatrix group include the accounts
or assets of Acacia Research specifically attributed to the CombiMatrix group
and give effect to the accounting policies that will be applicable upon
implementation of the recapitalization proposal. The CombiMatrix group financial
statements have been prepared on a basis that management believes to be
reasonable and appropriate and reflect the financial position, results of
operations and cash flows of businesses that comprise the CombiMatrix group and
all other corporate assets, liabilities and related transactions of Acacia
Research attributed to the CombiMatrix group, including allocated portions of
Acacia Research's general and administrative costs. Intergroup transactions
between the CombiMatrix group and the Acacia Technologies group have not been
eliminated in the separate group's financial statements.
The preparation of the divisional financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities,
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting periods. Actual results could differ from those estimates. If the
recapitalization proposal is implemented, significant management estimates and
judgments will be required related to the implementation of the management and
allocation policies applicable to the preparation of the divisional financial
statements of the CombiMatrix group. Individual group results may be
significantly impacted based on management's estimates and judgments.
POLICIES RELATING TO AR-ACACIA TECHNOLOGIES STOCK AND AR-COMBIMATRIX STOCK.
The management and allocation policies applicable to the preparation of the
divisional financial statements of the CombiMatrix group and the Acacia
Technologies group (collectively, "the groups") may be modified or rescinded, or
additional policies may be adopted, at the sole discretion of the Board at any
time without approval of the stockholders. The CombiMatrix
-163-
group's divisional financial statements reflect the application of the
management and allocation policies adopted by the Board to various corporate
activities, as described below. The CombiMatrix group's divisional financial
statements should be read in conjunction with Acacia Research's consolidated
financial statements and related notes.
TREASURY AND CASH MANAGEMENT POLICIES
Acacia Research will manage most treasury and cash management activities on
a de-centralized basis, with each separate group separately managing its own
treasury activities. Pursuant to treasury and cash management policies adopted
by the Board, after the date on which AR-CombiMatrix stock and AR-Acacia
Technologies stock is first issued, the following will apply:
o Acacia Research will attribute each future issuance of AR-Acacia
Technologies stock (and the proceeds thereof) to the Acacia
Technologies group and will attribute each future issuance of
AR-CombiMatrix stock (and the proceeds thereof) to the CombiMatrix
group;
o Acacia Research will attribute each future incurrence or issuance of
external debt or preferred stock (and the proceeds thereof) between
the Acacia Technologies group and the CombiMatrix group or entirely to
one group as determined by the Board, based on the extent to which
Acacia Research incurs or issues the debt or preferred stock for the
benefit of the CombiMatrix group and the Acacia Technologies group;
o Dividends on AR-Acacia Technologies stock will be charged against the
Acacia Technologies group, and dividends on AR-CombiMatrix stock will
be charged against the CombiMatrix group;
o Repurchases of AR-Acacia Technologies stock will be charged against
the Acacia Technologies group and repurchases of AR-CombiMatrix stock
will be charged against the CombiMatrix group;
o As of immediately prior to the first issuance of AR-CombiMatrix stock
and AR-Acacia Technologies stock, the CombiMatrix group and the Acacia
Technologies group shall be deemed to be allocated the cash and cash
equivalents held by the respective groups as of that date;
o Acacia Research will account for any cash transfers from Acacia
Research to or for the account of a group, from a group to or for the
account of Acacia Research, or from one group to or for the account of
the other group (other than transfers in return for assets or services
rendered) as short-term loans unless (A) the Board determines that a
given transfer (or type of transfer) should be accounted for as a
long-term loan, (B) the Board determines that a given transfer (or
type of transfer) should be accounted for as a capital contribution,
or (C) the Board determines that a given transfer (or type of
transfer) should be accounted for as a return of capital. There are no
specific criteria to determine when Acacia Research will account for a
cash transfer as a long-term loan, a capital contribution or a return
of capital rather than an inter-group revolving credit advance;
provided, however, that cash advances from Acacia Research to the
Acacia Technologies group or to the CombiMatrix group up to $25
million on a cumulative basis shall be accounted for as short-term or
long-term loans at interest rates at which Acacia Research could
borrow such funds and shall not be accounted for as a capital
contribution. The Board will make such a determination in the exercise
of its business judgment at the time of such transfer based upon all
relevant circumstances. Factors the Board may consider include,
without limitation: the current and projected capital structure of
each group; the financing needs and objectives of the recipient group;
the availability, cost and time associated with alternative financing
sources; and prevailing interest rates and general economic
conditions; and
o Any cash transfers accounted for as short-term loans will bear
interest at the rate at which Acacia Research could borrow such funds.
In addition, any cash transfers accounted for as a long-term loan will
have interest rates, amortization, maturity, redemption and other
terms that reflect the then-prevailing terms on which Acacia Research
could borrow such funds.
-164-
CORPORATE GENERAL AND ADMINISTRATIVE SERVICES AND FACILITIES
Acacia Research will allocate the cost of corporate general and
administrative services and facilities between the groups generally based upon
utilization. Where determinations based on utilization alone are impracticable,
Acacia Research will use other methods and criteria that management believes to
be equitable and to provide a reasonable estimate of the cost attributable to
each group. Except as otherwise determined by management, the allocated costs of
providing such services and facilities will include, without limitation, all
costs and expenses of personnel employed in connection with such services and
facilities, including, without limitation, all direct costs of such personnel,
such as payroll, payroll taxes and fringe benefit costs (calculated at the
appropriate annual composite rate therefor) and all overhead costs and expenses
directly related to such personnel and the services or facilities provided by
them. In addition, allocated costs will include all materials used in connection
with such services or facilities, billed at their net cost to the provider of
the services or facilities plus all overhead costs and expenses related to such
materials.
Except as may otherwise be specifically provided pursuant to the terms of
any agreements among Acacia Research and the groups or any resolutions of the
Board, the corporate general and administrative services and facilities to be
allocated between the groups will include, without limitation, legal services,
accounting services (tax and financial), insurance and deductibles payable in
connection therewith, employee benefit plans and administration thereof,
investor relations, stockholder services, and services relating to the board of
directors.
ALLOCATION OF FEDERAL AND STATE INCOME TAXES
Acacia Research will determine its federal income taxes and the federal
income taxes of its subsidiaries that own assets allocated between the groups on
a consolidated basis. Acacia Research will allocate consolidated federal income
tax provisions and related tax payments or refunds between the groups based
principally on the taxable income and tax credits directly attributable to each
group. Such allocations will reflect each groups' contribution, whether positive
or negative, to Acacia Research, consolidated federal taxable income and
consolidated federal tax liability and tax credit position. Acacia Research will
credit tax benefits that cannot be used by the group generating those benefits
but can be used on a consolidated basis to the group that generated such
benefits. Inter-group transactions will be treated as taxed on a separate return
basis.
Depending on the tax laws of the respective jurisdictions, state and local
income taxes are calculated on either a consolidated or combined basis between
the groups based on their respective contribution to such consolidated or
combined state taxable incomes. State and local income tax provisions and
related tax payments or refunds which are determined on a separate corporation
basis will be allocated between the groups in a manner designed to reflect the
respective contributions of the groups to Acacia Research, separate or local
taxable income.
REVENUE RECOGNITION. The CombiMatrix group derives revenues and deferred
revenues primarily from two sources: (i) government grant revenues and (ii)
multiple-element arrangements with strategic partners and licensees. As
described below, significant management judgments must be made and used in
connection with the revenue recognized or deferred in any accounting period.
Material differences may result in the amount and timing of revenues recognized
for any period if the CombiMatrix group makes different judgments.
Government Grants: Revenues from government grants and contracts are
recognized as the related services are performed, when the services have been
accepted by the grantor and collectibility is reasonably assured. Amounts
recognized are limited to amounts due from the grantor based upon the contract
or grant terms.
Revenues Under Multiple-Element Arrangements with Strategic Partners and
Licensees: Pursuant to Staff Accounting Bulletin No. 101, "Revenue Recognition
in Financial Statements" ("SAB No. 101"), an arrangement with multiple elements
or deliverables should be segmented into individual units of accounting based on
the separate deliverables only if there is objective and reliable evidence of
fair value to allocate the consideration received to the deliverables.
Accordingly, revenues from multiple-element arrangements involving license fees,
up-front payments and milestone payments, which are received or billable in
connection with other rights and services that represent continuing obligations
of the CombiMatrix group, are deferred until all of the multiple elements have
been delivered or until objective and verifiable evidence of the fair value of
the undelivered elements has been established. Upon establishing verifiable
evidence of the fair value of the elements in multiple-element arrangements, the
fair value is
-165-
allocated to each element of the arrangement, such as license fees or research
and development projects, based on the relative fair values of the elements. The
CombiMatrix group determines the fair value of each element in multiple-element
arrangements based on objective and reliable evidence of fair value, which is
determined for each element based on the price charged when the same element is
sold separately to a third party. If evidence of fair value of all undelivered
elements exists but evidence does not exist for one or more delivered elements,
then revenue is recognized using the residual method. Under the residual method,
the fair value of the undelivered elements is deferred and the remaining portion
of the arrangement fee is recognized as revenue.
For the period ended June 30, 2002 and for the year ended December 31,
2001, the CombiMatrix group received cash consideration from Roche for achieving
certain milestones, which have been classified as deferred revenue in the
CombiMatrix group's June 30, 2002 and December 31, 2001 consolidated balance
sheets due to the determination that the payments received related to elements
for which objective and reliable evidence of fair value does not currently
exist. Pursuant to SAB No. 101, the elements associated with the amounts
received to date and additional milestone payments will be treated as one
accounting unit. The up-front fees and cash payments received upon the
accomplishment of the contractual milestones will be deferred. Revenue will be
recognized when all of the related elements, for which objective and reliable
evidence does not exist, have been delivered and there is objective and reliable
evidence to support the fair value for all of the undelivered elements.
In general, revenues from the sale of products and/or services either are
recognized when (i) persuasive evidence of an arrangement exists, (ii) delivery
has occurred or services have been rendered, (iii) the fees are fixed and
determinable and (iv) collectibility is reasonably assured.
RESEARCH AND DEVELOPMENT EXPENSES. The CombiMatrix group has been and
continues to be engaged in a number of research and development initiatives to
improve and expand the active biochip system, including increasing the number of
test sites on active biochips from currently 1,024 sites per square centimeter
to over 10,000 sites per square centimeter and by developing additional
applications of CombiMatrix group's technology for drug discovery.
Except for the amortization of non-cash deferred stock compensation
discussed below, research and development expenses have been the CombiMatrix
group's largest expense category to date and consist of costs to develop a
semiconductor-based, active biochip system. These costs include salaries,
benefits, recruiting and relocation expenses attributed to CombiMatrix group's
research and development personnel, costs incurred in the development of
prototype products, contract engineering and development with third parties, the
consumption of laboratory materials and supplies and facilities costs. The
CombiMatrix group expects to continue to incur significant expenses for research
and development in order to commercialize an active biochip system. As a result,
the CombiMatrix group expects that the group's research and development expenses
will continue to increase in the near term.
In addition to the amended license agreement with Roche, CombiMatrix
Corporation also entered into a 5-year research and development agreement with
Roche, which is subdivided into separate projects. As a result, a portion of the
research and development expenses incurred during 2001 were driven by
obligations under these projects, which include continued development of
production microarray synthesis techniques, as well as higher density
microarrays. Research and development expenses required to complete these
projects are expected to continue into 2002 and 2003, pursuant to the timelines
outlined in the related agreements.
The CombiMatrix group accounts for research and development expenses
pursuant to SFAS No. 2, "Accounting for Research and Development Costs" ("SFAS
No. 2"). SFAS No. 2 requires that all research and development costs be charged
to expense as incurred. These would include the costs described above as well as
costs incurred to acquire technologies, which are utilized in research and
development and which have no alternative future use. Also, costs related to
filing and pursuing patent applications are expensed as incurred, as
recoverability of such expenditures is uncertain. Under SFAS No. 2, research and
development refers to a plan or design for a new product or process or for a
significant improvement to an existing product or process whether intended for
sale or use. Significant management estimates are required with respect to the
determination of which costs relate to plans or designs for a new product or
process or for a significant improvement to an existing product. Had the
CombiMatrix group determined that certain costs incurred were not related to
research and development activities, different accounting treatment for such
costs may have been required.
-166-
The costs of software developed or obtained for internal use is expensed as
incurred until certain capitalization criteria have been met, at which time such
costs are capitalized and reported as a component of property and equipment. To
date, these costs have been classified as research and development expenses.
Significant management estimates are required with respect to the determination
of when certain capitalization criteria have been met. Typically this occurs
upon completion of a prototype and design phase and a functioning model exists.
Thereafter, all software program costs are required to be capitalized and
amortized over the remaining estimated useful life of the software. Had
management made differing judgments regarding the capitalization criteria,
different accounting treatment of costs of software developed for internal use
may have been required.
In connection with the proposed purchase of the remaining minority
interests in CombiMatrix Corporation, Acacia Research expects approximately
$10.3 million of the purchase price to be allocated to in-process research and
development ("IPR&D"). Acacia Research management assumes responsibility for
determining the IPR&D valuation. The valuation is currently in process and is
expected to be completed prior to the mailing of proxy materials to Acacia
Research stockholders. The income approach to value is the method currently
being used by management to determine the fair market value of CombiMatrix
Corporation. Amounts included herein are based on preliminary determinations of
fair value.
The fair value assigned to purchased IPR&D was estimated by discounting to
present value the cash flows expected to result from each project once it has
reached technological feasibility. A discount rate consistent with the risks of
each project was used to estimate the present value of future cash flows. In
estimating future cash flows, management considered the contribution of its core
technology (for which a United States patent was obtained in July 2000) that
would be required for successful exploitation of purchased in-process
technology, in order to value the core and in-process technologies discretely.
As a result, future cash flows relating to each purchased IPR&D project were
reduced in order to reflect the contribution of core technology to each IPR&D
project. The cash flows from these projects attributable to core technology were
then separately valued to determine the intangible asset value of purchased core
technology. In determining the contribution of core technology to in-process
projects, management of CombiMatrix Corporation analyzed their historical
research and development efforts applicable to obtaining their patent from the
United States government vs. their efforts to commercially develop the
technology in various IPR&D projects. The ratio of core technology research and
development spending to IPR&D spending at the time of the merger was applied to
each IPR&D project cash flows to determine cash flows relating to core
technology.
The nature of the efforts to develop the purchased IPR&D into commercially
viable products principally relates to the completion and/or acceleration of
existing development programs. These efforts include testing current and
alternative materials used in microarray design, testing of existing and
alternative methods for microarray synthesis, developing prototype machinery
(including operating software) to synthesize, hybridize and read individual
microarrays, and to perform numerous experiments, or assays, with actual target
samples in order to determine customer protocols and procedures for using the
CombiMatrix group's microarray system. The costs of these efforts have been
included in the CombiMatrix group's projections to successfully launch the
purchased IPR&D projects. The resulting net cash flows from such projects are
based on Acacia Research management's estimates of revenues, cost of sales,
research and development expenses, sales and marketing expenses, general and
administrative expenses, the anticipated effect of income taxes, and required
returns on working capital, fixed assets and other assets necessary to support
the generation of these cash flows.
The discounting of net cash flows relating to core technology back to their
present value is based on CombiMatrix Corporation's weighted average cost of
capital ("WACC"). The WACC calculation produces the average required rate of
return of an investment in an operating enterprise, based on various required
rates of return from investments in various areas of that enterprise. The WACC
for CombiMatrix Corporation was approximately 20% at the time of the merger and
is the rate used in discounting the net cash flows attributable to purchased
core technology. Higher discount rates were used to value the purchased IPR&D
projects, however, due to the additional inherent risks associated with these
projects, including if and when the technologies will ultimately become
commercially viable, market acceptance, and threats from competing technologies.
The discount rates used for each project are described below.
The forecast data employed in the valuation analyses was based upon product
level forecast information obtained by Acacia Research from numerous internal
and external resources. These resources included publicly
-167-
available databases, external market research consultants, company-sponsored
focus CombiMatrix Corporation data and internal market experts. Acacia Research
senior management reviewed and challenged the forecast data and related
assumptions and utilized the information in analyzing IPR&D. The forecast data
and assumptions are inherently uncertain and unpredictable. However, based upon
the information available at this time, Acacia Research management believes the
forecast data and assumptions to be reasonable. These assumptions may be
incomplete or inaccurate, and no assurance can be given that unanticipated
events and circumstances will not occur. Accordingly, actual results may vary
from the forecasted results. Any such variance may result in a material adverse
effect on Acacia Research's financial condition and results of operations.
In the allocation of purchase price to the IPR&D, the concept of
alternative future use was specifically considered for each of the programs
under development. The acquired IPR&D consists of CombiMatrix Corporation's work
to complete each of the identified programs. The programs are very specific to
research market for which they are intended. There are no alternative uses for
the in-process programs in the event that the programs fail in their continued
development or are otherwise not feasible. The development effort for the
acquired IPR&D does not possess an alternative future use for Acacia Research as
defined by generally accepted accounting principles.
Below is a brief description of each IPR&D project including an estimation
of when management believes Acacia Research may realize revenues from the sale
of these products.
Genomics Biological Array System: As described elsewhere in this document,
CombiMatrix Corporation's genomics biological array processor system is being
developed to discretely immobilize sequences of DNA or RNA within individual
test sites on a modified semiconductor chip coated with a three-dimensional
layer of porous material. The system also includes proprietary hardware units
and related software applications to be able to synthesize materials onto the
chips, apply target samples of genetic materials and interpret the results. The
purpose of this system will be in gene expression profiling and SNP genotyping,
which could lead to the better understanding of gene function and ultimately
therapeutic discovery to fight disease. CombiMatrix Corporation's projected cash
flow models from commercializing this system include servicing CombiMatrix
Corporation's existing relationship with Roche as well as other strategic
partners, pharmaceutical, biotech and academic institutions. Although current
research and development efforts in commercializing this system have been
positive, there can be no assurance that the system will be successfully
launched and broadly accepted by the pharmaceutical, biotech and academic
research fields.
Proteomics Biological Array System: CombiMatrix Corporation's proteomics
biological array processor system is being developed to discretely immobilize
proteins and other small molecules within individual test sites on a modified
semiconductor chip in a similar fashion as described above for the genomics
biological array system. However, the chemistry used in synthesizing proteins,
the porous reaction layer coating used in synthesis and the software used to
design probes for protein synthesis are significantly different from what is
currently being developed for the genomics application, largely due to the
inherent biological differences between DNA molecules and protein molecules and
how they react with CombiMatrix Corporation's proprietary synthesis processes.
The proteomics biological array system will be used in determining protein
expression, variation and function within living cells, which could lead to the
better understanding of protein function and ultimately therapeutic discovery to
fight disease. Although current research and development efforts in
commercializing this system have been positive, there can be no assurance that
the system will be successfully launched and broadly accepted by the
pharmaceutical, biotech and academic research fields.
LITIGATION, CLAIMS AND ASSESSMENTS. The preparation of financial statements
in conformity with generally accepted accounting principles in the United States
of America requires management to make estimates and assumptions that affect the
reported amount of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements and the reported amounts
of revenues and expenses during the reporting period. Specifically, management
must make estimates of whether (i) it is probable that an asset has been
impaired or a liability has been incurred at the date of the financial
statements and (ii) whether the amount of loss can be reasonably estimated. In
the event that, in management's estimation it is probable that an asset has been
impaired or a liability has been incurred at the date of the combined financial
statements and amounts of loss can be reasonably estimated, the estimated
contingent loss is accrued by a charge to income.
-168-
Because of the uncertainties related to both probabilities of outcome and
amounts and ranges of potential loss associated with outstanding claims and
pending litigation at December 31, 2001, management is unable to make a
reasonable estimate of the likelihood of outcome or the liability that could
result from an unfavorable outcome. As such, the CombiMatrix group has not
accrued for any loss contingencies as of December 31, 2001. As additional
information becomes available, the CombiMatrix group will assess the potential
liability related to CombiMatrix group's pending litigation and revise
management's estimates. Such revisions in estimates of the potential liability
could materially impact our results of operation and financial position.
STOCK-BASED COMPENSATION. Stock option policies provide for the granting of
stock options to employees at exercise prices equal to the fair value of the
underlying stock on the date of grant, the fair values of which are determined
by the board of directors.
Non-cash stock compensation cost related to stock options issued to
employees is accounted for in accordance with APB Opinion No. 25, "Accounting
for Stock Issued to Employees," ("APB No. 25") and related interpretations.
Compensation cost attributable to such options is recognized based on the
difference, if any, between the closing market price of the stock on the date of
grant and the exercise price of the option. Compensation cost is deferred and
amortized on an accelerated basis over the vesting period of the individual
option awards using the amortization method prescribed in FASB Interpretation
No. 28, "Accounting for Stock Appreciation Rights and Other Variable Stock
Option or Award Plans" ("FIN No. 28"). Non-cash compensation cost of stock
options and warrants issued to non-employee service providers, which has not
been significant, is accounted for under the fair value method required by SFAS
No. 123 and Emerging Issues Task Force Issue No. 96-18, "Accounting for Equity
Instruments That Are Issued to Other Than Employees for Acquiring, or in
Conjunction with Selling, Goods or Services."
During the year ended December 31, 2000, the CombiMatrix group recorded
deferred non-cash stock compensation charges aggregating approximately $53.8
million in connection with the granting of stock options during 2000. Pursuant
to policy, these stock options were originally granted at exercise prices equal
to the fair value of CombiMatrix Corporation's underlying stock on the date of
grant as determined by the board of directors. However, such exercise prices
were subsequently determined to be granted at exercise prices below fair value
due to a substantial step-up in the fair value of stock pursuant to a valuation
provided by an investment banker in contemplation of CombiMatrix Corporation's
potential initial public offering in 2000. In connection with the proposed
initial public offering and pursuant to SEC rules and guidelines, the
CombiMatrix group was required to reassess the value of stock options issued
during the one-year period preceding the potential initial public offering and
utilize the stepped-up fair value provided by the investment banker for purposes
of determining whether such stock option issuances were compensatory, which
resulted in the CombiMatrix group recognizing $53.8 million in deferred non-cash
stock compensation charges in 2000 and $729,000 in 2001. These non-cash deferred
stock compensation charges are being amortized using the amortization method
prescribed in FIN No. 28 over their respective option vesting periods, which
range from one to four years. Non-cash stock compensation charges during the
first six months of 2002 and for the year ended December 31, 2001 totaled $3.5
million and $20.0 million, respectively. These charges related primarily to the
continued amortization of our deferred stock compensation. Pursuant to the
vesting terms of the outstanding options, the CombiMatrix group will incur
non-cash stock compensation amortization expenses of approximately $3.2 million
for the remaining six months of 2002, $3.3 million in 2003 and $1.1 million in
2004.
During the third and fourth quarters of 2001, certain unvested stock
options were forfeited. Pursuant to the provisions of APB Opinion No. 25 and
related interpretations, the reversal of previously recognized non-cash stock
compensation expense on forfeited unvested stock options had the effect of
reducing overall stock compensation expense by approximately $4.7 million during
2001. In addition, the forfeiture of certain unvested options during 2001
resulted in a $13.2 million reduction of remaining deferred non-cash stock
compensation expense scheduled to be amortized in future periods.
In connection with the proposed acquisition of the remaining minority
interest of CombiMatrix Corporation, the exchange of CombiMatrix Corporation
Common Stock options for AR-CombiMatrix options will result in a new measurement
date for those awards. Accordingly, deferred stock-based compensation expense of
approximately $3.1 million will arise and will be amortized in conformity with
FIN 28.
-169-
Amounts to be amortized in future periods reflected above may be impacted
by certain subsequent stock option transactions including modification of terms,
cancellations, forfeitures and other activity.
ACCOUNTING FOR INCOME TAXES. In conjunction with the preparation of the
CombiMatrix group's financial statements, Acacia Research is required to
estimate income taxes in each of the jurisdictions in which Acacia Research
operates. This process involves Acacia Research estimating actual current tax
exposure together with assessing temporary differences resulting from differing
treatment of items, such as deferred revenue and asset depreciation for tax and
accounting purposes. These differences result in deferred tax assets and
liabilities, which are included within our balance sheet. Acacia Research must
then assess the likelihood that its deferred tax assets will be recovered from
future taxable income and to the extent Acacia Research believes that recovery
is not likely, Acacia Research must establish a valuation allowance. To the
extent Acacia Research establishes a valuation allowance or increases this
allowance in a period, Acacia Research must include an expense within the tax
provision in the group statements of operations.
Significant management judgment is required in determining the provision
for income taxes, deferred tax assets and liabilities and valuation allowance.
Acacia Research has recorded a full valuation allowance against net deferred tax
assets of $20.5 million as of December 31, 2001, due to uncertainties related to
the ability to utilize deferred tax assets, primarily consisting of certain net
operating losses carried forward, before they expire. In assessing the need for
a valuation allowance, Acacia Research has considered estimates of future
taxable income, the period over which deferred tax assets may be recoverable,
history of losses and assessment of the probability of continuing losses in the
foreseeable future. In management's estimate, any positive indicators, including
forecasts of potential future profitability of businesses, are outweighed by the
uncertainties surrounding estimates and judgments of potential future taxable
income. In the event that actual results differ from these estimates or Acacia
Research adjusts these estimates should Acacia Research believe it would be able
to realize all or a portion of these deferred tax assets in the future, an
adjustment to the valuation allowance would increase income in the period such
determination was made. Any changes in the valuation allowance could materially
impact the financial position and results of operations.
If the recapitalization proposal is approved, Acacia Research will
determine its federal income taxes and the federal income taxes of its
subsidiaries that own assets allocated between the groups on a consolidated
basis. Consolidated federal income tax provisions and related tax payments or
refunds will be allocated between the groups based principally on the taxable
income and tax credits directly attributable to each group. Such allocations
will reflect each group's contribution, whether positive or negative, to Acacia
Research's consolidated federal taxable income and consolidated federal tax
liability and tax credit position. Acacia Research will credit tax benefits that
cannot be used by the group generating those benefits but can be used on a
consolidated basis to the group that generated such benefits.
VALUATION OF LONG-LIVED AND INTANGIBLE ASSETS AND GOODWILL. The CombiMatrix
group assesses the impairment of identifiable intangibles, long-lived assets and
related goodwill whenever events or changes in circumstances indicate that the
carrying value may not be recoverable. Factors the CombiMatrix group considers
important, which could trigger an impairment review include the following:
o significant underperformance relative to expected historical or
projected future operating results;
o significant changes in the manner of use of the acquired assets or the
strategy for our overall business;
o significant negative industry or economic trends; and
o significant decline in the AR-CombiMatrix stock price for a sustained
period.
When the CombiMatrix group determines that the carrying value of
intangibles, long-lived assets and related goodwill may not be recoverable based
upon the existence of one or more of the above indicators of impairment, the
CombiMatrix group measures any impairment based on a projected discounted cash
flow method using a discount rate determined by management to be commensurate
with the risk inherent in our current business model. Net intangible assets,
long-lived assets and goodwill amounted to $13.7 million as of December 31,
2001.
In 2002, SFAS No. 142, "Goodwill and Other Intangible Assets" ("SFAS No.
142"), became effective and as a result, the CombiMatrix group will cease to
amortize approximately $2.9 million of goodwill effective January 1, 2002. The
CombiMatrix group recorded approximately $0.9 million of amortization of
goodwill during 2001. In
-170-
lieu of amortization an initial impairment review of goodwill will be performed
in 2002 and an annual impairment review thereafter. In connection with the
adoption of SFAS No. 142, the CombiMatrix group performed a transitional
goodwill impairment assessment and determined that there was no impairment of
goodwill. However, there can be no assurance that a material impairment charge
will not be recorded in future periods.
In August 2001, the FASB issued SFAS No. 144, "Accounting for the
Impairment or Disposal of Long-Lived Assets" ("SFAS No. 144"), which addresses
financial accounting and reporting for the impairment of long-lived assets and
for long-lived assets to be disposed of. SFAS No. 144 requires long-lived assets
to be tested for recoverability whenever events or changes in circumstances
indicate that its carrying amount may not be recoverable. In conjunction with
such tests, it may be necessary to review depreciation estimates and methods as
required by APB Opinion No. 20, "Accounting Changes," or the amortization period
as required by SFAS No. 142. The adoption of SFAS No. 144 did not have a
material impact on the CombiMatrix group's financial position or operating
results.
COMBIMATRIX GROUP
FOR THE THREE MONTHS FOR THE SIX MONTHS
FOR THE YEARS ENDED DECEMBER 31, ENDED JUNE 30, ENDED JUNE 30,
-------------------------------- -------------------- ------------------
RESULTS OF OPERATIONS (IN THOUSANDS) 2001 2000 1999 2002 2001 2002 2001
-------- -------- ------- ------- ------- ------- --------
(UNAUDITED) (UNAUDITED)
Grant and contract revenues ................... $ 456 $ 17 $ 144 $ 164 $ 91 $ 413 $ 274
Product revenue ............................... -- -- -- 274 -- 274 --
Cost of sales ................................. -- -- -- (253) -- (253) --
Research and development expenses ............. (11,656) (8,415) (1,806) (5,026) (2,651) (7,694) (5,802)
Non-cash stock compensation expenses - R&D .... (7,183) (3,397) -- (692) (2,013) (1,113) (4,411)
Marketing, general and administrative
expenses ................................... (16,690) (5,524) (897) (2,927) (3,747) (5,211) (7,446)
Non-cash stock compensation expenses - MG&A ... (12,780) (6,598) (36) (1,443) (5,166) (2,434) (10,364)
Amortization of patents and goodwill .......... (1,203) (640) (30) (99) (301) (198) (599)
Other income (expense), net ................... 2,055 1,662 (224) 89 558 278 1,291
Benefit (provision) for income taxes .......... 155 79 (2) 39 39 79 75
Minority interests ............................ 18,817 8,300 1,248 3,979 5,321 6,377 10,839
Cumulative effect of change in accounting
principle .................................. -- (246) -- -- -- -- --
-------- -------- ------- ------- ------- ------- --------
Division net loss ............................. $(28,029)) $(14,762) $(1,603) $(5,895) $(7,869) $(9,482) $(16,143)
======== ======== ======= ======= ======= ======= ========
THREE AND SIX MONTHS ENDED JUNE 30, 2002 COMPARED TO THE THREE AND SIX MONTHS
ENDED JUNE 30, 2001
GRANTS AND CONTRACTS REVENUES. Grant and contract revenues were $164,000
and $91,000 during the three months ended June 30, 2002 and 2001, respectively.
In addition to $91,000 of DOD grant revenues recognized in both periods, the
CombiMatrix group recognized $73,000 of NIH grant revenues during the second
quarter of 2002. During the six months ended June 30, 2002 and 2001, grant and
contract revenues were $413,000 and $274,000, respectively. The increase in
revenues was due primarily to recognition of a one-time contract research and
development fee of $141,000 in addition to the DOD and NIH revenues recognized
during this period, whereas the grant revenues recognized during the six months
ended June 30, 2001 was solely from grant revenues recognized from the DOD
grant. The CombiMatrix group expects to recognize $91,000 and $10,000 under its
DOD and NIH grants in the third quarter of 2002, respectively, which represents
final payments under both of these grants.
PRODUCT REVENUES AND COST OF SALES. During the three and six months ended
June 30, 2002, product revenues were $274,000 as compared to $0 during the same
periods ended June 30, 2001. During the three and six months ended June 30,
2002, cost of sales was $253,000 as compared to $0 during the same periods ended
June 30, 2001. Product revenues and cost of sales were recognized as a result of
the second quarter 2002 sale of a genomics microarray synthesizer and related
hardware to a Japanese government institution by the CombiMatrix group's
Japanese subsidiary.
RESEARCH AND DEVELOPMENT. During the three months ended June 30, 2002,
research and development expenses were $5.0 million, as compared to $2.7 million
during the same period ended June 30, 2001. During the six
-171-
months ended June 30, 2002, research and development expenses were $7.7 million,
as compared to $5.8 million during the same period ended June 30, 2001. The
increase in research and development expenses for the periods in 2002 as
compared to the same periods in 2001 was primarily due to an increase in
activities related to the CombiMatrix group's continuing performance obligations
under the product commercialization phase of its license, supply, research and
development agreements with Roche. These activities include increases in labor,
supplies and materials, development of prototype microarrays and instruments,
and the use of outside consultants for certain engineering and manufacturing
efforts. Since July 2001, most of the CombiMatrix group's research and
development efforts have been driven by obligations under its agreements with
Roche. These projects include development of production microarray synthesis
techniques, development of higher density microarrays and related
instrumentation and software. These projects are expected to continue into 2005
as determined by the timelines specified in the agreements.
MARKETING, GENERAL AND ADMINISTRATIVE. During the three months ended June
30, 2002, marketing, general and administrative expenses were $2.9 million, as
compared to $3.8 million during the same period ended June 30, 2001. During the
six months ended June 30, 2002, marketing, general and administrative expenses
were $5.2 million, as compared to $7.4 million during the same period ended June
30, 2001. The decrease in marketing general and administrative expenses for the
periods in 2002 as compared to the same periods in 2001 was due primarily to
reductions in the CombiMatrix group's sales and marketing staff and related
expenses, decreased recruitment and relocation expenses, and reduced legal fees
incurred during the first and second quarters of 2002 compared to the same
periods in 2001. Included in marketing, general and administrative expenses are
allocated corporate charges of $0.3 million and $0.6 million for the three and
six months ended June 30, 2002, respectively, compared to $0.4 million and $0.6
million for the same periods ended June 30, 2001, respectively.
NON-CASH STOCK COMPENSATION EXPENSE.
RESEARCH AND DEVELOPMENT. During the three and six months ended June 30,
2002, research and development related non-cash stock compensation charges, were
$0.7 million and $1.1 million, respectively, as compared to $2.0 million and
$4.4 million, respectively, during the comparable periods in 2001.
MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES. During the three and six
months ended June 30, 2002, marketing, general and administrative non-cash stock
compensation charges were $1.4 million and $2.4 million, respectively, as
compared to $5.2 million and $10.4 million, respectively, in the comparable
periods in 2001.
The decrease in non-cash stock compensation charges related to research and
development and marketing, general and administrative expenses is primarily due
to the forfeiture and cancellation of certain options in the third and fourth
quarters of 2001 and a reduction in scheduled stock compensation amortization
related to the accelerated method of amortization utilized by us pursuant to FIN
No. 28, which results in higher amounts of amortization in the early vesting
periods, and lower amounts of amortization in subsequent vesting periods. The
CombiMatrix group's non-cash stock compensation amortization expense for the six
months ended June 30, 2002 are net of $748,000 in stock compensation expense
reversal related to the forfeiture of certain unvested stock options in the
first and second quarters of 2002.
INTEREST INCOME. During the three months ended June 30, 2002 and 2001,
interest income was $143,000 and $0.6 million, respectively. During the six
months ended June 30, 2002 and 2001, interest income was $0.4 million and $1.3
million, respectively. The decreases for both comparable periods were due
primarily to lower average cash and cash equivalents balances and short-term
investments in periods ended 2002 as compared to 2001, as well as lower market
interest rates earned on the CombiMatrix group's cash and investments.
INTEREST EXPENSE. During the three months ended June 30, 2002 and 2001,
interest expense was $54,000 and $0, respectively. During the six months ended
June 30, 2002 and 2001, interest expense was $115,000 and $0, respectively.
Interest expense relates to CombiMatrix Corporation's capital lease obligation
with a commercial bank, which was executed in September 2001.
MINORITY INTERESTS. During the three months ended June 30, 2002 and 2001,
minority interests in the net losses of the CombiMatrix group were $4.0 million
and $5.3 million, respectively. During the six months ended June 30, 2002 and
2001, minority interests were $6.4 million and $10.8 million, respectively. The
decrease in
-172-
minority interests was primarily due to the decrease in losses incurred by the
CombiMatrix group as a result of a decrease in non-cash stock compensation
amortization charges, and the decreases in research and development and
marketing, general and administrative expenses described above.
2001 COMPARED TO 2000
REVENUES. Revenues were $0.5 million in 2001 as compared to $0.02 million
in 2000. Revenues recognized in 2001 relate to the SBIR Phase II Department of
Defense grant, which is ongoing. The revenues recognized in 2000 relate to the
completion of CombiMatrix Corporation's Department of Energy grant.
RESEARCH AND DEVELOPMENT. Research and development expenses were $18.8
million in 2001 as compared to $11.8 million in 2000. The increase in research
and development expense was due primarily to an increase in non-cash stock
compensation charges, and a general expansion of research and development
efforts, which resulted in the growth of research and development personnel as
well as the amount of supplies and materials consumed. The CombiMatrix group's
research and development activities were focused primarily on efforts to further
develop and enhance the active biochip system towards commercialization. Most of
these efforts were driven by CombiMatrix Corporation's obligations under our
agreements with Roche, which were executed in July 2001. These projects include
development of production microarray synthesis techniques, as well as higher
density microarrays.
In 2001, research and development expense included non-cash stock
compensation charges, totaling $7.2 million. Non-cash stock compensation charges
for 2001 are net of $0.8 million of non-cash stock compensation expense reversal
related to the forfeiture of certain unvested stock options during the third and
fourth quarters of 2001. In 2000, research and development expense for non-cash
stock compensation was $3.4 million.
MARKETING, GENERAL AND ADMINISTRATIVE. Marketing, general and
administrative expenses were $29.5 million in 2001 as compared to $12.1 million
in 2000. These costs consist primarily of salaries and related expenses for
executive, financial and other administrative personnel, including non-cash
stock compensation charges, recruitment and relocation, professional services,
litigation costs, and marketing activities, facilities costs and other corporate
expenses. The increase was primarily due to an increase in non-cash stock
compensation charges, an increase in marketing, general and administrative
expenses, an increase in executive and administrative personnel, an increase in
personnel recruitment and relocation expenses, and an increase in rent and
utilities expenses as a result of CombiMatrix Corporation's January 2001
relocation to and occupancy of approximately 64,000 square feet of office space
in their new corporate and research facilities located in Mukilteo, Washington.
The CombiMatrix group's legal fees increased significantly in 2001 compared to
2000 as a result of litigation with Nanogen. In addition, marketing, general and
administrative expenses include the write-off of approximately $1.4 million of
deferred initial public offering costs, which were charged to income in the
fourth quarter of 2001 due to uncertainty related to the future recoverability
of these deferred costs, stemming from unfavorable market conditions in late
2001 and early 2002. The CombiMatrix group expects marketing, general and
administrative expenses to increase in the future to support the execution of
our business strategies.
Amortization of deferred stock compensation included in marketing, general
and administrative expenses was $12.8 million in 2001 as compared to $6.6
million in 2000. Stock compensation cost is deferred and amortized on an
accelerated basis over the vesting period of the individual option awards using
the amortization method prescribed in FIN No. 28. The increase in deferred stock
compensation amortization in 2001 was due to higher amounts of deferred stock
compensation charges scheduled to be amortized in 2001 as compared to 2000
related to $53.8 million of deferred stock compensation originally recorded in
the third and fourth quarters of 2000. Amortization of deferred stock
compensation in 2001 was partially offset by $3.9 million due to forfeitures of
unvested stock options occurring in 2001. The CombiMatrix group is scheduled to
incur deferred stock compensation amortization charges of approximately $8.1
million, $3.6 million and $1.1 million in 2002, 2003 and 2004, respectively.
Included in marketing, general and administrative expenses of the CombiMatrix
group are allocated corporate charges of $1.4 million and $0.9 million in 2001
and 2000, respectively.
INTEREST INCOME. Interest income was $2.1 million in 2001 as compared to
$1.7 million in 2000. The increase in interest income was due primarily to
higher average balances of cash and cash equivalents and short-term investments
in 2001 as compared to 2000. The overall increase in the average level of cash
and investment balances
-173-
in 2001 was primarily the result of a private equity financing executed in
August 2000 raising gross proceeds of $36.0 million through the sale of 4
million shares of CombiMatrix Corporation common stock at $9 per share.
INTEREST EXPENSE. Interest expense was $0.07 million in 2001 as compared to
no interest expense in 2000. Interest expense recorded in 2001 related to
CombiMatrix Corporation's capital lease obligation with a commercial bank, which
was entered into in September 2001. The CombiMatrix group had no similar
obligations in 2000.
MINORITY INTERESTS. Minority interests in the net losses of the CombiMatrix
group were $18.8 million in 2001 as compared to $8.3 million in 2000. The
increase in minority interests in 2001 was primarily due to the increase in
losses incurred by the CombiMatrix group as a result of increased non-cash stock
compensation amortization charges, its continued expansion of research and
development efforts and increased marketing, general and administrative
expenses.
CUMULATIVE EFFECT OF ACCOUNTING CHANGE. Cumulative effect of accounting
change was zero in 2001 as compared to $0.2 million in 2000. During the fourth
quarter of 2000, Acacia Research Corporation adopted Emerging Issues Task Force
No. 98-15, "Accounting for Convertible Securities with Beneficial Conversion
Features or Contingently Adjustable Conversion Ratios." As a result, the
beneficial conversion feature of $1.5 million 6% unsecured promissory notes that
was valued at $0.2 million was charged to the December 31, 2000 statement of
operations with a corresponding increase to equity in accordance with Accounting
Principles Bulletin Opinion No. 20, "Accounting Changes."
2000 COMPARED TO 1999
REVENUES. Revenues were $0.02 million in 2000 as compared to $0.1 million
in 1999. The decrease in revenues was due to the overall decrease in activity
under our Department of Defense and Department of Energy grants in 2000 as
compared to 1999.
RESEARCH AND DEVELOPMENT. Research and development expenses were $11.8
million in 2000 as compared to $1.8 million in 1999. The increase in research
and development expenses was due primarily to an increase in non-cash stock
compensation and a general expansion of the CombiMatrix group research and
development efforts, which resulted in the growth of research and development
personnel, as well as the amount of supplies and materials consumed. In 2000,
research and development expenses for non-cash stock compensation (including
warrants), totaled $3.4 million. In 1999, research and development expenses for
non-cash stock compensation were not material.
MARKETING, GENERAL AND ADMINISTRATIVE. Marketing, general and
administrative expenses were $12.1 million in 2000 as compared to $0.9 million
in 1999. The recruiting, hiring and in some cases relocating CombiMatrix
Corporation's executive and administrative staff significantly contributed to
the overall increase in our marketing, general and administrative expenses in
2000 compared to 1999. Marketing, general and administrative expenses included
$7.3 million and $0.2 million of non-cash stock compensation charges for 2000
and 1999, respectively. Included in marketing, general and administrative
expenses of the CombiMatrix group are allocated corporate charges of $0.9
million and $0.4 million, respectively.
AMORTIZATION OF DEFERRED STOCK COMPENSATION. Amortization of deferred stock
compensation was $10.2 million in 2000 as compared to $0.02 million in 1999. The
increase in deferred stock compensation amortization was due to greater amount
of deferred stock compensation amortized in 2000 compared to 1999 resulting from
the recognition of $53.8 million of deferred stock compensation in the third and
fourth quarters of 2000.
INTEREST INCOME. Interest income was $1.7 million in 2000 as compared to
$0.04 million in 1999. The increase in interest income was due to higher average
balances of cash and cash equivalents and short-term investments in 2000 as
compared to 1999 resulting from increased financing activities in 2000 compared
to 1999.
INTEREST EXPENSE. Interest expense was $0 in 2000 as compared to $0.3
million in 1999. The decrease in interest expense was due to a decrease in cash
interest expense from $117,000 in 1999 to $0 for the same period in 2000, a
decrease in amortization of discount on notes from $60,000 in 1999 to $0 in 2000
and a decrease in
-174-
amortization of debt issuance costs on CombiMatrix Corporations notes from
$36,000 in 1999 to $0 in 2000. All of these decreases were the result of the
exchange of the entire $1.5 million principal amount of notes for 725,000 shares
of common stock in December 1999.
MINORITY INTERESTS. Minority interests in the net losses of the CombiMatrix
group were $8.3 million in 2000 as compared to $1.2 million in 1999. The
increase in minority interests in 2001 was primarily due to the increase in
losses incurred by the CombiMatrix group as a result of increased non-cash stock
compensation amortization charges, its continued expansion of research and
development efforts and increased marketing, general and administrative
expenses.
CUMULATIVE EFFECT OF ACCOUNTING CHANGE. Cumulative effect of accounting
change was $0.2 million in 2000 as compared to zero in 1999. During the fourth
quarter of 2000, Acacia Research Corporation adopted Emerging Issues Task Force
No. 98-15, "Accounting for Convertible Securities with Beneficial Conversion
Features or Contingently Adjustable Conversion Ratios." As a result, the
beneficial conversion feature of $1.5 million 6% unsecured promissory notes that
was valued at $0.2 million was charged to the December 31, 2000 statement of
operations with a corresponding increase to equity in accordance with Accounting
Principles Bulletin Opinion No. 20, "Accounting Changes."
INFLATION
Inflation has not had a significant impact on the CombiMatrix group in the
current or prior periods.
LIQUIDITY AND CAPITAL RESOURCES
From inception through June 30, 2002, the CombiMatrix group has been funded
primarily with private equity financing totaling $64.2 million. At June 30,
2002, cash and cash equivalents and short-term investments totaled $22.8
million. At December 31, 2001, cash and cash equivalents and short-term
investments totaled $33.3 million, compared to $47.2 million at December 31,
2000. The CombiMatrix group's cash reserves and short-term investments are held
in a variety of investment-grade securities, including government and corporate
bonds, commercial paper and money market accounts.
Net cash used in operating activities was $10.4 million for the six months
ended June 30, 2002. Net cash used in operations was primarily due to a net loss
from operations of $9.9 million, and net cash out flows related to working
capital totaling $0.5 million.
Net cash used in operations during the years ended December 31, 2001, 2000
and 1999 was $17.1 million, $8.7 million and $2.7 million, respectively. The
CombiMatrix group division net losses for the years ended 2001, 2000 and 1999,
excluding minority interests were $46.8 million, $22.8 million and $2.9 million,
respectively. In 2001, the CombiMatrix group's negative cash flow from
operations stemmed primarily from the continued expansion of the group's
research and development activities including its efforts under the Roche and
NASA agreements executed in 2001. Cash outflows from operations were partially
offset by the receipt of milestone and advance payments under the Roche and NASA
agreements totaling $6.0 million, which have been recorded as deferred revenues
at December 31, 2001. Included in division net loss for 2001, 2000 and 1999 are
non-cash charges of $22.1 million, $10.9 million and $0.1 million, respectively,
related to amortization of deferred stock compensation, depreciation and
amortization expenses.
Net cash provided by investing activities was $4.4 million during the six
months ended June 30, 2002 primarily related to the sale of certain short-term
securities to fund operations.
Net cash provided by (used in) investing activities during the years ended
December 31, 2001, 2000 and 1999 was $18.8 million, $(42.6 million) and
$(88,000), respectively. Net cash inflows from investing activities includes the
net impact of the sale and leaseback transaction executed in September 2001 with
a commercial bank, resulting in gross proceeds of $3.0 million from the
financing of the majority of the CombiMatrix group's property and equipment. The
sale and leaseback transaction is reflected as a cash inflow and outflow from
investing activities in the 2001 CombiMatrix group cash flow statement. The sale
of short-term investments to fund the
-175-
CombiMatrix group research and development operations totaling $50.4 million
resulted in an overall net cash provided by investing activities in 2001 as
compared to net cash used in investing activities in 2000. The increase in cash
used in investing activities in 2000 as compared to 1999 was due primarily to
purchases of short-term investments and capital equipment.
Net cash attributed to the CombiMatrix group during the years ended
December 31, 2001, 2000 and 1999 was $4.5 million, $56.4 million and $1.1
million, respectively. 2001 cash in flows from financing activities attributed
to the CombiMatrix group include gross proceeds of $1.0 million from the
issuance of 120 shares of common stock by CombiMatrix KK to Marubeni Japan in
October 2001 representing a 10% ownership interest in CombiMatrix KK. In
addition, Advance Material Sciences also completed a private equity financing
raising $2.0 million in May 2001. During 2000, CombiMatrix group completed two
private equity financings raising gross proceeds of $53.6 million through the
sale of 7.5 million shares of CombiMatrix Corporation common stock. In addition,
Advanced Material Science was formed, raising initial equity financing of $3.0
million. Financing activities included the receipt of $3.8 million in net
proceeds from the sale of common stock to investors in 1999.
CombiMatrix Corporation's rental expenses, including its share of the
common area maintenance and operating expenses are approximately $175,000 per
month (excluding any allocated rent expense) at the new headquarters facility.
That amount increases over time, subject to acceleration based on actual usage
of the premises, to approximately $195,000 per month by mid 2002 through 2008.
CombiMatrix Corporation will pay $91,000 per month through September 2004 to
retire the capital lease obligation. Our future litigation costs with respect to
the Nanogen case are uncertain at this time, though they are expected to be
significant. CombiMatrix Corporation also has entered into a one-year commitment
to purchase $1.1 million worth of semiconductor wafers contingent upon
successfully developing a next-generation microarray.
The CombiMatrix group's long-term capital requirements and the adequacy of
our available funds will depend upon many factors, including:
o the CombiMatrix group's continued progress in research and development
programs;
o the costs involved in filing, prosecuting, enforcing and defending any
patents claims, should they arise;
o the CombiMatrix group's ability to license technology;
o competing technological developments;
o the creation and formation of strategic partnerships;
o the costs associated with leasing and improving our headquarters in
Mukilteo, Washington;
o the costs of commercialization activities; and
o other factors that may not be within the CombiMatrix group's control.
RECENT ACCOUNTING PRONOUNCEMENTS
Refer to Note 13 to the CombiMatrix group financial statements included
elsewhere herein.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The CombiMatrix group's exposure to market risk is limited to interest
income sensitivity, which is affected by changes in the general level of United
States interest rates, particularly because the majority of the group's
investments are in short-term debt securities issued by the U.S. treasury and by
U.S corporations. The primary objective of the group's investment activities is
to preserve principal while at the same time maximizing the income the
CombiMatrix group receives without significantly increasing risk. To minimize
risk, the CombiMatrix group maintains its portfolio of cash, cash equivalents
and short-term investments in a variety of investment-grade securities and with
a variety of issuers, including corporate notes, commercial paper, government
securities and money market funds. Due to the nature of its short-term
investments, the CombiMatrix group believes that it is not subject to any
material market risk exposure.
At June 30, 2002 and December 31, 2001, the CombiMatrix group had certain
assets and liabilities denominated in Japanese Yen as a result of forming
CombiMatrix KK during 2001. However, due to the relative insignificance of those
amounts, the CombiMatrix group does not believe that it has significant exposure
to foreign
-176-
currency exchange rate risks. The CombiMatrix group currently does not use
derivative financial instruments to mitigate this exposure. The CombiMatrix
group continues to review this and may begin hedging certain foreign exchange
risks through the use of currency forwards or options in 2002.
-177-
ACACIA TECHNOLOGIES GROUP MANAGEMENT'S DISCUSSION AND ANALYSIS
(A DIVISION OF ACACIA RESEARCH CORPORATION)
You should read this discussion in conjunction with the Acacia Technologies
group, a division of Acacia Research, financial statements and related notes and
the Acacia Research consolidated financial statements and related notes, both
included elsewhere herein. Historical results and percentage relationships are
not necessarily indicative of operating results for any future periods.
GENERAL
The Acacia Technologies group, a division of Acacia Research, is comprised
primarily of Acacia Research's wholly-owned media technology subsidiaries
Soundview Technologies Incorporated ("Soundview Technologies") and Acacia Media
Technologies Corporation, and also includes all other related corporate assets
and liabilities and related transactions of Acacia Research that are attributed
to its media technology businesses.
The AR-Acacia Technologies stock is intended to reflect the separate
performance of the respective division of Acacia Research, rather than the
performance of Acacia Research as a whole. The Acacia Technologies group is not
a separate legal entity. Holders of the AR-Acacia Technologies stock will be
stockholders of Acacia Research. As a result, they will continue to be subject
to all of the risks of an investment in Acacia Research and all of Acacia
Research's businesses, assets and liabilities. The assets Acacia Research
attributes to the Acacia Technologies group could be subject to the liabilities
of the CombiMatrix group.
The Acacia Technologies group businesses own intellectual property related
principally to the telecommunications industry, including a television blanking
system, also known as the "V-chip," which it licenses to television
manufacturers and a worldwide portfolio of pioneering patents relating to audio
and video transmission and receiving systems, commonly known as audio-on-demand
and video-on-demand, used for distributing content via various methods including
computer networks, cable television systems and direct broadcasting satellite
systems. The Acacia Technologies group is responsible for the development,
licensing and protection of its intellectual property and proprietary
technologies. The Acacia Technologies group continues to pursue both licensing
and strategic business alliances with leading companies in the rapidly growing
media technology industry.
During the six months ended June 30, 2002, the Acacia Technologies group's
operating activities were highlighted by the continuation of the building of its
executive management team including the hiring of key media technology and
intellectual property industry experts that will be responsible for the
development, licensing and protection of the Acacia Technologies group's
intellectual property and proprietary technologies, as well as the pursuit of
both licensing and strategic business alliances with leading companies in the
growing media technologies industry.
In 2001, Acacia Technologies group's financial condition and cash flows
were highlighted by the receipt of $25.6 million in payments from the licensing
of the Acacia Technologies group's television V-chip technology, the completion
of a private equity financing raising gross proceeds of $19.0 million and the
acquisition of the minority interests in Soundview Technologies in June 2001 and
Acacia Media Technologies Corporation in November 2001. In 2000, Acacia
Technologies group's financial condition and cash flows were highlighted
primarily by the completion of a private equity financing raising gross proceeds
of $23.7 million, the receipt of $14.8 million from the redemption of warrants
issued in connection with a December 1999 private equity financing and the
general expansion of operations, including an increase in business development
expenses as the Acacia Technologies group explored new business opportunities.
In 1999, Acacia Technologies group's financial condition and cash flows were
highlighted primarily by the completion of a private equity financing raising
gross proceeds of $21.0 million and the investment in Acacia Research's
subsidiary, Soundbreak.com. In the following discussion and analysis, the
period-to-period comparisons must be viewed in light of the impact that the
acquisition and disposition of securities of various business interests has had
on the Acacia Technologies group's financial condition and results of
operations.
During 2001, Acacia Technologies group began to receive significant
payments from the licensing of the Acacia Technologies group's television V-chip
technology to television manufacturers. However, to date, Acacia Research
businesses included in the Acacia Technologies group have relied primarily upon
selling equity securities, including sales to and loans from Acacia Research, to
generate the funds needed to finance the implementation of
-178-
their plans of operation. The Acacia Technologies group may be required to
obtain additional financing through bank borrowings, debt or equity financings
or otherwise, which would require Acacia Research to make additional investments
or face a dilution of its equity interests.
ACQUISITION AND OPERATING ACTIVITIES
During the six months ended June 30, 2002, the Acacia Technologies group's
operating activities primarily consisted of the hiring of key executive
personnel and the continuation of its efforts to market and commercialize its
intellectual property and related patents.
During 2001, the Acacia Technologies group continued to significantly
increase financing, acquisition and operating activities while receiving
significant payments from its media technologies licensing arrangements. The
Acacia Technologies group will continue to pursue both licensing and strategic
business alliances with leading companies in the rapidly growing media
technologies industry. Financing activities are listed in the Liquidity and
Capital Resources section that follows. Highlights of the acquisition and
operating activities for the year ended December 31, 2001 include:
In the first quarter of 2001, Soundview Technologies executed separate
settlement and/or license agreements with Samsung Electronics, Hitachi America,
Ltd., LG Electronics, Inc., Funai Electric Company, Ltd., Daewoo Electronics
Corporation of America and Sanyo Manufacturing Corporation. In addition,
Soundview Technologies settled its lawsuits with Pioneer Electronics (USA)
Incorporated. Certain of these license agreements constitute settlements of
patent infringement litigation brought by Soundview Technologies. The settlement
and license agreements provide for licensing payments to Soundview Technologies,
and grant non-exclusive licenses of Soundview Technologies' U.S. Patent No.
4,554,584 to the respective television manufacturers. Certain of these
settlement and license agreements provide for future royalty payments to
Soundview Technologies. The Acacia Technologies group received, and recognized
as revenue, $2.4 million in one-time license fee payments in exchange for the
grant of V-chip patent licenses during the first quarter of 2001. In addition,
the Acacia Technologies group received a payment of $1.0 million pursuant to a
settlement and license agreement executed in December 2000, which is included in
deferred revenues at December 31, 2001.
In February 2001, the board of directors of Soundbreak.com, a
majority-owned subsidiary of Acacia Research, resolved to cease operations as of
February 15, 2001 and liquidate its remaining assets and liabilities of the
company. Accordingly, the Acacia Technologies group reported the results of
operations and the estimated loss on disposal of Soundbreak.com as results of
discontinued operations in the statements of operations as of and for the year
ended December 31, 2000.
In June 2001, Acacia Research's ownership interest in Soundview
Technologies increased from 67% to 100%, following Soundview Technologies'
completion of a stock repurchase transaction with its former minority
stockholders. Soundview Technologies repurchased the stock of its former
minority stockholders in exchange for a cash payment and the grant to such
stockholders of the right to receive 26% of future net revenues generated by
Soundview Technologies' current patent portfolio, which includes its V-chip
patent.
During the second quarter of 2001, Soundview Technologies executed separate
settlement and license agreements with Thomson Multimedia, Inc. and JVC Americas
Corporation. Certain of these settlement and license agreements provide for
future royalty payments to Soundview Technologies. The Acacia Technologies group
received, and recognized as revenue, one-time license fee payments totaling
$10.0 million in exchange for the grant of V-chip patent licenses during the
second quarter of 2001.
In the third quarter of 2001, Soundview Technologies executed separate
settlement and/or license agreements with Matsushita Electric Industrial Co.,
Ltd. and Orion Electric Co., Ltd. The Acacia Technologies group received, and
recognized as revenue, one-time license fee payments totaling $10.7 million in
exchange for the grant of V-chip patent licenses during the third quarter of
2001. In addition, the Acacia Technologies group received a payment of $0.5
million pursuant to a license agreement executed in December 2000, which is
included in deferred revenues at December 31, 2001.
-179-
In November 2001, Acacia Research increased its ownership interest in
Acacia Media Technologies Corporation, formerly Greenwich Information
Technologies LLC, from 33% to 100% through the purchase of the ownership
interest of the former limited liability company's other member. In December
2001, Acacia Research converted the Greenwich Information Technologies LLC from
a limited liability company to a corporation and changed the name to Acacia
Media Technologies Corporation. Acacia Media Technologies owns a worldwide
portfolio of pioneering patents relating to audio and video transmission and
receiving systems, commonly known as audio-on-demand and video-on-demand, used
for distributing content via various methods including computer networks, cable
television systems and direct broadcasting satellite systems.
In the fourth quarter of 2001, the Acacia Technologies group received, and
recognized as revenue, one-time license fee payments totaling $1.0 million in
exchange for the grant of V-chip patent licenses.
EFFECT OF VARIOUS ACCOUNTING METHODS ON RESULTS OF OPERATIONS
CRITICAL ACCOUNTING POLICIES
The following critical accounting policies affect the Acacia Technologies
group's more significant judgments and estimates used in the preparation of its
financial statements:
o basis of presentation and principles of combination;
o policies relating to AR-Acacia Technologies stock and AR-CombiMatrix
stock;
o revenue recognition;
o litigation, claims and assessments;
o accounting for income taxes; and
o valuation of long-lived and intangible assets and goodwill.
BASIS OF PRESENTATION AND PRINCIPLES OF COMBINATION. The Acacia
Technologies group financial statements have been prepared in accordance with
generally accepted accounting principles and, taken together with the
CombiMatrix group financial statements, comprise all the accounts included in
the corresponding consolidated financial statements of Acacia Research. The
financial statements of each group reflect the financial condition, results of
operations and cash flows of the businesses included therein. The financial
statements of the Acacia Technologies group include the accounts or assets of
Acacia Research specifically attributed to the Acacia Technologies group and
give effect to the accounting policies that will be applicable upon
implementation of the recapitalization proposal. The Acacia Technologies group
financial statements have been prepared on a basis that management believes to
be reasonable and appropriate and reflect the financial position, results of
operations, and cash flows of businesses that comprise the Acacia Technologies
group and all other corporate assets, liabilities and related transactions of
Acacia Research attributed to the Acacia Technologies group, including allocated
portions of Acacia Research's general and administrative costs. Intergroup
transactions between the CombiMatrix group and the Acacia Technologies group
have not been eliminated in the separate group's financial statements.
The preparation of the divisional financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities,
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting periods. Actual results could differ from those estimates. If the
Recapitalization Proposal is implemented, significant management estimates and
judgments will be required related to the implementation of the management and
allocation policies applicable to the preparation of the divisional financial
statements of the Acacia Technologies group. Individual group results may be
significantly impacted based on management's estimates and judgments.
POLICIES RELATING TO AR-ACACIA TECHNOLOGIES STOCK AND AR-COMBIMATRIX STOCK.
The management and allocation policies applicable to the preparation of the
divisional financial statements of the CombiMatrix group and the Acacia
Technologies group (collectively, "the groups") may be modified or rescinded, or
additional policies may be adopted, at the sole discretion of the Board at any
time without approval of the stockholders. The Acacia Technologies group's
divisional financial statements reflect the application of the management and
allocation policies adopted by the Board to various corporate activities, as
described below. The Acacia Technologies group's
-180-
divisional financial statements should be read in conjunction with Acacia
Research's consolidated financial statements and related notes.
TREASURY AND CASH MANAGEMENT POLICIES
Acacia Research will manage most treasury and cash management activities on
a de-centralized basis, with each separate group separately managing its own
treasury activities. Pursuant to treasury and cash management policies adopted
by the Board, after the date on which the AR-CombiMatrix stock and the AR-Acacia
Technologies stock is first issued, the following will apply:
o Acacia Research will attribute each future issuance of AR-Acacia
Technologies stock (and the proceeds thereof) to the Acacia
Technologies group and will attribute each future issuance of
AR-CombiMatrix stock (and the proceeds thereof) to the CombiMatrix
group;
o Acacia Research will attribute each future incurrence or issuance of
external debt or preferred stock (and the proceeds thereof) between
the two groups or entirely to one group as determined by the Board,
based on the extent to which Acacia Research incurs or issues the debt
or preferred stock for the benefit of the CombiMatrix group and the
Acacia Technologies group;
o Dividends on AR-Acacia Technologies stock will be charged against the
Acacia Technologies group, and dividends on AR-CombiMatrix stock will
be charged against the CombiMatrix group;
o Repurchases of AR-Acacia Technologies stock will be charged against
the Acacia Technologies group and Repurchases of AR-CombiMatrix stock
will be charged against the CombiMatrix group;
o As of immediately prior to the first issuance of AR-CombiMatrix stock
and AR-Acacia Technologies stock, the CombiMatrix group and the Acacia
Technologies group shall be deemed to be allocated the cash and cash
equivalents held by the respective groups as of that date;
o Acacia Research will account for any cash transfers from Acacia
Research to or for the account of a group, from a group to or for the
account of Acacia Research, or from one group to or for the account of
the other group (other than transfers in return for assets or services
rendered) as short-term loans unless (A) the Board determines that a
given transfer (or type of transfer) should be accounted for as a
long-term loan, (B) the Board determines that a given transfer (or
type of transfer) should be accounted for as a capital contribution or
(iii) the Board determines that a given transfer (or type of transfer)
should be accounted for as a return of capital. There are no specific
criteria to determine when Acacia Research will account for a cash
transfer as a long-term loan, a capital contribution or a return of
capital rather than an inter-group revolving credit advance; provided,
however, that cash advances from Acacia Research to the Acacia
Technologies group or to the CombiMatrix group up to $25 million on a
cumulative basis shall be accounted for as short-term or long-term
loans at interest rates at which Acacia Research could borrow such
funds and shall not be accounted for as a capital contribution. The
Board will make such a determination in the exercise of its business
judgment at the time of such transfer based upon all relevant
circumstances. Factors the Board may consider include, without
limitation, the current and projected financing needs and objectives
of the recipient group; the availability, cost and time associated
with alternative financing sources; and prevailing interest rates and
general economic conditions; and
o Any cash transfers accounted for as short-term loans will bear
interest at the rate at which Acacia Research could borrow such funds.
In addition, any cash transfers accounted for as a long-term loan will
have interest rates, amortization, maturity, redemption and other
terms that reflect the then-prevailing terms on which Acacia Research
could borrow such funds.
-181-
CORPORATE GENERAL AND ADMINISTRATIVE SERVICES AND FACILITIES
Acacia Research will allocate the cost of corporate general and
administrative services and facilities between the Acacia Technologies group and
the CombiMatrix group, generally based upon utilization. Where determinations
based on utilization alone are impracticable, Acacia Research will use other
methods and criteria that management believes to be equitable and to provide a
reasonable estimate of the cost attributable to each group. Except as otherwise
determined by management, the allocated costs of providing such services and
facilities will include, without limitation, all costs and expenses of personnel
employed in connection with such services and facilities, including, without
limitation, all direct costs of such personnel, such as payroll, payroll taxes
and fringe benefit costs (calculated at the appropriate annual composite rate
therefor) and all overhead costs and expenses directly related to such personnel
and the services or facilities provided by them. In addition, allocated costs
will include all materials used in connection with such services or facilities,
billed at their net cost to the provider of the services or facilities plus all
overhead costs and expenses related to such materials.
Except as may otherwise be specifically provided pursuant to the terms of
any agreements among Acacia Research and the groups or any resolutions of the
Board, the corporate general and administrative services and facilities to be
allocated between the Acacia Technologies group and the CombiMatrix group, will
include, without limitation, legal services, accounting services (tax and
financial), insurance and deductibles payable in connection therewith, employee
benefit plans and administration thereof, investor relations, stockholder
services, and services relating to the board of directors.
ALLOCATION OF FEDERAL AND STATE INCOME TAXES
Acacia Research will determine its federal income taxes and the federal
income taxes of its subsidiaries that own assets allocated between the Acacia
Research on a consolidated basis. Acacia Research will allocate consolidated
federal income tax provisions and related tax payments or refunds between the
Acacia Research based principally on the taxable income and tax credits directly
attributable to each group. Such allocations will reflect each group's
contribution, whether positive or negative, to Acacia Research's consolidated
federal taxable income and consolidated federal tax liability and tax credit
position. Acacia Research will credit tax benefits that cannot be used by the
group generating those benefits but can be used on a consolidated basis to the
group that generated such benefits. Inter-group transactions will be treated as
taxed on a separate return basis.
Depending on the tax laws of the respective jurisdictions, state and local
income taxes are calculated on either a consolidated or combined basis between
the groups based on their respective contribution to such consolidated or
combined state taxable incomes. State and local income tax provisions and
related tax payments or refunds which are determined on a separate corporation
basis will be allocated between the groups in a manner designed to reflect the
respective contributions of the groups to Acacia Research's separate or local
taxable income.
REVENUE RECOGNITION. To date, the Acacia Technologies group's revenues have
consisted primarily of fees from the licensing of its television V-chip
technology to television manufacturers.
As described below, significant management judgments must be made and used
in connection with the revenue recognized in any accounting period. Material
differences may result in the amount and timing of revenue recognized for any
period if management made different judgments.
Television V-chip License Fees: The Acacia Technologies group's television
V-chip technology settlement and/or license agreements provide for the payment
of contractually determined license fees to us in consideration for the grant to
certain television manufacturers of a non-exclusive, retroactive and future
licenses to manufacture and/or sell products covered by Soundview Technologies'
U.S. Patent No. 4,554,584, through July 2003. While payments recognized to date
have been one-time payments for the grant of V-chip patent licenses, certain of
the agreements also provide for future royalties or additional required payments
based on future television sales or the outcome of future litigation and
settlement activities. The agreements executed with the various television
manufacturers include certain release provisions with respect to Soundview
Technologies' ongoing patent infringement and anti-trust enforcement efforts.
Amounts received under the settlement and license agreements are recorded as
license fee income in the Acacia Technologies group's statement of operations.
-182-
License fee income is recognized as revenue when (i) persuasive evidence of
an arrangement exists, (ii) all obligations have been performed pursuant to the
terms of the license agreement, (iii) amounts are fixed or determinable and (iv)
collectibility of amounts is reasonably assured. Pursuant to the terms of the
agreements, the Acacia Technologies group has no further obligation with respect
to the sale of the non-exclusive retroactive and future license, including no
express or implied obligation on the Acacia Technologies group's part to
maintain or upgrade the technology or license, or provide future support or
services. Generally, the agreements provide for the grant of the license upon
receipt by Soundview Technologies of payment of the contractual license fee. As
such, the earnings process is generally complete upon the receipt of payment
from the television manufacturer, and revenue is recognized when all of the
criteria above are met.
License fee payments received by the Acacia Technologies group that do not
meet the revenue recognition criteria above are recorded as deferred revenues,
along with any related direct costs, until the criteria are met. In the event
that license fee amounts due from television manufacturers have been accrued,
the Acacia Technologies group assesses collection based on a number of factors,
including past transaction history and credit-worthiness. If it is determined
that collection of an accrued license fee is not reasonably assured, the fee is
deferred and is recognized as revenue upon receipt of cash.
LITIGATION, CLAIMS AND ASSESSMENTS. The preparation of financial statements
in conformity with generally accepted accounting principles in the United States
of America requires management to make estimates and assumptions that affect the
reported amount of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements and the reported amounts
of revenues and expenses during the reporting period. Specifically, management
must make estimates of whether (i) it is probable that an asset has been
impaired or a liability has been incurred at the date of the financial
statements and (ii) whether the amount of loss can be reasonably estimated. In
the event that, in management's estimation it is probable that an asset has been
impaired or a liability has been incurred at the date of the financial
statements and amounts of loss can be reasonably estimated, the estimated
contingent loss is accrued by a charge to income.
Because of the uncertainties related to both probabilities of outcome and
amounts and ranges of potential loss associated with outstanding claims and
pending litigation at December 31, 2001, management is unable to make a
reasonable estimate of the likelihood of outcome or the liability that could
result from an unfavorable outcome. As such, the Acacia Technologies group has
not accrued for any loss contingencies as of December 31, 2001. As additional
information becomes available, the potential liability related to pending
litigation, claims or assessments will be assessed and the previous estimates
may be revised. Such revisions in the estimates of the potential liability could
materially impact the Acacia Technologies group's results of operation and
financial position.
ACCOUNTING FOR INCOME TAXES. As part of the process of preparing the Acacia
Technologies group's financial statements, management is required to estimate
Acacia Research's income taxes in each of the jurisdictions in which Acacia
Research operates. This process involves the estimating of actual current tax
exposure together with assessing temporary differences resulting from differing
treatment of items, such as deferred revenue, amortization of intangibles and
asset depreciation for tax and accounting purposes. These differences result in
deferred tax assets and liabilities, which are included within the Acacia
Technologies group's balance sheet. Acacia Research must then assess the
likelihood that deferred tax assets will be recovered from future taxable income
and to the extent that management believes that recovery is not likely, a
valuation allowance must be established. To the extent a valuation allowance is
established or increased in a period, an expense must be reflected within the
tax provision in the group statement of operations.
Significant management judgment is required in determining the Acacia
Technologies group's provision for income taxes, the deferred tax assets and
liabilities and the valuation allowance. A full valuation allowance has been
recorded against net deferred tax assets of $29.5 million as of December 31,
2001, due to uncertainties related to the ability to utilize the deferred tax
assets, primarily consisting of certain net operating losses carried forward,
before they expire. In assessing the need for a valuation allowance,
consideration has been given estimates of future taxable income, the period over
which deferred tax assets may be recoverable, history of losses and the
assessment of the probability of continuing losses in the foreseeable future. In
management's estimate, any positive indicators, including forecasts of potential
future profitability of businesses, are outweighed by the uncertainties
surrounding the estimates and judgments of potential future taxable income. In
the event that actual results differ from these estimates or Acacia Research
adjusts these estimates should it believe it would be able to realize these
deferred tax
-183-
assets in the future, an adjustment to the valuation allowance would increase
income in the period such determination was made. Any changes in the valuation
allowance could materially impact the financial position and results of
operations.
If the recapitalization proposal is approved, Acacia Research will
determine its federal income taxes and the federal income taxes of its
subsidiaries that own assets allocated between the Acacia Research on a
consolidated basis. Consolidated federal income tax provisions and related tax
payments or refunds will be allocated between the Acacia Research based
principally on the taxable income and tax credits directly attributable to each
group. Such allocations will reflect each group's contribution, whether positive
or negative, to Acacia Research's consolidated federal taxable income and
consolidated federal tax liability and tax credit position. Acacia Research will
credit tax benefits that cannot be used by the group generating those benefits
but can be used on a consolidated basis to the group that generated such
benefits.
VALUATION OF LONG-LIVED AND INTANGIBLE ASSETS AND GOODWILL. The Acacia
Technologies group assesses the impairment of identifiable intangibles,
long-lived assets and related goodwill whenever events or changes in
circumstances indicate that the carrying value may not be recoverable. Factors
the Acacia Technologies group considers important, which could trigger an
impairment review include the following:
o significant underperformance relative to expected historical or
projected future operating results;
o significant changes in the manner of use of the acquired assets or the
strategy for overall business;
o significant negative industry or economic trends; and
o significant decline in the Acacia Technologies group's stock price for
a sustained period.
When the carrying value of intangibles, long-lived assets and related
goodwill is determined to be unrecoverable based upon the existence of one or
more of the above indicators of impairment, the impairment is measured based on
a projected discounted cash flow method using a discount rate determined by
management to be commensurate with the risk inherent in the Acacia Technologies
group's current business model. Net intangible assets, long-lived assets and
goodwill amounted to $7.7 million as of December 31, 2001.
In 2002, SFAS No. 142, "Goodwill and Other Intangible Assets" ("SFAS No.
142"), became effective and as a result, goodwill totaling approximately $1.8
million will cease to be amortized effective January 1, 2002. The Acacia
Technologies group recorded approximately $0.2 million of amortization of
goodwill during 2001. In lieu of amortization, an initial impairment review of
goodwill will be performed in 2002 and an annual impairment review thereafter.
In connection with the adoption of SFAS No. 142, the Acacia Technologies group
performed a transitional goodwill impairment assessment and determined that
there was no impairment of goodwill. However there can be no assurance that a
material impairment charge will not be recorded in future periods.
In August 2001, the FASB issued SFAS No. 144, "Accounting for the
Impairment or Disposal of Long-Lived Assets" ("SFAS No. 144"), which addresses
financial accounting and reporting for the impairment of long-lived assets and
for long-lived assets to be disposed of. SFAS No. 144, which was adopted
effective January 1, 2002 requires long-lived assets to be tested for
recoverability whenever events or changes in circumstances indicate that its
carrying amount may not be recoverable. In conjunction with such tests, it may
be necessary to review depreciation estimates and methods as required by APB
Opinion No. 20, "Accounting Changes," or the amortization period as required by
SFAS No. 142. The adoption of SFAS No. 144 did not have a material impact on the
Acacia Technologies group financial position or results of operations.
-184-
ACACIA TECHNOLOGIES GROUP
FOR THE THREE FOR THE SIX
MONTHS ENDED MONTHS ENDED
FOR THE YEARS ENDED DECEMBER 31, JUNE 30, JUNE 30,
-------------------------------- ------------------ ------------------
RESULTS OF OPERATIONS (IN THOUSANDS) 2001 2000 1999 2002 2001 2002 2001
-------- -------- ------- ------- ------- ------- -------
(UNAUDITED) (UNAUDITED)
Net revenues ........................................ $ 24,180 $ 40 $ 122 $ -- 10,000 $ -- 12,440
Research and development expenses ................... -- (52) -- -- -- -- --
Marketing, general and administrative expenses ...... (5,258) (8,983) (3,198) (2,061) (1,073) (3,356) (3,387)
Legal expenses ...................................... (11,572) (984) (287) (536) (4,740) (1,039) (5,771)
Amortization of patents and goodwill ................ (1,492) (1,611) (1,592) (465) (337) (930) (672)
Loss on disposal of subsidiaries .................... -- (1,016) -- -- -- -- --
Other (expense) income, net ......................... 2,111 (2,897) (818) (905) 473 (1,547) 884
Benefit (provision) for income taxes ................ (935) (6) (18) 36 (267) 65 (316)
Minority interests .................................. (1,277) 866 (27) 125 (959) 162 (1,286)
Loss from discontinued operations of Soundbreak.
com .............................................. -- (9,554) (776) -- -- -- --
-------- -------- ------- ------- ------- ------- -------
Division net income (loss) .......................... $ 5,757 $(24,197) $(6,594) $(3,806) $ 3,097 $(6,645) $ 1,892
======== ======== ======= ======= ======= ======= =======
THREE AND SIX MONTHS ENDED JUNE 30, 2002 TO THE THREE AND SIX MONTHS ENDED JUNE
30, 2001
LICENSE FEE INCOME. During the three months ended June 30, 2002, license
fee income was $0 as compared to $10.0 million in license fee income during the
three months ended June 30, 2001. During the six months ended June 30, 2002,
license fee income was $0 as compared to $12.4 million in license fee income
during the six months ended June 30, 2001. The license fee income for the three
and six months ended June 30, 2001 includes license fees received from
television manufacturers with whom Soundview Technologies executed separate
settlement and/or license agreements during the respective periods. Pursuant to
the terms of the respective settlement and/or license agreements with each of
the television manufacturers, Soundview Technologies received one-time license
fee payments in exchange for the grant of non-exclusive licenses for its
patented V-chip technology to each of the respective manufacturers. Soundview
Technologies did not record any license fee income during the first and second
quarters of 2002. The Acacia Media Technologies Group continues to pursue both
licensing and strategic business alliances with other television manufacturers
and leading companies in the media technologies industry.
Acacia Media Technologies Group's patent on the V-chip technology expires
in July 2003. The Acacia Media Technologies Group may continue to collect
license fees on televisions sold in the United States during the patent term,
subsequent to the July 2003 patent expiration date. The Acacia Media
Technologies Group is beginning to market its digital media transmission
technology and is looking to acquire other technologies. The eventual licensing
and sale of these technologies is intended to replace the revenue generated by
licensing the V-chip technology. If we do not succeed in acquiring such
technologies or are unable to commercially license our existing and future
technologies, our financial condition may be adversely impacted.
MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES. Marketing, general and
administrative expenses were $2.1 million during the three months ended June 30,
2002, as compared to $1.1 million in the same period in 2001. Marketing, general
and administrative expenses were $3.4 million during the three and six months
ended June 30, 2002 and 2001. The increase during the three months ended June
30, 2002 as compared to the same period in 2001 is primarily due to increased
costs incurred related to Acacia Media Technologies Corporation's ongoing patent
marketing and commercialization efforts, including increased personnel costs
relating to the hiring of several key executives and costs related to outside
intellectual property consulting services.
Included in marketing, general and administrative expenses are allocated
corporate charges of $1.3 million and $0.8 million for the three months ended
June 30, 2002 and 2001, respectively. Included in marketing, general and
administrative expenses are allocated corporate charges of $2.4 million and $2.6
million for the six months ended June 30, 2002 and 2001, respectively.
-185-
LEGAL FEES. Legal fees were $0.5 million during the three months ended June
30, 2002 as compared to $4.7 million during the same period in 2001. Legal fees
were $1.0 million during the six months ended June 30, 2002 as compared to $5.8
million during the same period in 2001. The decrease in legal fees expense is
primarily due to a decrease in legal expenses related to Soundview Technologies'
patent licensing and related infringement settlements. Legal fees related to the
license fee agreements executed with television manufacturers are generally
incurred on a contingency basis, based on license fee payments received. The
decrease in legal fees was partially offset by fees incurred in connection with
on going legal work associated with the Acacia Technologies group's V-Chip and
digital media patent portfolio.
AMORTIZATION OF PATENTS AND GOODWILL. Amortization of patents and goodwill
during the three months ended June 30, 2002 was $0.5 million as compared to $0.3
million in the same period in 2001. Amortization of patents and goodwill during
the six months ended June 30, 2002 was $0.9 million as compared to $0.7 million
in the same period in 2001. Amortization expense relating to patents and
goodwill for the three and six months ended June 30, 2002 excludes $45,000 and
$89,000 of amortization expense pursuant to SFAS No. 142, "Goodwill and Other
Intangible Assets" ("SFAS No. 142"), which was adopted by the Acacia
Technologies group effective January 1, 2002 and requires goodwill to be tested
for impairment under certain circumstances, and written off when determined to
be impaired, rather than being amortized as previous standards required. The
reduction in goodwill amortization in the three and six months ended June 30,
2002 was partially offset by an increase in patent amortization related to the
increase in Acacia Research Corporation's ownership interest in Acacia Media
Technologies Corporation (formerly, "Greenwich Information Technologies," a
limited liability company) from 33% to 100% in November 2001. As a result of the
acquisition of Acacia Media Technologies Corporation, the Acacia Technologies
group will be recording additional patent amortization of $0.2 million on a
quarterly basis over the related patents economic useful lives (approximately 10
years) related to the intangibles identified in connection with the application
of the purchase method of accounting.
OTHER INCOME (EXPENSE), NET. During the three months ended June 30, 2002,
other income (expense), net (primarily comprised of interest income, realized
and unrealized gains and losses on trading securities, equity in losses of
affiliate and other) was $0.9 million in net other expenses as compared to $0.5
million in net other income in 2001. During the six months ended June 30, 2002,
other income (expense), net (primarily comprised of interest income, realized
and unrealized gains and losses on trading securities, equity in losses of
affiliate and other) was $1.5 million in net other expense as compared to $0.9
million in net other income in 2001.
INTEREST INCOME. During the three months ended June 30, 2002, interest
income was $0.1 million as compared to $0.5 million in the same period in 2001.
During the six months ended June 30, 2002, interest income was $0.3 million as
compared to $0.9 million in the same period in 2001. The decrease in interest
income during 2002 was primarily due to the impact of a decrease in interest
rates on the Acacia Technologies group's short-term investments related to sharp
interest rate cuts by the Federal Open Market Committee and other external
economic factors negatively impacting rates of return on short-term investments
occurring during the third and fourth quarters of 2001.
REALIZED AND UNREALIZED LOSSES ON SHORT-TERM INVESTMENTS. During the three
months ended June 30, 2002, net realized losses on short-term investments was
$0.9 million as compared to no realized losses on short-term investments in the
same period in 2001. During the six months ended June 30, 2002, net realized
losses on short-term investments was $1.5 million as compared to no realized
losses on short-term investments in the same period in 2001. During the three
months ended June 30, 2002, net unrealized losses were $0.2 million as compared
to no unrealized losses in the same period in 2001. During the six months ended
June 30, 2002, net unrealized losses were $0.5 million as compared to no
unrealized losses in the same period in 2001. The increase in realized and
unrealized losses on short-term investments during 2002 was due to realized and
unrealized losses recorded on certain trading securities of the Acacia
Technologies group during the three and six months ended June 30, 2002. The
Acacia Technologies group did not hold any trading securities during the three
and six months ended June 30, 2001.
The Acacia Technologies group conducted a portion of its investing activity
through a limited partnership, of which a wholly-owned subsidiary of Acacia
Research Corporation is the general partner. As a result of the significant
control that Acacia Research Corporation exercises over the limited partnership,
the assets and liabilities and results of operations have been consolidated by
Acacia Research Corporation at June 30, 2002 and December 31, 2001. The assets,
liabilities and results of operations of the limited partnership, which includes
-186-
certain health sciences securities, have been attributed to the Acacia
Technologies group. The limited partnership ceased operations as of the end of
the second quarter of 2002.
EQUITY IN LOSSES OF AFFILIATE. During the three months ended June 30, 2002,
equity in losses of affiliate was $0 as compared to $55,000 in the same period
in 2001. During the six months ended June 30, 2002, equity in losses of
affiliate was $0 as compared to $110,000 in the same period in 2001. Equity in
losses of affiliate during the three and six months ended June 30, 2001 was
comprised of a loss of $55,000 and $110,000, respectively, for Acacia Research
Corporation's non-controlling equity investment in Acacia Media Technologies. As
of December 31, 2001, Acacia Research Corporation no longer accounts for any of
its investments under the equity method as it directly or indirectly owns more
that 50% of the outstanding voting securities of all of its subsidiaries and as
a result, consolidates these investments.
MINORITY INTERESTS. Minority interests in the (income) losses of
consolidated subsidiaries were ($125,000) during the three months ended June 30,
2002 as compared to $1.0 million during the same period in 2001. Minority
interests in the (income) losses of consolidated subsidiaries were ($162,000)
during the six months ended June 30, 2002 as compared to $1.3 million during the
same period in 2001. Minority interests in the losses of consolidated
subsidiaries for the three and six months ended June 30, 2002 were primarily
comprised of minority interests in the net losses of the Acacia Technologies
group's investment limited partnership. Minority interests in the net income of
consolidated subsidiaries for the three and six months ended June 30, 2001 were
comprised primarily of $1.0 million and $1.3 million, respectively, of minority
interests in the net income of Soundview Technologies recorded prior to the
increase in Acacia Research's ownership interest in Soundview Technologies to
100% in June 2001.
2001 COMPARED TO 2000
LICENSE FEE INCOME. In 2001, license fee income was $24.2 million as
compared to no license fee income during 2000. The increase for 2001 resulted
primarily from the settlement of patent infringement litigation brought by
Soundview Technologies and includes one-time license fees in exchange for the
grant of V-chip patent licenses, received from eleven of the twelve television
manufacturers with whom Soundview Technologies executed separate settlement
and/or license agreements during 2001 and 2000. Pursuant to the terms of the
respective settlement and license agreements with each of the television
manufacturers, Soundview Technologies granted to such manufacturers,
non-exclusive licenses for its U.S. Patent No. 4,554,584.
The Acacia Technologies group, and Acacia Research as a whole, has
generated substantially all of its revenues from licensing the patented V-chip
technology to television manufacturers. Acacia Technologies group's patent on
the V-chip technology will expire in July 2003, although the Acacia Technologies
group may still collect revenues from the sale of televisions in the U.S. before
that date. The Acacia Technologies group is beginning to market its digital
media transmission technology and is developing other technologies and products.
The eventual licensing and sale of these technologies is intended to replace the
revenue currently being generated by licensing its V-chip technology. If the
Acacia Technologies group does not succeed in developing such technologies or is
unable to commercially license its existing and future technologies, its
financial condition will be adversely impacted.
MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES. The Acacia Technologies
group incurred marketing, general and administrative expenses of $5.3 million in
2001 as compared to $9.0 million in 2000. These costs consist primarily of
salaries and related expenses for executive, financial and other administrative
personnel, travel and meals, recruitment and relocation, professional services,
investor relations, insurance, facilities costs and other corporate expenses.
Management expects marketing, general and administrative expenses to increase in
the future to support the execution of the Acacia Technologies group's business
strategies.
Marketing, general and administrative expenses included $0.9 million and
$0.7 million of non-cash stock compensation charges for 2001 and 2000,
respectively. Included in the marketing, general and administrative expenses of
the Acacia Technologies group are allocated corporate charges of $4.6 million
and $7.7 million in 2001 and 2000, respectively.
LEGAL EXPENSES. In 2001, legal expense was $11.6 million as compared to
$1.0 million in 2000. The increase in 2001 was due to approximately $11.0
million of legal costs incurred in connection with the execution of Soundview
Technologies' V-chip license and settlement agreements with twelve television
manufacturers during
-187-
2001. Legal fees incurred in connection with the Acacia Technologies group's
V-Chip licensing arrangements are generally incurred on a contingency basis and
include legal costs incurred in connection with the negotiation of license
agreements, drafting of legal documents, discovery and certain other legal
expenses.
AMORTIZATION OF PATENTS AND GOODWILL. In 2001, amortization expense
relating to patents and goodwill was $1.5 million as compared to $1.6 million in
2000. As a result of the purchase of additional equity securities in various
subsidiaries, the Acacia Technologies group is incurring amortization expense
for periods ranging from three to five years relating to the intangible assets
acquired.
As a result of the increase in Acacia Research's ownership interest in
Acacia Media Technologies from 33% to 100% through the purchase of the ownership
interest of Acacia Media Technologies' other member in November 2001, the Acacia
Technologies group will incur additional amortization expense of approximately
$0.5 million per year in future periods relating to the intangible assets
acquired. See "Recent Accounting Pronouncements" for summary of pronouncements
affecting amortization of goodwill in future periods and impairment analysis
required for long-lived assets.
LOSS ON DISPOSAL OF CONSOLIDATED SUBSIDIARIES. In 2001, loss on disposal of
consolidated subsidiaries was $0 as compared to $1.0 million in 2000. In the
fourth quarter of 2000, the Acacia Technologies group recorded $1.0 million in
write-offs of early stage investments.
OTHER INCOME (EXPENSE), NET. In 2001, other income, net was $2.1 million
(primarily comprised of interest income, realized and unrealized gains and
losses on trading securities, equity in losses of affiliates and other), as
compared to $2.9 million of net other expense in 2000, as a result of equity
investment write-offs and losses attributable to equity investees.
INTEREST INCOME. In 2001, interest income was $1.6 million as compared
to $1.4 million in 2000. The increase during 2001 was due to higher cash
balances during 2001 as compared to 2000, resulting from various private equity
financings and the receipt of significant license fee payments by Soundview
Technologies during the year. The increase was partially offset by the impact of
a decrease in interest rates on short-term investments related to sharp interest
rate cuts by the Federal Open Market Committee and other external economic
factors negatively impacting rates of return on short-term investments occurring
during the third and fourth quarters of 2001.
REALIZED GAINS ON SHORT-TERM INVESTMENTS. In 2001, net realized gains
on short-term investments were $0.4 million as compared to no realized gains on
short-term investments in 2000. The increase during 2001 was due to realized
gains recorded on short-term investments classified as trading securities during
2001. In 2000, the Acacia Technologies group did not classify any investments as
trading securities.
UNREALIZED GAINS ON SHORT-TERM INVESTMENTS. In 2001, net unrealized
gains were $0.2 million as compared to no unrealized gains in 2000. The increase
is due to the investment in equity securities during 2001 classified as trading
securities under SFAS No. 115, "Accounting for Certain Investments in Debt and
Equity Securities" ("SFAS No. 115"). Pursuant to SFAS No. 115, unrealized gains
and losses on trading securities are recorded in the statement of operations. In
2000, all of the Acacia Technologies group's short-term investments were
classified as available-for-sale, and pursuant to SFAS No. 115, unrealized gains
and losses were recorded as a separate component of comprehensive income (loss)
in Acacia Technologies group equity until realized.
EQUITY IN LOSSES OF AFFILIATES. In 2001, equity in losses of
affiliates was $0.2 million as compared to $1.7 million in 2000. Losses during
2001 were comprised of a loss of $0.2 million for Acacia Research's investment
in Acacia Media Technologies, as determined by the equity method of accounting
through November 1, 2001. Acacia Research increased its ownership percentage in
Acacia Media Technologies to 100% on November 1, 2001. Losses during 2000 were
comprised of a loss of $0.3 million, $0.2 million, $0.1 million and $1.1 million
for Acacia Research's investments in Signature-mail.com, Acacia Media
Technologies, Whitewing Labs and Mediaconnex, respectively, as determined by the
equity method of accounting. Acacia Research wrote-off its equity investments in
Signature-mail.com, Whitewing Labs and Mediaconnex, as of December 31, 2000.
-188-
PROVISION FOR INCOME TAXES. In 2001, the provision for income taxes was
$0.9 million as compared to a provision of $6,000 in 2000. The increase in 2001
was primarily due to a significant increase in taxable income generated by
Soundview Technologies related to its patent infringement settlement and patent
licensing activities as compared to the 2000 period.
DISCONTINUED OPERATIONS. On February 13, 2001, the board of directors of
Soundbreak.com resolved to cease operations as of February 15, 2001 and
liquidate the remaining assets and liabilities of the company. Accordingly, the
Acacia Technologies group reported the results of operations and the estimated
loss on disposal of Soundbreak.com as results of discontinued operations in its
statement of operations. Discontinued operations of Soundbreak.com included $7.4
million of loss from discontinued operations in 2000 and $2.1 million of accrued
expenses in connection with its cessation of operations.
2000 COMPARED TO 1999
OTHER INCOME. Other income was $0.04 million in 2000 as compared to $0.1
million in 1999. Other income in 2000 represents advertising income recorded by
or subsidiary. Other income in 1999 relates to capital management fees earned by
Acacia Research Capital Management division, which was the general partner in
two domestic private investment partnerships and an investment advisor to two
offshore private investment corporations. The Acacia Research Capital Management
division was closed in December 1999.
MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES. The Acacia Technologies
group incurred marketing, general and administrative expenses of $9.0 million in
2000, as compared to expenses of $3.2 million in 1999. The increase in 2000 was
primarily due to the general expansion of Acacia Technologies group operations,
including an increase in business development expenses as the Acacia
Technologies group explored new business opportunities, including an increase in
personnel and benefits costs, the extensive use of consultants to assist in
solving specialized issues or providing specific services, and an increase in
general office costs. Included in the marketing, general and administrative
expenses of the Acacia Technologies group are allocated corporate charges of
$7.7 million and $3.1 million in 2000 and 1999, respectively.
LEGAL EXPENSES. In 2000, legal expense was $1.0 million as compared to $0.3
million in 1999. The increase was primarily due to a general increase in the
amount of third party legal services required by the Acacia Technologies group
in 2000 related to various business transactions and other general legal and
professional services costs.
AMORTIZATION OF PATENTS AND GOODWILL. Amortization expense relating to
patents and goodwill was $1.6 million in 2000 and 1999, and relates to Acacia
Research's purchase of additional equity interests in Soundview Technologies in
July 1997 and January 1998, and in MerkWerks in January 1998 and June 1999.
LOSS ON DISPOSAL OF SUBSIDIARIES. In 2000, loss on disposal of subsidiaries
was $1.0 million as compared to zero in 1999. In the fourth quarter of 2000, the
Acacia Technologies group recorded $1.0 million in write-offs of early stage
investments.
OTHER EXPENSE, NET. In 2000, other expense, net (primarily comprised of
interest income, write-off of equity investments, equity in losses of affiliates
and other) of $2.9 million as compared to other expense, net of $0.8 million in
1999. The increase in 2000 was primarily due to $2.6 million of write-offs of
equity investments in Signature-mail.com, Whitewing Labs and Mediaconnex, and an
increase in equity in losses of affiliates, partially offset by an increase in
interest income in 2000.
INTEREST INCOME. In 2000, interest income was $1.4 million as compared
to $0.3 million in 1999. The increase was due to higher cash balances in 2000 as
compared to 1999. The Acacia Technologies group received gross proceeds of $38.5
million from outside investors in connection with Acacia Research's warrant call
and private equity financings in 2000.
EQUITY IN LOSSES OF AFFILIATES. In 2000, equity in losses of
affiliates was $1.7 million as compared to $1.1 million in 1999. In 2000, losses
were primarily attributable to a loss of $1.1 million for Acacia Research's
-189-
investment in Mediaconnex. This amount was offset by a decrease in the
recognized losses for Whitewing Labs, Acacia Media Technologies and
Signature-mail.com totaling $0.6 million in 2000 as compared to $1.1 million in
1999.
DISCONTINUED OPERATIONS. On February 13, 2001, the board of directors of
Soundbreak.com resolved to cease operations as of February 15, 2001 and
liquidate the remaining assets and liabilities of the company. Accordingly, the
Acacia Technologies group reported the results of operations and the estimated
loss on disposal of Soundbreak.com as results of discontinued operations in the
statements of operations in 2000. Discontinued operations of Soundbreak.com
included $7.4 million of loss from discontinued operations in 2000 and $2.1
million of accrued expenses to be incurred in connection with its cessation of
operations. Operating results in 1999 were restated to present Soundbreak.com as
discontinued operations resulting in a loss from discontinued operations of $0.8
million in 1999.
INFLATION
Inflation has not had a significant impact on the Acacia Technologies group
in the current or previous periods.
LIQUIDITY AND CAPITAL RESOURCES
At June 30, 2002 and December 31, 2001, the Acacia Technologies group had
cash and short-term investments of $43.6 million and $51.2 million,
respectively, including discontinued operations. Working capital was $40.5
million and $47.6 million at June 30, 2002 and December 31, 2001, respectively.
The Acacia Technologies group's short-term investments are held primarily in
money market accounts and marketable equity securities.
Net cash used in continuing operating activities was $2.8 million during
the six months ended June 30, 2002. Net cash used in continuing operating
activities was primarily due to a net loss from continuing operations of $5.3
million, net sales of trading securities of $3.1 million and a decrease in
working capital of $0.7 million. The Acacia Technologies group did not conduct
any significant investing and financing activities during the six months ended
June 30, 2002.
Net cash provided by continuing operating activities was $6.8 million in
2001. The Acacia Technologies group's net income (loss) from continuing
operating activities was $5.8 million, $(14.6) million and $(5.8) million in
2001, 2000 and 1999. In 2001, Acacia Technologies' positive cash flows provided
by continuing operating activities was primarily due to the receipt of $24.2
million in settlement and license fee payments from several television
manufactures related to Acacia Technologies' V-chip technology, offset by
related legal expenses of $11.5 million associated with the various license
and/or settlement agreements. As discussed above, the V-chip patent expires in
July 2003. In addition, cash flows from continuing operations was increased by
the receipt of $1.5 million in license fee payments that have been recorded as
deferred revenues at December 31, 2001, and reduced by the purchase of $4.1
million in equity securities classified as trading securities. Included in
division net income from continuing operating activities is $2.6 million in
non-cash expenses including depreciation, amortization and stock compensation
charges. In 2001, the Acacia Technologies group had an additional $2.2 million
of net cash used in operating activities of discontinued operations.
The Acacia Technologies group's net cash used in investing activities of
continuing operations was $5.9 million in 2001. Significant investing activities
allocated to the Acacia Technologies group in 2001 include net purchases of
common stock from minority stockholders by Soundview Technologies totaling $2.6
million and the purchase by Acacia Research Corporation of the minority
interests in Acacia Media Technologies Corporation totaling $3.3 million. The
Acacia Technologies group had an additional $0.1 million used in investing
activities of discontinued operations.
Net cash attributed to the Acacia Technologies group was $18.7 million,
$21.7 million and $39.8 million in 2001, 2000 and 1999. Cash provided by
financing activities in 2001 was primarily due to $17.8 million of net proceeds
allocated to the Acacia Technologies group related to Acacia Research
Corporation institutional private
-190-
equity financing in January 2001 and allocated proceeds from the exercise of
Acacia Research Corporation stock options and warrants totaling $1.8 million.
In 2001, the Acacia Technologies group recorded net income of $5.8 million.
Prior to 2001, the Acacia Technologies group has sustained losses since its
inception, contributing to an accumulated net loss of $37.2 million (excluding
impact of $21.7 million related to 10% stock dividend in 2001), which includes
income from continuing operations of $5.8 million in 2001 and losses from
continuing operations of $6.6 million for the six months ended June 30, 2002,
and $(14.6) million and $(5.8) million in 2000 and 1999, respectively. There can
be no assurance that the Acacia Technologies group will continue to be
profitable.
The Acacia Technologies group has no significant commitments for capital
expenditures in 2001. The Acacia Technologies group's minimum rental commitments
on operating leases related to continuing operations total $0.4 million through
November 2003 (excluding any allocated rent expenses). The Acacia Technologies
group has no committed lines of credit or other significant committed funding.
However, the Acacia Technologies group anticipates that existing working capital
reserves will provide sufficient funds for its operating expenses for at least
the next twelve months in the absence of making any major new investments.
RECENT ACCOUNTING PRONOUNCEMENTS
Refer to Note 12 to the Acacia Technologies group financial statements
included elsewhere herein.
-191-
ADOPTION OF 2002 COMBIMATRIX STOCK INCENTIVE PLAN AND
2002 ACACIA TECHNOLOGIES STOCK INCENTIVE PLAN
SUMMARY OF THE INCENTIVE PLANS
INTRODUCTION
The 2002 Acacia Technologies Stock Incentive Plan and the 2002 CombiMatrix
Stock Incentive Plan, referred to below as the incentive plans, are intended to
serve as successor plans to the Acacia Research 1996 Stock Option Plan. The 2002
CombiMatrix Plan is intended to serve as the successor plan to CombiMatrix
Corporation's existing stock option plans, the 1995 CombiMatrix Corporation
Stock Option Plan, the CombiMatrix Corporation 1998 Stock Option Plan and the
CombiMatrix Corporation 2000 Stock Awards Plan.
Upon the consummation of the recapitalization, all outstanding options to
purchase Acacia Research common stock under the Acacia Research 1996 Plan will
be converted to replacement options to purchase AR-Acacia Technologies stock and
AR-CombiMatrix stock and transferred to the 2002 Acacia Technologies Plan and
the 2002 CombiMatrix Plan, respectively. Upon the consummation of the merger,
all outstanding options to purchase CombiMatrix Corporation common stock under
the existing CombiMatrix Corporation plans will be converted to replacement
options to purchase AR-CombiMatrix stock and transferred to the 2002 CombiMatrix
Plan.
The replacement options will continue to be governed by the terms of the
original options unless our compensation committee decides to extend one or more
features of the 2002 Acacia Technologies Plan or the 2002 CombiMatrix Plan to
those options. Neither the Acacia Research 1996 Plan nor the existing
CombiMatrix Corporation plans will be terminated. However, no further option
grants will be made under those plans.
The terms of each of the incentive plans are identical except that
AR-Acacia Technologies stock may be issued only under the 2002 Acacia
Technologies Plan and AR-CombiMatrix stock may be issued only under the 2002
CombiMatrix Plan.
AR-ACACIA TECHNOLOGIES STOCK
The number of shares of AR-Acacia Technologies stock that will be
authorized under the 2002 Acacia Technologies Plan will be equal to 5,700,000
minus the total number of shares of Acacia Research common stock issued upon the
exercise of options granted under the Acacia Research 1996 Plan as of the
effective date of the merger and recapitalization (whether such shares were
issued before, or will be issued after, the date of this proxy statement). As of
November 1, 2002, a total of 492,145 shares of Acacia Research common stock had
been issued upon the exercise of options granted under the Acacia Research 1996
Plan. Also as of that date, options to purchase 3,487,505 shares of Acacia
Research common stock were outstanding under the Acacia Research 1996 Plan.
Assuming no change in these numbers between November 1, 2002 and the effective
date of the merger, the number of shares authorized under the 2002 Acacia
Technologies Plan would be 5,207,855, the number of shares subject to
outstanding options issued would be 3,487,505, and the number of shares
remaining and available for issuance pursuant to new option grants would be
1,720,350.
The share reserve under the 2002 Acacia Technologies Plan will
automatically increase on the first trading day in January each calendar year,
beginning with calendar year 2003, by an amount equal to three percent of the
total number of shares of AR-Acacia Technologies stock outstanding on the last
trading day of December in the prior calendar year, but in no event will any
such annual increase exceed 500,000 shares and in no event will the total number
of shares of AR-Acacia Technologies stock in the share reserve (as adjusted for
all such annual increases) exceed 20,000,000 shares. No participant in the 2002
Acacia Technologies Plan may be granted stock options, direct stock issuances or
share right awards for more than 500,000 shares of AR-Acacia Technologies stock
in total in any calendar year.
-192-
AR-COMBIMATRIX STOCK
The number of shares of AR-CombiMatrix stock that will be authorized under
the 2002 CombiMatrix Plan will be equal to 9,000,000 minus the sum of (i) the
exchange ratio in the merger of Acacia Research common stock for AR-CombiMatrix
stock times the total number of shares of Acacia Research common stock issued
upon the exercise of options granted under the Acacia Research 1996 Plan prior
to the merger and recapitalization (whether such shares were issued before, or
will be issued after, the date of this proxy statement) plus (ii) the total
number of shares of CombiMatrix Corporation common stock issued upon the
exercise of options granted under all of CombiMatrix Corporation's stock option
plans prior to the effective time of the merger and recapitalization.
As of November 1, 2002, the exchange ratio would have been 0.5582, a total
of 492,145 shares of Acacia Research common stock had been issued upon the
exercise of options granted under the Acacia Research 1996 Plan, and a total of
232,970 shares of CombiMatrix Corporation common stock had been issued upon the
exercise of options granted under all of CombiMatrix Corporation's stock option
plans. Also as of that date, options to purchase 3,487,505 shares of Acacia
Research common stock were outstanding under the Acacia Research 1996 Plan and
options to purchase 3,717,660 shares of CombiMatrix Corporation common stock
were outstanding under all of CombiMatrix Corporation's stock option plans.
Assuming no change in these numbers between November 1, 2002 and the effective
date of the merger, the number of shares authorized under the 2002 CombiMatrix
Plan would be 8,492,315, the number of shares subject to outstanding options
would be 5,664,385, and the number of shares remaining and available for
issuance pursuant to new option grants would be 2,827,930.
The share reserve under the 2002 CombiMatrix Plan will automatically
increase on the first trading day in January each calendar year, beginning with
calendar year 2003, by an amount equal to three percent of the total number of
shares of AR-CombiMatrix stock outstanding on the last trading day of December
in the prior calendar year, but in no event will any such annual increase exceed
600,000 shares and in no event will the total number of shares of AR-CombiMatrix
stock in the share reserve (as adjusted for all such annual increases) exceed
20,000,000 shares. No participant in the 2002 CombiMatrix Plan may be granted
stock options, direct stock issuances or share right awards for more than
1,000,000 shares of AR-CombiMatrix stock in total in any calendar year.
PROGRAMS
GENERAL
Each of the incentive plans has four separate programs:
o the discretionary option grant program, under which our compensation
committee may grant (1) non-statutory options to purchase shares of
AR-Acacia Technologies stock and AR-CombiMatrix stock, as applicable,
to eligible individuals in the employ or service of Acacia Research or
our subsidiaries (including employees, non-employee board members and
consultants) at an exercise price not less than 85% of the fair market
value of those shares on the grant date and (2) incentive stock
options to purchase shares of AR-Acacia Technologies stock and
AR-CombiMatrix stock, as applicable, to eligible employees at an
exercise price not less than 100% of the fair market value of those
shares on the grant date (not less than 110% of fair market value if
such employee actually or constructively owns more than 10% of our
voting stock or the voting stock of any of our subsidiaries);
o the stock issuance program, under which eligible individuals may be
issued shares of AR-Acacia Technologies stock and AR-CombiMatrix
stock, as applicable, directly, upon the attainment of performance
milestones or the completion of a specified period of service or as a
bonus for past services;
o the automatic option grant program, under which option grants will
automatically be made at periodic intervals to eligible non-employee
members of our board of directors to purchase shares of AR-Acacia
Technologies stock and AR-CombiMatrix stock, as applicable, at an
exercise price equal to 100% of the fair market value of those shares
on the grant date; and
-193-
o the director fee option grant program, under which non-employee
members of our board of directors may be given the opportunity to
apply a portion of any retainer fee otherwise payable to them in cash
each year to the acquisition of special below-market option grants.
Eligibility. The individuals eligible to participate in the incentive plans
include officers, employees, board members and consultants of Acacia Research
and our subsidiaries. However, only non-employee members of our board of
directors are eligible to participate in the automatic option grant program and
the director fee option grant program.
Administration. Our compensation committee will administer the
discretionary option grant and stock issuance programs. This committee will
determine which eligible individuals are to receive option grants or stock
issuances under those programs, the time or times when the grants or issuances
are to be made, the number of shares subject to each grant or issuance, the
status of any granted option as either an incentive stock option or a
non-statutory stock option under the federal tax laws, the vesting schedule to
be in effect for the option grant or stock issuance and the maximum term for
which any granted option is to remain outstanding.
DISCRETIONARY OPTION GRANT PROGRAM. Under this program, employees, third
party service providers and non-employee board members may be granted incentive
stock options or non-statutory stock options.
Program Features. The discretionary option grant program will include the
following features:
o The exercise price for any option granted under the incentive plans
may be paid in cash, or in shares of AR-Acacia Technologies stock if
the options are for the purchase of AR-Acacia Technologies stock or in
shares of AR-CombiMatrix stock if the options are for the purchase of
AR-CombiMatrix stock. Any such stock used to pay all or a portion of
the exercise price must have been held by the optionee for at least
six months as of the exercise date and shall be valued at fair market
value on the exercise date. The option may also be exercised through a
same-day sale program without any cash outlay by the optionee.
o The compensation committee will have the authority to cancel
outstanding options under the discretionary option grant program in
return for the grant of new options for the same or different number
of option shares with an exercise price per share based upon the fair
market value of AR-Acacia Technologies stock or AR-CombiMatrix stock,
as applicable, on the new grant date.
o Stock appreciation rights may be issued under the discretionary option
grant program. These rights will provide the holders with the election
to surrender their outstanding options for a payment from us equal to
the fair market value of the shares subject to the surrendered options
less the exercise price payable for those shares. We may make the
payment in cash or in shares of AR-Acacia Technologies stock or
AR-CombiMatrix stock, as applicable.
CHANGE IN CONTROL. Unless otherwise set forth in the documents evidencing
an option, in the event that we are acquired by merger, asset sale, or a
successful tender offer for more than fifty percent of outstanding voting stock
or there is a change in the majority of our board through one or more contested
elections, each outstanding option under the discretionary option grant program,
whether or not assumed by the successor corporation, will immediately become
exercisable for all the option shares, and all outstanding unvested shares will
immediately vest. In addition, our repurchase rights with respect to those
shares shall automatically terminate.
STOCK ISSUANCE PROGRAM. Eligible individuals may be issued shares of
AR-Acacia Technologies stock or AR-CombiMatrix stock, as applicable, through
direct issuances in amounts to be determined by the compensation committee.
Shares of AR-Acacia Technologies stock or AR-CombiMatrix stock, as applicable,
may also be issued pursuant to awards that entitle the recipients to receive
shares upon the attainment of designated performance goals. Under this program,
the purchase price for the shares shall not be less than 100% of the fair market
value of the shares on the date of issuance, and payment may be in the form of
cash or past services rendered. In the event of a change of control, our
repurchase rights for unvested shares under this program will terminate and all
shares of stock subject to those rights shall immediately vest in full, except
to the extent limited by the plan administrator.
-194-
AUTOMATIC OPTION GRANT PROGRAM. Each individual who first becomes a
non-employee board member at any time after the date of the adoption of the
incentive plans by our board of directors will automatically receive an option
to purchase 20,000 shares of AR-Acacia Technologies stock and 20,000 shares of
AR-CombiMatrix stock on the date the individual joins the board. In addition, on
the first business day in each calendar year following the adoption of the
incentive plans by our board of directors, each non-employee board member then
in office, including each of our current non-employee board members who is then
in office, will automatically be granted an option to purchase 15,000 shares of
AR-Acacia Technologies stock and 15,000 shares of AR-CombiMatrix stock, provided
that the individual has served on the board for at least six months.
Each automatic grant will have an exercise price per share equal to the
fair market value per share of AR-Acacia Technologies stock or AR-CombiMatrix
stock, as applicable, on the grant date and will have a term of 10 years,
subject to earlier termination following the optionee's cessation of board
service. Each 20,000-share initial grant and each annual 15,000-share option
grant shall become exercisable in a series of four equal quarterly installments
upon the optionee's completion of each three months of service as a board member
over the 12-month period measured from the option grant date.
Under the Acacia Research 1996 Plan, each non-employee director
automatically receives a nondiscretionary grant of options to purchase 22,000
shares of Acacia Research common stock upon initially joining the board of
directors. In addition, provided that the individual has served on the board for
at least six months, on the first day in each calendar year, each non-employee
director will receive a nondiscretionary grant of options to purchase 13,200
shares of Acacia Research's common stock. All such grants are made at an
exercise price equal to the fair market value of the Acacia Research common
stock on the date of grant.
In the event of a change in control of our company while the optionee
remains on our board, each outstanding option under this program will
automatically accelerate so that each option shall vest and become exercisable
immediately prior to the change in control.
DIRECTOR FEE OPTION GRANT PROGRAM. If this program is put into effect in
the future, then each non-employee member of our board may elect to apply all or
a portion of any cash retainer fee for the year to the acquisition of a
below-market option grant. The option grant will automatically be made on the
first trading day in January in the year for which the non-employee board member
would otherwise be paid the cash retainer fee in the absence of his or her
election. The option will have an exercise price per share equal to one-third of
the fair market value of the option shares on the grant date, and the number of
shares subject to the option will be determined by dividing the amount of the
retainer fee applied to the program by two-thirds of the fair market value per
share of AR-Acacia Technologies stock or AR-CombiMatrix stock, as applicable, on
the grant date. As a result, the option will be structured so that the fair
market value of the option shares on the grant date less the aggregate exercise
price payable for those shares will be equal to the portion of the retainer fee
applied to that option. The option will become exercisable in a series of twelve
equal monthly installments over the calendar year for which the election is in
effect. However, the option will become immediately exercisable for all the
option shares upon the death or disability of the optionee while serving as a
board member. In the event of a change in control while the optionee remains on
our board, each outstanding option under this program will automatically
accelerate so that each option shall vest and become exercisable immediately
prior to the change in control.
ADDITIONAL PROGRAM FEATURES. The incentive plans will also have the
following features:
o Limited stock appreciation rights will automatically be included as
part of each grant made under the automatic and director fee option
grant programs, and these rights may also be granted to one or more of
our officers as part of their option grants under the discretionary
option grant program. Options with this feature may be surrendered to
us upon the successful completion of a hostile tender offer for more
than 50% of our outstanding voting stock or a change in the majority
of our board through one or more contested elections. In return for
the surrendered option, the optionee will be entitled to a cash
payment from us in an amount per surrendered option share based upon
the highest price per share of AR-Acacia Technologies stock or
AR-CombiMatrix stock, as applicable, paid in a tender offer, or the
fair market value per share of AR-Acacia Technologies stock or
AR-CombiMatrix stock, as applicable, on the effective date of a change
in the majority of our board.
-195-
o Our board may amend or modify the incentive plans at any time, subject
to any required stockholder approval. The incentive plans will
terminate no later than the tenth anniversary of the approval of the
incentive plans by our stockholders.
NEW PLAN BENEFITS
The following table sets forth the beneficial ownership of the
AR-CombiMatrix stock and the AR-Acacia Technologies stock, based on share
ownership information known to us as of November 1, 2002 and assuming that the
recapitalization and merger were effective as of such date and asssuming that
each share of Acacia Research common stock would convert into 0.5582 of a share
of AR-CombiMatrix stock and one share of AR-Acacia Technologies stock.
The following table sets forth pro forma information regarding the option
issuances to be made under the 2002 Acacia Technologies Stock Incentive Plan and
the 2002 CombiMatrix Stock Incentive Plan by the conversion of all options
currently outstanding under the Acacia Research 1996 Stock Option Plan and the
existing stock option plans of CombiMatrix Corporation, based on information
known to us as of November 1, 2002 and assuming that: (i) the recapitalization
and merger were effective as of such date, (ii) the stockholders have approved
each of the proposals to be voted on at the special meeting and (iii) each share
of Acacia Research common stock would convert into 0.5582 of a share of
AR-CombiMatrix stock and one share of AR-Acacia Technologies stock:
NEW PLAN BENEFITS
------------------------------------------------------------------------------------------
NUMBER OF UNITS
-----------------------------------------------
2002 COMBIMATRIX 2002 ACACIA TECHNOLOGIES
NAME AND POSITION STOCK INCENTIVE PLAN STOCK INCENTIVE PLAN
---------------------------------------- -------------------- ------------------------
Paul R. Ryan,
Chairman and Chief Executive Officer 534,974 841,963
Robert L. Harris, II,
President 478,666 759,001
Amit Kumar, Ph.D.,
Chief Executive Officer and President of
CombiMatrix Corporation 571,658 397,103
Executive Group 1,622,139 2,064,067
Non-Executive Director Group 161,223 190,300
Non-Executive Officer Employee Group 2,816,026 1,189,899
-196-
EQUITY COMPENSATION PLAN INFORMATION
Below is a tabular presentation of information regarding the existing stock
option plans of Acacia Research as of the end Acacia Research's last fiscal
year:
(C) NUMBER OF
SECURITIES REMAINING
AVAILABLE FOR FUTURE
(A) NUMBER OF SECURITIES TO (B) WEIGHTED-AVERAGE ISSUANCE UNDER EQUITY
BE ISSUED UPON EXERCISE OF EXERCISE PRICE OF COMPENSATION PLANS
OUTSTANDING OPTIONS, OUTSTANDING OPTIONS, (EXCLUDING SECURITIES
PLAN CATEGORY WARRANTS AND RIGHTS WARRANTS AND RIGHTS REFLECTED IN COLUMN (A))
-------------------------------------- --------------------------- -------------------- ------------------------
Equity compensation plans
approved by security holders(1) 3,482,245 $16.94 1,481,974
Equity compensation plans
not approved by security holders(2) N/A N/A N/A
-------------------------------------- --------- ------ ---------
TOTAL 3,482,245 $16.94 1,481,974
----------
(1) The sole plan under which equity securities of Acacia Research are
authorized for issuance is its Acacia Research Corporation 1996 Stock
Option Plan, which has previously been approved by security holders. Acacia
Research proposes herein to adopt two new plans, the 2002 Acacia
Technologies Stock Incentive Plan and the 2002 CombiMatrix Stock Incentive
Plan. For a description of our proposed new stock option plans, please see
the discussion above.
(2) Acacia Research has not authorized the issuance of its equity securities
under any plan not approved by security holders.
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
We believe that, based upon the laws as in effect on the date of this
document, the following are the material United States federal income tax
consequences to participants and us of awards granted under the incentive plans.
State, local and foreign laws are not discussed. The discussion assumes that
participants acquiring stock under the incentive plans will hold such stock as a
capital asset. THIS SUMMARY IS NOT A COMPLETE ANALYSIS OF ALL POTENTIAL TAX
CONSEQUENCES RELEVANT TO US AND PARTICIPANTS UNDER THE INCENTIVE PLANS AND DOES
NOT DESCRIBE TAX CONSEQUENCES BASED ON PARTICULAR CIRCUMSTANCES. FOR THESE
REASONS, PARTICIPANTS SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO ANY SPECIFIC
QUESTIONS REGARDING THE TAX CONSEQUENCES OF AWARDS GRANTED UNDER THE INCENTIVE
PLANS.
INCENTIVE STOCK OPTIONS
The grant of an incentive stock option does not give rise to federal income
tax to the option holder. Similarly, the exercise of an incentive stock option
generally does not give rise to federal income tax to the option holder, as long
as the option holder is continuously employed by us or our subsidiaries from the
date the option is granted until three months prior to the date the option is
exercised. This employment requirement is subject to certain limited exceptions.
Under proposed regulations issued by the Internal Revenue Service ("IRS") in
2001, FICA and Medicare tax withholding will be required upon the exercise of an
incentive stock option on or after January 1, 2003. The proposed regulations
will not become effective unless and until they are published as final
regulations. The exercise of an incentive stock option may cause the option
holder to incur alternative minimum tax liability.
If the option holder holds the option shares acquired upon exercise of an
incentive stock option for more than two years from the date the option is
granted and more than one year from the date of exercise, any gain or loss
recognized on the sale or other disposition of the option shares will be capital
gain or loss, measured by the difference between the sales price and the amount
paid for the shares by the option holder. The capital gain or loss will be
long-term or short-term, depending on the option holder's holding period for the
shares. If the option holder disposes of the option shares before the end of the
required holding period, the option holder will recognize taxable ordinary
income at the time of the disposition equal to the excess, if any, of (i) the
fair market value of the option shares at the time of exercise (or, under
certain circumstances, the selling price, if lower) over (ii) the exercise price
-197-
paid by the option holder. Any additional amount received by the option holder
will be treated as capital gain, which will be long-term or short-term,
depending on the holding period for the shares.
We are generally not entitled to a tax deduction at any time with respect
to an incentive stock option. If, however, the option holder does not satisfy
the employment or holding period requirements described above, we will be
allowed a deduction in an amount equal to the ordinary income recognized by the
option holder, subject to certain limitations and W-2 reporting requirements.
NON-STATUTORY STOCK OPTIONS
The grant of a non-statutory stock option generally does not result in
federal income tax to the option holder. However, the option holder will
recognize taxable ordinary income upon the exercise of a non-statutory option
equal to the excess of the fair market value of the option shares on the
exercise date over the exercise price paid by the option holder. However, if
stock acquired under an option is subject to certain transfer restrictions and
vesting requirements, rules similar to those discussed below under "Stock Grants
Under Stock Issuance Program" will apply with respect to the timing and amount
for ordinary income to be recognized by the option holder and the availability
of an election under Section 83(b) of the Internal Revenue Code (the "Code").
On the sale of shares acquired under an option, the option holder will
recognize capital gain or loss in an amount equal to the difference between the
sales price and the sum of the exercise price paid by the option holder for the
shares plus any amount recognized as ordinary income upon the exercise of the
option.
With respect to employees, we are required to withhold income and
employment taxes based on the amount of ordinary income recognized by the option
holder. If the option holder is required to recognize ordinary income under the
above rules, we will be allowed a tax deduction in the amount of such ordinary
income, subject to certain limitations and W-2 or 1099 reporting requirements.
STOCK GRANTS UNDER STOCK ISSUANCE PROGRAM
The recipient will generally recognize taxable ordinary income on the
receipt of a direct grant of stock in an amount equal to the fair market value
of the shares on the date of grant. However, to the extent the stock is subject
to certain transfer restrictions and vesting requirements imposed when the stock
is granted, no taxable income will be recognized by the recipient upon the grant
of such stock unless the recipient makes an election under Section 83(b) of the
Code. If the recipient does not file a timely Section 83(b) election with the
IRS with respect to such unvested shares, he or she will recognize ordinary
income at the time his or her interest in the shares becomes vested. The amount
of this ordinary income will be equal to the fair market value of the shares on
the date or dates the shares become vested, less the amount, if any, the
recipient paid for the shares.
If the recipient files a Section 83(b) election with the IRS on a timely
basis, the recipient will recognize ordinary income equal to the fair market
value of the shares received on the date of grant (rather than the date the
shares become vested), less the amount, if any, paid for the shares by the
recipient.
If the recipient forfeits shares for which he or she has made a Section
83(b) election because the recipient failed to satisfy the vesting requirements,
he or she will not be entitled to a deduction for the ordinary income previously
recognized as a result of the election. Recipients of stock grants should
consult their tax advisor regarding the possible use of a Section 83(b)
election, which must be made within 30 days following the grant of the shares to
the recipient.
On the sale of shares acquired under a stock grant, the recipient will
recognize capital gain or loss in an amount equal to the difference between the
sales price and the sum of the purchase price paid by the recipient, if any, for
the shares plus any amount recognized as ordinary income upon the receipt or
vesting of the shares or pursuant to a Section 83(b) election.
With respect to employees, we are required to withhold income and
employment taxes based on the amount of ordinary income recognized by the
recipient on the receipt or vesting of shares or in connection a Section 83(b)
-198-
election made by the recipient. If the recipient is required to recognize
ordinary income under the above rules, we will be allowed a tax deduction in the
amount of such ordinary income, subject to certain limitations and W-2 or 1099
reporting requirements.
CAPITAL GAINS AND LOSSES
Under current law, capital gain or loss on the sale of stock acquired by
participants under the incentive plans will be long-term if the participant's
holding period for the shares is more than one year and short-term if the
participant's holding period for the shares is one year or less. Under current
law, there is a maximum federal tax rate of 20% for long-term capital gains and
short-term capital gains are taxed at the same rates as ordinary income. The
deductibility of capital losses is subject to certain limitations.
CHANGE IN CONTROL
In general, if the total payments to an individual that are contingent upon
a "change in control" of Acacia Research (as defined in Section 280G of the
Code), including payments or rights under the incentive plans that vest upon a
"change in control," equal or exceed three times the individual's "base amount"
(generally, such individual's average annual compensation for the five calendar
years preceding the change in control), then, subject to certain exceptions, the
payments may be treated as "parachute payments" under the Code. The excess of
the parachute payments to an individual over the individual's base amount is not
deductible by us and the individual is subject to a 20% excise tax on the
non-deductible portion of the parachute payments.
CERTAIN LIMITATIONS ON DEDUCTIBILITY OF EXECUTIVE COMPENSATION
Section 162(m) of the Code generally denies a deduction to publicly held
corporations for compensation paid to certain executive officers in excess of $1
million per executive per taxable year (including any deduction attributable to
stock options or stock grants). Certain kinds of compensation, including
qualified "performance-based compensation," are disregarded for purposes of the
deduction limitation. Compensation attributable to stock options will qualify as
performance-based compensation if the exercise price of the options is no less
than the fair market value of the underlying stock on the date of grant, the
options are granted by a compensation committee comprised solely of "outside
directors" (as defined in the Treasury Regulations issued under Section 162(m))
and certain other requirements are met. Compensation attributable to stock
grants or share right awards may also qualify as performance-based compensation
if the grant or vesting of the stock is based on the attainment of a specific
performance goal and otherwise satisfies the standards for performance-based
compensation.
The incentive plans are not subject to any provisions of the Employee
Retirement Income Security Act of 1974 ("ERISA") and are not qualified under
Section 401(a) of the Code.
VOTE REQUIRED
Approval of each incentive plan proposal requires the favorable vote of a
majority of the shares present or represented and entitled to vote at the
special meeting.
RECOMMENDATION OF OUR BOARD OF DIRECTORS
OUR BOARD OF DIRECTORS HAS CAREFULLY CONSIDERED EACH INCENTIVE PLAN
PROPOSAL AND BELIEVES THAT THESE PROPOSALS ARE IN THE BEST INTERESTS OF ACACIA
RESEARCH AND OUR STOCKHOLDERS. OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS
THAT YOU APPROVE THESE PROPOSALS.
-199-
OTHER ITEMS
PRICE RANGE AND DIVIDENDS ON EXISTING COMMON STOCK
Our common stock currently is listed on the NASDAQ National Market
("NASDAQ") under the symbol "ACRI". The table below sets forth, for the fiscal
periods indicated, the high and low sale prices per share of our common stock on
the NASDAQ and the cash distributions declared relating to such periods.
SALES PRICE PER SHARE OF
OUR COMMON STOCK
DISTRIBUTION
HIGH LOW DECLARED(1)
------- ------ ------------
2002
----
First Quarter ............................... $13.260 $8.470 $0.00
Second Quarter .............................. $11.500 $5.900 $0.00
Third Quarter ............................... $ 7.150 $3.500 $0.00
Fourth Quarter (through November 7, 2002) ... $ 5.300 $3.650 N/A
2001
----
First Quarter ............................... $18.977 $5.227 $0.00
Second Quarter .............................. $16.136 $4.687 $0.00
Third Quarter ............................... $16.655 $5.827 $0.00
Fourth Quarter .............................. $13.418 $8.291 $0.00
----------
(1) A ten percent stock dividend was declared on October 22, 2001.
The closing sale price of our common stock on the NASDAQ was $9.33 per
share on March 19, 2002, the trading day prior to our announcement of the merger
and recapitalization proposal, and $5.02 per share on November 7, 2002, the
last trading day prior to the date of this proxy statement. As of November 1,
2002, 19,640,808 shares of our common stock were outstanding and we had 199
holders of record.
INFORMATION ABOUT STOCKHOLDER PROPOSALS
Proposals of stockholders intended to be presented at the 2003 Annual
Meeting must be received by Acacia Research by January 14, 2003 to be considered
for inclusion in Acacia Research's proxy statement relating to that meeting.
Stockholders desiring to present a proposal at the 2003 Annual Meeting but who
do not desire to have the proposal included in the proxy materials distributed
by Acacia Research must deliver written notice of such proposal to Acacia
Research on or after January 14, 2003 and on or before February 13, 2003, or the
persons appointed as proxies in connection with the 2003 Annual Meeting will
have discretionary authority to vote on any such proposal.
EXPENSES OF SOLICITATION
We will pay the cost of soliciting proxies for the special meeting. In
addition to soliciting by mail, our directors, officers and other employees may
solicit proxies in person, or by telephone, facsimile transmission or other
means of electronic communication. We will also pay brokers, nominees,
fiduciaries and other custodians their reasonable fees and expenses for sending
proxy materials to beneficial owners and obtaining their instructions. We have
retained Georgeson Shareholder to perform various solicitation services. We will
pay Georgeson Shareholder a fee of $6,500, plus phone and other related
expenses, in connection with their solicitation services.
-200-
LEGAL OPINIONS
Allen Matkins Leck Gamble & Mallory LLP, Los Angeles, California, has
rendered an opinion concerning the validity of the common stock.
PricewaterhouseCoopers LLP has rendered an opinion regarding the tax treatment
of the transactions.
EXPERTS
The consolidated financial statements of Acacia Research as of December 31,
2000 and 2001 and for each of the three years in the period ended December 31,
2001 included in this proxy statement have been so included in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
The financial statements of CombiMatrix Corporation (a development stage
company) as of December 31, 2000 and 2001 and for each of the three years in the
period ended December 31, 2001 and the period from inception (October 4, 1995)
to December 31, 2001, included in this proxy statement have been so included in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
The divisional financial statements of the CombiMatrix group (a development
stage division of Acacia Research) as of December 31, 2000 and 2001 and for each
of the three years in the period ended December 31, 2001 and the period from
inception (October 4, 1995) to December 31, 2001, included in this proxy
statement have been so included in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants given on the authority of
said firm as experts in auditing and accounting.
The divisional financial statements of the Acacia Technologies group (a
division of Acacia Research) as of December 31, 2000 and 2001 and for each of
the three years in the period ended December 31, 2001 included in this proxy
statement have been so included in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
Representatives of PricewaterhouseCoopers LLP will attend the special
meeting and will have an opportunity to make a statement and to respond to
appropriate questions that you pose.
-201-
INDEX
FINANCIAL INFORMATION
Acacia Research Corporation
Report of Independent Accountants
Consolidated Balance Sheets
Consolidated Statements of Operations and Comprehensive Loss
Consolidated Statements of Stockholders' Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
CombiMatrix Corporation (a development stage company)
Report of Independent Accountants
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements of Stockholders' Equity and Comprehensive Loss
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
*Acacia Technologies Group (a division of Acacia Research Corporation)
Report of Independent Accountants
Balance Sheets
Statements of Operations
Statements of Funds Allocated by Acacia Research Corporation and
Accumulated Net Losses
Statements of Cash Flows
Notes to Financial Statements
*CombiMatrix Group (a development stage division of Acacia Research
Corporation)
Report of Independent Accountants
Balance Sheets
Statements of Operations
Statements of Funds Allocated by Acacia Research Corporation and
Accumulated Net Losses
Statements of Cash Flows
Notes to Financial Statements
*NOTE: WE ARE PRESENTING, ALONG WITH OUR FINANCIAL STATEMENTS, THE SEPARATE
FINANCIAL STATEMENTS FOR THE COMBIMATRIX GROUP AND THE ACACIA TECHNOLOGIES
GROUP. THE SEPARATE FINANCIAL STATEMENTS AND ACCOMPANYING NOTES OF THE TWO
GROUPS ARE BEING PROVIDED AS ADDITIONAL DISCLOSURE REGARDING THE HISTORICAL
FINANCIAL PERFORMANCE OF THE TWO DIVISIONS AND TO PROVIDE INVESTORS WITH
INFORMATION REGARDING THE POTENTIAL VALUE AND PROFITABILITY OF THE RESPECTIVE
BUSINESSES, WHICH MAY AFFECT THE RESPECTIVE SHARE VALUES. THE SEPARATE FINANCIAL
STATEMENTS SHOULD BE REVIEWED IN CONJUNCTION WITH ACACIA RESEARCH CORPORATION'S
FINANCIAL STATEMENTS AND ACCOMPANYING NOTES. THE PRESENTATION OF SEPARATE
FINANCIAL STATEMENTS IS NOT INTENDED TO INDICATE THAT WE HAVE CHANGED THE TITLE
TO ANY OF OUR ASSETS OR CHANGED THE RESPONSIBILITY FOR ANY OF OUR LIABILITIES,
NOR IS IT INTENDED TO INDICATE THAT THE RIGHTS OF OUR CREDITORS HAVE BEEN
CHANGED. WE, AND NOT THE INDIVIDUAL GROUPS, WILL BE THE ISSUER OF THE
SECURITIES. HOLDERS OF THE TWO SECURITIES WILL CONTINUE TO BE STOCKHOLDERS OF
ACACIA RESEARCH AND WILL NOT HAVE A SEPARATE AND EXCLUSIVE INTEREST IN THE
RESPECTIVE GROUPS.
F-1
ACACIA RESEARCH CORPORATION
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and
Stockholders of Acacia Research Corporation
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of operations, of stockholders' equity, and of
cash flows present fairly, in all material respects, the financial position of
Acacia Research Corporation ("Acacia" or "we") and its subsidiaries at December
31, 2001 and December 31, 2000, and the results of their operations and their
cash flows for each of the three years in the period ended December 31, 2001, in
conformity with accounting principles generally accepted in the United States of
America. These financial statements are the responsibility of Acacia's
management; our responsibility is to express an opinion on these financial
statements based on our audits. We conducted our audits of these statements in
accordance with auditing standards generally accepted in the United States of
America, which require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
As discussed in Note 2 to the consolidated financial statements, effective
January 1, 2001, Acacia changed its balance sheet classification for accrued
subsidiary employee stock-based compensation charges, resulting in no cumulative
effect on income.
As discussed in Note 2 to the consolidated financial statements, effective
October 1, 2000, Acacia adopted Emerging Issues Task Force Consensus on Issue
No. 00-27, "Application of Issue No. 98-5 to Certain Convertible Instruments,"
resulting in a charge of $246,000 in the year ended December 31, 2000 for
cumulative effect of change in accounting principle due to beneficial conversion
feature of debt.
/s/ PricewaterhouseCoopers LLP
Los Angeles, California
February 25, 2002, except as to Note 14,
which is as of March 27, 2002 and except
as to Note 18, which is as of May 2, 2002
F-2
ACACIA RESEARCH CORPORATION
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE INFORMATION)
AT DECEMBER 31, AT JUNE 30,
-------------------- -----------
2001 2000 2002
--------- -------- -----------
(UNAUDITED)
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 59,451 $ 36,163 $ 49,712
Short-term investments 25,110 40,600 16,699
Prepaid expenses, other receivables and other assets 1,613 1,471 2,682
--------- -------- ---------
Total current assets 86,174 78,234 69,093
Property and equipment, net of accumulated depreciation 4,906 3,727 4,575
Investment in affiliate, at equity -- 346 --
Investment in affiliate, at cost 3,000 3,000 3,000
Patents, net of accumulated amortization 11,855 9,038 10,857
Goodwill, net of accumulated amortization 4,627 3,904 4,627
Other assets 297 267 788
--------- -------- ---------
$ 110,859 $ 98,516 $ 92,940
========= ======== =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable, accrued expenses and other $ 5,756 $ 7,767 $ 5,699
Current portion of deferred revenues 7,088 -- 8,842
Current portion of capital lease obligation 934 -- 976
Accrued stock compensation (Note 2) -- 10,392 --
--------- -------- ---------
Total current liabilities 13,778 18,159 15,517
Deferred income taxes 3,829 2,689 3,679
Deferred revenues, net of current portion 372 -- 266
Capital lease obligation, net of current portion 1,845 -- 1,346
--------- -------- ---------
Total liabilities 19,824 20,848 20,808
--------- -------- ---------
COMMITMENTS AND CONTINGENCIES (NOTE 12):
Minority interests 32,303 17,524 29,379
--------- -------- ---------
STOCKHOLDERS' EQUITY:
Preferred stock, par value $0.001 per share; 20,000,000 shares
authorized; no shares issued or outstanding -- -- --
Common stock, par value $0.001 per share; 60,000,000 shares
authorized; 19,592,459 and 16,090,587 (Notes 1 and 7) shares
issued and outstanding as of December 31, 2001 and 2000,
respectively, and 19,640,808 at June 30, 2002 20 16 20
Additional paid-in capital 158,529 116,017 158,672
Warrants to purchase common stock 199 86 199
Comprehensive (loss) income (4) 77 1
Accumulated deficit (100,012) (56,052) (116,139)
--------- -------- ---------
Total stockholders' equity 58,732 60,144 42,753
--------- -------- ---------
$ 110,859 $ 98,516 $ 92,940
========= ======== =========
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
ACACIA RESEARCH CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE INFORMATION)
FOR THE YEARS ENDED DECEMBER 31,
-----------------------------------------
2001 2000 1999
----------- ----------- -----------
REVENUES:
License fee income $ 24,180 $ -- $ --
Grant revenue 456 17 144
Other income -- 40 122
----------- ----------- -----------
Total revenues 24,636 57 266
----------- ----------- -----------
OPERATING EXPENSES:
Research and development expenses 11,656 8,467 1,806
Non-cash stock compensation expense - research and development 7,183 3,397 --
Marketing, general and administrative expenses 32,664 14,782 4,272
Non-cash stock compensation expense - marketing, general and
administrative 13,636 7,307 146
Amortization of patents and goodwill 2,695 2,251 1,622
Loss on disposal of consolidated subsidiaries -- 1,016 --
----------- ----------- -----------
Total operating expenses 67,834 37,220 7,846
----------- ----------- -----------
Operating loss (43,198) (37,163) (7,580)
----------- ----------- -----------
OTHER INCOME (EXPENSE):
Write-off of equity investments -- (2,603) --
Interest income 3,762 3,086 333
Realized gains (losses) on short-term investments 350 -- --
Unrealized gains (losses) on short-term investments 237 -- --
Interest expense (65) -- (254)
Equity in losses of affiliates (195) (1,746) (1,121)
Other income 77 28 --
----------- ----------- -----------
Total other income (expense) 4,166 (1,235) (1,042)
----------- ----------- -----------
Loss from continuing operations before income taxes and minority
interests (39,032) (38,398) (8,622)
(Provision) benefit for income taxes (780) 73 (20)
----------- ----------- -----------
Loss from continuing operations before minority interests (39,812) (38,325) (8,642)
Minority interests 17,540 9,166 1,221
----------- ----------- -----------
Loss from continuing operations (22,272) (29,159) (7,421)
Discontinued operations
Loss from discontinued operations of Soundbreak.com -- (7,443) (776)
Estimated loss on disposal of Soundbreak.com -- (2,111) --
----------- ----------- -----------
Loss before cumulative effect of change in accounting principle (22,272) (38,713) (8,197)
Cumulative effect of change in accounting principle due to beneficial
conversion feature of debt -- (246) --
----------- ----------- -----------
Net loss (22,272) (38,959) (8,197)
Unrealized (loss) gain on short-term investments (9) 77 --
Unrealized loss on foreign currency translation (72) -- --
----------- ----------- -----------
Comprehensive loss $ (22,353) $ (38,882) $ (8,197)
=========== =========== ===========
Loss per common share:
Basic
Loss from continuing operations $ (1.16) $ (1.78) $ (0.59)
Loss from discontinued operations -- (0.58) (0.06)
Cumulative effect of change in accounting principle -- (0.02) --
----------- ----------- -----------
Net loss $ (1.16) $ (2.38) $ (0.65)
=========== =========== ===========
Diluted
Loss from continuing operations $ (1.16) $ (1.78) $ (0.59)
Loss from discontinued operations -- (0.58) (0.06)
Cumulative effect of change in accounting principle -- (0.02) --
----------- ----------- -----------
Net loss $ (1.16) $ (2.38) $ (0.65)
=========== =========== ===========
Weighted average number of common and potential common shares
outstanding used in computation of loss per share:
Basic 19,259,256 16,346,099 12,649,133
Diluted 19,259,256 16,346,099 12,649,133
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
ACACIA RESEARCH CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE INFORMATION)
(UNAUDITED)
THREE MONTHS ENDED SIX MONTHS ENDED
-------------------------- --------------------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30,
2002 2001 2002 2001
----------- ----------- ----------- -----------
Revenues:
License fee income $ -- $ 10,000 $ -- $ 12,440
Product revenue 274 -- 274 --
Grant revenue 164 91 413 274
----------- ----------- ----------- -----------
Total revenues 438 10,091 687 12,714
----------- ----------- ----------- -----------
Operating expenses:
Cost of sales 253 -- 253 --
Research and development expenses 5,026 2,651 7,694 5,802
Non-cash stock compensation expense - research and development 692 2,013 1,113 4,411
Marketing, general and administrative expenses 5,516 9,550 9,587 15,771
Non-cash stock compensation expense - marketing, general and
administrative 1,451 5,176 2,453 11,197
Amortization of patents and goodwill 564 638 1,128 1,271
----------- ----------- ----------- -----------
Total operating expenses 13,502 20,028 22,228 38,452
----------- ----------- ----------- -----------
Operating loss (13,064) (9,937) (21,541) (25,738)
----------- ----------- ----------- -----------
Other (expense) income:
Interest income 293 1,029 700 2,224
Realized losses on short-term investments (930) -- (1,483) --
Unrealized losses on short-term investments (156) -- (477) --
Interest expense (57) -- (121) --
Equity in losses of affiliate -- (55) -- (110)
Other income 34 57 112 61
----------- ----------- ----------- -----------
Total other (expense) income (816) 1,031 (1,269) 2,175
----------- ----------- ----------- -----------
Loss from operations before income taxes and minority interests (13,880) (8,906) (22,810) (23,563)
Benefit (provision) for income taxes 75 (228) 144 (241)
----------- ----------- ----------- -----------
Loss from operations before minority interests (13,805) (9,134) (22,666) (23,804)
Minority interests 4,104 4,362 6,539 9,553
----------- ----------- ----------- -----------
Net loss (9,701) (4,772) (16,127) (14,251)
Unrealized gains (losses) on short-term investments 47 -- (48) 39
Unrealized gains on foreign currency translation 62 -- 53 --
----------- ----------- ----------- -----------
Comprehensive loss $ (9,592) $ (4,772) $ (16,122) $ (14,212)
=========== =========== =========== ===========
Loss per common share:
Basic $ (0.49) $ (0.25) $ (0.82) $ (0.74)
=========== =========== =========== ===========
Diluted $ (0.49) $ (0.25) $ (0.82) $ (0.74)
=========== =========== =========== ===========
Weighted average number of common and potential common shares
outstanding used in computation of loss per share:
Basicanddiluted 19,634,549 19,503,645 19,622,363 19,260,094
=========== =========== =========== ===========
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
ACACIA RESEARCH CORPORATION
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(IN THOUSANDS, EXCEPT SHARE INFORMATION)
WARRANTS TO
ADDITIONAL PURCHASE
COMMON COMMON PAID-IN COMMON ACCUMULATED COMPREHENSIVE
SHARES STOCK CAPITAL STOCK DEFICIT INCOME (LOSS) TOTAL
---------- ------ ----------- ----------- ----------- ------------- --------
1999
Balance at December 31, 1998 .......... 10,190,815 $10 $ 26,727 $ 100 $ (8,896) $ -- $ 17,941
Net loss .............................. (8,197) (8,197)
Units issued in private
placements, net .................... 974,771 1 19,014 58 19,073
Shares issued to purchase
equity investments ................. 60,107 288 288
Stock options exercised ............... 326,450 1 757 758
Warrants exercised .................... 2,055,050 2 14,542 (100) 14,444
Increase in capital due to issuance
of stock by subsidiaries ........... 928 928
Compensation expense relating to
stock options and warrants ......... 27 27
---------- --- -------- ----- --------- ---- --------
Balance at December 31, 1999 .......... 13,607,193 14 62,283 58 (17,093) -- 45,262
2000
Net loss .............................. (38,959) (38,959)
Units issued in private
placements, net .................... 872,638 1 22,199 86 22,286
Stock options exercised ............... 543,961 1 2,131 2,132
Stock issuance related to acquisition
of additional CombiMatrix shares ... 488,557 11,634 11,634
Warrants exercised .................... 578,238 14,878 (58) 14,820
Increase in capital due to issuance
of stock by subsidiaries ........... 2,293 2,293
Compensation expense relating
to stock options and warrants ...... 599 599
Unrealized gain on short-term
investments ........................ 77 77
---------- --- -------- ----- --------- ---- --------
Balance at December 31, 2000 .......... 16,090,587 16 116,017 86 (56,052) 77 60,144
2001
Net loss .............................. (22,272) (22,272)
Units issued in private
placement, net ..................... 1,127,274 1 18,247 113 18,361
Stock options exercised ............... 596,888 1 1,251 1,252
Increase in capital due to issuance
of stock by subsidiaries ........... 1,283 1,283
Compensation expense relating to
stock options and warrants ......... 47 47
Stock dividend (Note 1 and 7) ......... 1,777,710 2 21,684 (21,688) (2)
Unrealized loss on short-term
investments ........................ (9) (9)
Unrealized loss on foreign
currency translation ............... (72) (72)
---------- --- -------- ----- --------- ---- --------
Balance at December 31, 2001 .......... 19,592,459 20 158,529 199 (100,012) (4) 58,732
FOR THE SIX MONTHS ENDED JUNE 30, 2002
(UNAUDITED)
Net loss .............................. (16,127) (16,127)
Stock options exercised ............... 48,349 136 136
Compensation expense relating to
stock options and warrants ......... 19 19
Unrealized loss on short-term
investments ........................ (48) (48)
Unrealized gain on foreign
currency translation ............... 53 53
Other ................................. (12) (12)
---------- --- -------- ----- --------- ---- --------
Balance at June 30, 2002 (Unaudited) .. 19,640,808 $20 $158,672 $ 199 $(116,139) $ 1 $ 42,753
========== === ======== ===== ========= ==== ========
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED FINANCIAL
STATEMENTS.
F-6
ACACIA RESEARCH CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
FOR THE SIX MONTHS
FOR THE YEARS ENDED DECEMBER 31, ENDED JUNE 30,
-------------------------------- --------------------
2001 2000 1999 2002 2001
-------- -------- ------- -------- --------
(UNAUDITED)
CASH FLOWS FROM OPERATING ACTIVITIES:
Loss from continuing operations $(22,272) $(29,159) $(7,421) $(16,127) $(14,251)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization 3,869 2,657 1,771 1,873 1,740
Equity in losses of affiliates 195 1,746 1,121 -- 110
Minority interests in net loss (17,540) (9,166) (1,221) (6,539) (9,553)
Compensation expense relating to stock options and warrants 20,819 10,704 146 3,566 15,608
Charge for acquired in-process research and development -- 2,508 -- -- --
Deferred tax benefit (182) (81) -- (150) (79)
Write-off of other assets 918 -- -- -- --
Write-off of equity investments -- 2,603 -- -- --
Net (purchases) sales of trading securities (4,135) -- -- 3,133 --
Unrealized (gains) losses on short-term investments (237) -- -- 477 --
Other 354 293 251 113 361
CHANGES IN ASSETS AND LIABILITIES, NET OF EFFECTS OF ACQUISITIONS:
Prepaid expenses, other receivables and other assets (713) (2,029) 223 (1,564) (922)
Accounts payable, accrued expenses and other 1,085 2,040 415 360 1,364
Deferred revenues 7,460 -- -- 1,648 --
-------- -------- ------- -------- --------
Net cash used in operating activities of continuing operations (10,379) (17,884) (4,715) (13,210) (5,622)
Net cash used in operating activities of discontinued operations (2,182) (16,600) (1,420) (415) (1,698)
-------- -------- ------- -------- --------
Net cash used in operating activities (12,561) (34,484) (6,135) (13,625) (7,320)
-------- -------- ------- -------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of equity investments -- (54) (2,387) -- --
Purchase of additional equity in consolidated subsidiaries (3,304) (970) -- -- --
Deposit on investment -- -- (3,000) -- --
Withdrawals from partnerships -- -- 1,710 -- --
Purchase of property and equipment (3,775) (2,476) (241) (437) (2,554)
Proceeds from sale and leaseback arrangement 3,000 -- -- -- --
Sale of available-for-sale investments 76,275 3,975 -- 9,877 11,923
Purchase of available-for-sale investments (56,686) (43,606) -- (5,158) (11,120)
Purchase of common stock from minority stockholders of subsidiaries (2,550) -- -- -- (584)
Other -- -- (84) (100) --
-------- -------- ------- -------- --------
Net cash provided by (used in) investing activities of continuing
operations 12,960 (43,131) (4,002) 4,182 (2,335)
Net cash (used in) provided by investing activities of discontinued
operations (145) (1,173) (649) (4) 137
-------- -------- ------- -------- --------
Net cash provided by (used in) investing activities 12,815 (44,304) (4,651) 4,178 (2,198)
-------- -------- ------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from exercise of stock options and warrants 1,774 17,771 15,202 214 1,165
Capital contributions from minority stockholders of subsidiaries 3,257 37,322 6,634 300 1,749
Capital distributions to minority shareholders of subsidiaries -- -- -- (430) --
Proceeds from sale of common stock, net of issuance costs 18,349 22,199 19,073 -- 18,361
Repayment of capital lease obligations (221) -- -- (456) --
Other 28 -- (11) --
-------- -------- ------- -------- --------
Net cash provided by (used in) financing activities 23,159 77,320 40,909 (383) 21,275
-------- -------- ------- -------- --------
Increase (decrease) in cash and cash equivalents 23,413 (1,468) 30,123 (9,830) 11,757
Cash and cash equivalents, beginning 36,163 37,631 7,508 59,451 36,163
Effect of exchange rate on cash (125) -- -- 91 --
-------- -------- ------- -------- --------
Cash and cash equivalents, ending $ 59,451 $ 36,163 $37,631 $ 49,712 $ 47,920
======== ======== ======= ======== ========
The accompanying notes are an integral part of these consolidated financial
statements.
F-7
ACACIA RESEARCH CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. DESCRIPTION OF BUSINESS
Acacia Research Corporation ("Acacia" or "we") develops, licenses and
provides products for the media technology and life science sectors.
Acacia's media technologies business, collectively referred to as, "Acacia
Media Technologies Group," owns intellectual property related to the
telecommunications field, including a television blanking system, also known as
the "V-chip," which it licenses to television manufacturers. In addition, Acacia
Media Technologies Group owns a worldwide portfolio of pioneering patents
relating to audio and video transmission and receiving systems, commonly known
as audio-on-demand and video-on-demand, used for distributing content via
various methods including computer networks, cable television systems and direct
broadcasting satellite systems. Acacia Media Technologies Group is responsible
for the development, licensing and protection of its intellectual property and
proprietary technologies. Our media technologies group continues to pursue both
licensing and strategic business alliances with leading companies in the rapidly
growing media technologies industry.
Acacia's life sciences business, collectively referred to as "Acacia Life
Sciences Group" is comprised of CombiMatrix Corporation ("CombiMatrix") and
Advanced Material Sciences, Inc. ("Advanced Material Sciences"). Our core
technology opportunity in the life sciences sector has been developed through
our majority-owned subsidiary, CombiMatrix. CombiMatrix is a life science
technology company with a proprietary system for rapid, cost competitive
creation of DNA and other compounds on a programmable semiconductor chip. This
proprietary technology has significant applications relating to genomic and
proteomic research. Our majority-owned subsidiary, Advanced Material Sciences,
holds the exclusive license for CombiMatrix's biological array processor
technology in certain fields of material sciences.
We were incorporated on January 25, 1993 under the laws of the State of
California. In December 1999, we changed our state of incorporation from
California to Delaware. Acacia owns and operates emerging corporations with
intellectual property rights, certain of which are involved in developing new or
unproven technologies. There is no assurance that any or all such technologies
will be successful, and even if successful, that the development of such
technologies can be commercialized.
Below is a summary of our most significant wholly and majority-owned
subsidiaries and our related ownership percentages on an as-converted basis:
OWNERSHIP % AS OF
3/22/02 ON AN
COMPANY NAME DESCRIPTION OF BUSINESS AS-CONVERTED BASIS
---------------------------------------- ------------------------------------------------------------------- ------------------
ACACIA MEDIA TECHNOLOGIES GROUP:
Soundview Technologies Incorporated .... A media technology company that owns intellectual property related 100.0%
to the telecommunications field, including a television blanking
system, also known as "V-chip," which it is licensing to television
manufacturers.
F-8
OWNERSHIP % AS OF
3/22/02 ON AN
COMPANY NAME DESCRIPTION OF BUSINESS AS-CONVERTED BASIS
---------------------------------------- ------------------------------------------------------------------- ------------------
Acacia Media Technologies Corporation A media technology company that owns a worldwide portfolio of 100.0%
(formerly Greenwich Information pioneering patents relating to audio and video transmission and
Technologies LLC) ...................... receiving systems, commonly known as audio-on-demand and
video-on-demand, used for distributing content via various methods
including computer networks, cable television systems and direct
broadcasting satellite systems.
ACACIA LIFE SCIENCES GROUP:
CombiMatrix Corporation ................ A life science technology company with a proprietary system for 57.5%(1)
rapid, cost competitive creation of DNA and other compounds on a
programmable semiconductor chip. This proprietary technology has
significant applications relating to genomic and proteomic
research.
Advanced Material Sciences, Inc ........ A development stage company that holds the exclusive license for 58.1%(2)
CombiMatrix's biological array processor technology in certain
fields of material science.
----------
(1) We are a party to a stockholder agreement with an officer of CombiMatrix,
which provides for (a) the collective voting of shares (representing 69.5%
of the voting interests of CombiMatrix) for the election of certain
directors to CombiMatrix's board of directors and (b) certain restrictions
on the sale or transfer of the officer's shares of common stock in
CombiMatrix.
(2) Advanced Material Sciences is 58.1% owned by us, 28.5% owned by CombiMatrix
and 13.4% owned by third-parties. We have a 74.5% economic interest in
Advanced Material Sciences by virtue of our 58.1% direct ownership interest
in Advanced Material Sciences and our 57.5% interest in CombiMatrix.
ACACIA RESEARCH CORPORATION
In January 2001, we completed an institutional private equity financing
raising gross proceeds of $19.0 million through the issuance of 1,107,274 units.
Each unit consists of one share of our common stock and one three-year callable
common stock purchase warrant. Each common stock purchase warrant entitles the
holder to purchase 1.10 shares of our common stock at a price of $19.09 per
share and is callable by us once the closing bid price of our common stock
averages $23.86 or above for 20 or more consecutive trading days on the NASDAQ
National Market System. We issued an additional 20,000 units in lieu of cash
payments for finders' fees in conjunction with the private placement.
In June 2001, our ownership interest in Soundview Technologies Incorporated
("Soundview Technologies") increased from 67% to 100%, following Soundview
Technologies' completion of a stock repurchase transaction with its former
minority stockholders. Soundview Technologies repurchased the stock of its
former minority stockholders in exchange for a cash payment and the grant to
such stockholders of the right to receive 26% of future net revenues generated
by Soundview Technologies' current patent portfolio, which includes its V-chip
patent.
On October 22, 2001, our board of directors declared a ten percent (10%)
stock dividend. The stock dividend totaling 1,777,710 shares of our common stock
was distributed on December 5, 2001 to stockholders of record as of November 21,
2001. All references to the number of shares (other than common stock issued or
outstanding on the 2000 consolidated balance sheet and 2001, 2000 and 1999
consolidated statements of stockholders' equity), per share amounts and any
other reference to shares in the consolidated financial statements and
accompanying notes to the consolidated financial statements, unless otherwise
noted, have been adjusted to reflect the stock dividend on a retroactive basis.
F-9
In November 2001, we increased our ownership interest in Acacia Media
Technologies Corporation ("Acacia Media Technologies"), formerly Greenwich
Information Technologies LLC, from 33% to 100% through the purchase of the
ownership interest of the former limited liability company's other member. In
December 2001, we converted the company from a limited liability company to a
corporation and changed the name of the company to Acacia Media Technologies.
In the third quarter of 2000, we completed a private offering of 861,638
units at $27.50 per unit for gross proceeds of approximately $23.7 million. Each
unit consists of one share of common stock and one common stock purchase warrant
entitling the holder to purchase 1.10 shares of common stock at an exercise
price $30.00 per share, subject to adjustment, expiring in three years. The
warrants are callable by Acacia once the closing bid price of Acacia's common
stock averages $36.00 or above for 20 consecutive trading days on the NASDAQ
National Market System. We issued an additional 11,000 units in lieu of cash
payments for finders' fees in conjunction with the private placement.
In the fourth quarter of 1999, we completed a private placement consisting
of the sale of units, each composed of one share of Acacia's common stock and
one-half of a common stock purchase warrant. We issued 974,771 units at an
offering price of $21.50 per unit. Approximately $21.0 million was raised from
this financing. During the first quarter of 2000, we issued a 30-day redemption
notice for these warrants. As a result, all of these warrants were exercised
prior to the redemption date with Acacia receiving proceeds of approximately
$14.8 million.
ACACIA MEDIA TECHNOLOGIES GROUP
SOUNDVIEW TECHNOLOGIES
In June 2001, Soundview Technologies repurchased the stock of the former
minority stockholders of Soundview Technologies in exchange for a cash payment
and the grant to the former stockholders of the right to receive 26% of future
net revenues generated by Soundview Technologies' current patent portfolio,
which includes its V-chip patent. As of December 31, 2001, total consideration
paid combined with amounts accrued pursuant to the stock repurchase agreements
totaled $2,767,000 ($2,550,000 paid in cash and $217,000 accrued as of December
31, 2001). Acacia Research Corporation accounts for contingent purchase
consideration as an additional cost of the acquired enterprise. As a result of
the stock repurchase transaction our ownership interest in Soundview
Technologies increased from 67% to 100%.
During 2001, Soundview Technologies executed separate settlement and/or
license agreements with Samsung Electronics, Hitachi America, Ltd., LG
Electronics, Inc., Funai Electric Co. Ltd., Daewoo Electronics Corporation of
America, Sanyo Manufacturing Corporation, Thomson Multimedia, Inc., JVC Americas
Corporation, Matsushita Electric Industrial Co., Ltd. and Orion Electric Co.,
Ltd. In addition, Soundview Technologies settled its lawsuits with Pioneer
Electronics (USA) Incorporated, an affiliate of Pioneer Corporation, and
received payments from Philips Electronics pursuant to a settlement and license
agreement signed in December 2000. Certain of these license agreements
constitute settlements of patent infringement litigation brought by Soundview
Technologies. As of December 31, 2001, we received license fee payments totaling
$25,630,000 from the settlement and license agreements and have granted
non-exclusive, retroactive and future licenses of Soundview Technologies' U.S.
Patent No. 4,554,584 to the respective television manufacturers. Certain of the
settlement and license agreements provide for future royalty payments to
Soundview Technologies. We received and recognized as revenue $2,390,000,
$10,000,000, $10,740,000 and $1,000,000 of the license fee payments during the
first, second, third and fourth quarters of 2001, respectively. License fee
payments received during 2001 totaling $1,500,000 are included in deferred
revenues pursuant to the terms of the respective agreements.
In the second quarter of 2000, Soundview Technologies announced that it
filed a federal patent infringement and antitrust lawsuit against Sony
Corporation of America, Philips Electronics North America Corporation, the
Consumer Electronics Manufacturers Association and the Electronics Industries
Alliance d/b/a Consumer Electronics Association. In its lawsuit, Soundview
Technologies alleged that Sony and Philips Television sets fitted with "V-chips"
infringe Soundview Technologies' patent and that the Consumer Electronics
Manufacturers Association had induced infringement of the patent.
F-10
ACACIA MEDIA TECHNOLOGIES
Acacia Media Technologies, formally Greenwich Information Technologies LLC,
owns a worldwide portfolio of pioneering patents relating to audio and video
transmission and receiving systems, commonly known as audio-on-demand and
video-on-demand, used for distributing content via various methods including
computer networks, cable television systems and direct broadcasting satellite
systems.
In November 2001, we increased our ownership interest in Acacia Media
Technologies from 33% to 100% through the purchase of the ownership interest of
the former limited liability company's other member. In December 2001, we
converted the company from a limited liability company to a corporation, and
changed the name of the company to Acacia Media Technologies Corporation.
ACACIA LIFE SCIENCES GROUP
COMBIMATRIX
In July 2001, CombiMatrix entered into a non-exclusive worldwide license,
supply, research and development agreement with Roche Diagnostics GmbH
("Roche"). Under the terms of the agreement, Roche will purchase, use and resell
CombiMatrix's microarray and related technologies for rapid production of
customizable biochips. Additionally, CombiMatrix and Roche will develop a
platform technology, providing a range of standardized biochips for use in
research applications. The agreement has a 15-year term and provides for minimum
payments by Roche to CombiMatrix over the first three years, including milestone
achievements, payments for products, royalties and research and development
projects. In the third and fourth quarters of 2001, CombiMatrix received
up-front and milestone payments totaling $5.3 million from Roche, which are
included in deferred revenues in the accompanying December 31, 2001 consolidated
balance sheet.
In August 2001, CombiMatrix entered into a license and supply agreement
with the National Aeronautics and Space Administration ("NASA"). The agreement
has a two-year term and provides for the license, purchase and use by the NASA
Ames Research Center of CombiMatrix's active biochips (microarrays) and related
technology to conduct biological research in terrestrial laboratories and in
space. As of December 31, 2001, CombiMatrix Corporation has received
non-refundable cash payments from NASA for their purchase of a microarray
synthesizer system as well as a license to use the technology for a 2-year
period. The existing agreement also provides for the sale of microarrays to NASA
in future periods. The NASA agreement contains customary contract provisions
regarding termination, including termination by either party in the event of a
breach of contract terms.
In October 2001, CombiMatrix formed a joint venture with Marubeni Japan,
one of Japan's leading trading companies. The joint venture, based in Tokyo,
will focus on development and licensing opportunities for CombiMatrix's biochip
technology with pharmaceutical and biotechnology companies in the Japanese
market. Marubeni made an investment of $1.0 million to acquire a ten percent
(10%) minority interest in the joint venture.
In the first quarter of 2000, CombiMatrix Corporation completed a private
equity financing raising gross proceeds of $17.5 million through the sale of
3,500,000 shares of CombiMatrix Corporation common stock. Acacia invested $10.0
million in this private placement to acquire 2,000,000 shares of CombiMatrix
Corporation common stock. The transaction was accounted for as a step
acquisition using the purchase method of accounting. The total purchase price
was allocated to the fair value of assets acquired and liabilities assumed. As a
result of the transaction, we increased our consolidated ownership interest in
CombiMatrix Corporation from 50.01% to 51.8%.
In the third quarter of 2000, Acacia Research increased its consolidated
ownership interest in CombiMatrix Corporation from 51.8% to 61.4% by acquiring
from existing stockholders of CombiMatrix Corporation 1,163,850 shares of
CombiMatrix Corporation common stock in exchange for 488,557 shares of Acacia
Research's common stock. The transaction was accounted for as a step acquisition
using the purchase method of accounting. The fair value of the Acacia Research
shares issued in the transaction was based on the quoted market price of Acacia
Research's stock averaged over a five-day period (including two days before and
after the June 28, 2000 announcement date). The total purchase price of $11.6
million was allocated to the fair value of assets acquired and
F-11
liabilities assumed, including acquired in-process research and development. The
amount attributable to goodwill was $2.9 million, which is amortized using the
straight-line method over the estimated remaining useful life of five years.
(See Note 2) The amount attributable to in-process research and development of
$2.5 million was charged to expense and is included in the consolidated
statement of operations and comprehensive loss for the year ended December 31,
2000.
In the third quarter of 2000, CombiMatrix Corporation completed a private
equity financing raising gross proceeds of $36.0 million through the sale of
4,000,000 shares of CombiMatrix Corporation common stock. Acacia invested $17.5
million in this private placement to acquire 1,944,445 shares. The transaction
was accounted for as a step acquisition using the purchase method of accounting.
As a result of the transaction, our consolidated interest in CombiMatrix
Corporation decreased from 61.4% to 58.4%, and we recognized a gain which has
been reflected in stockholder's equity as a direct increase to capital in excess
of par.
ADVANCED MATERIAL SCIENCES
In May 2001, Advanced Material Sciences completed a private equity
financing raising gross proceeds of $2.0 million through the issuance of
2,000,000 shares of common stock. Acacia invested $155,000 in this private
placement to acquire 155,000 shares. As a result of the transaction, our equity
ownership in Advanced Material Sciences decreased from 66.7% to 58.1%. We
accounted for the purchase of 155,000 shares of Advanced Material Sciences as a
step acquisition using the purchase method of accounting. The total purchase
price was allocated to the fair value of assets acquired and liabilities
assumed. As a result of the decrease in our ownership interest due to our
disproportionate purchase of additional shares in Advanced Material Sciences, we
recorded a gain reflected in the statement of stockholders' equity as a direct
increase to capital in excess of par. Advanced Material Sciences issued an
additional 29,750 shares of common stock, in lieu of cash payments, and warrants
to purchase approximately 54,000 shares of common stock, for finders' fees in
connection with the private placement. Each common stock purchase warrant
entitles the holder to purchase shares of Advanced Material Sciences common
stock at a price of $1.10 per share.
Advanced Material Sciences was formed in November 2000 and holds an
exclusive license to CombiMatrix's biological processor technology within the
field of material science. Initial investments in Advanced Material Sciences
consisted of $2.0 million from Acacia Research Corporation for the purchase of
6,000,000 shares and $1.0 million from CombiMatrix for the purchase of 4,000,000
shares.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ACCOUNTING PRINCIPLES AND FISCAL YEAR END. The consolidated financial
statements and accompanying notes are prepared on the accrual basis of
accounting in accordance with generally accepted accounting principles in the
United States of America. We have a December 31 year end.
PRINCIPLES OF CONSOLIDATION. The accompanying consolidated financial
statements include the accounts of Acacia and its wholly-owned and
majority-owned subsidiaries. Material intercompany transactions and balances
have been eliminated in consolidation. Investments in companies in which we
maintain an ownership interest of 20% to 50% or exercise significant influence
over operating and financial policies are accounted for under the equity method.
The cost method is used where we maintain ownership interests of less than 20%
and do not exercise significant influence over the investee.
REVENUE RECOGNITION. We recognize revenue in accordance with Staff
Accounting Bulletin No. 101, "Revenue Recognition in Financial Statements" ("SAB
No. 101"). License fee income is recognized as revenue when (i) persuasive
evidence of an arrangement exists, (ii) all obligations have been performed
pursuant to the terms of the license agreement, (iii) amounts are fixed or
determinable and (iv) collectibility of amounts is reasonably assured. Revenue
from government grant and contract activities is accounted for in the period the
services are performed on a percentage-of-completion method of accounting
(determined by comparing actual costs incurred to total estimated costs) when
the services have been approved by the grantor and collectibility is reasonably
assured. Each arrangement for government grant or contract activities is
accounted for separately. Typically these contracts and arrangements involve
single accounting elements. For the Department of Defense ("DOD") grant that is
currently in progress, payment milestones are achieved when interim progress
reports are prepared and delivered to
F-12
the DOD. Amounts recognized under the percentage-of-completion method are
limited to amounts due from customers based on contract or grant terms. Revenues
recognized under the percentage of completion method of accounting for
government grants and contracts were $456,000, $17,000 and $144,000 for the
years ending December 31, 2001, 2000 and 1999, respectively.
Revenue from the sale of products and services is recognized when (i)
persuasive evidence of an arrangement exists, (ii) delivery has occurred or
services have been rendered, (iii) the fees are fixed and determinable and (iv)
collectibility is reasonably assured.
Revenues from multiple-element arrangements involving license fees,
up-front payments and milestone payments, which are received or billable by us
in connection with other rights and services that represent continuing
obligations of ours, are deferred until all of the elements have been delivered
or until we have established objective and verifiable evidence of the fair value
of the undelivered elements.
Deferred revenue arises from payments received in advance of the
culmination of the earnings process. Deferred revenue expected to be recognized
within the next twelve months is classified as a current liability. At December
31, 2001, we recorded $7.5 million as deferred revenues related to payments
received under multiple-element arrangements and other advances, which will be
recognized as revenue in future periods when the applicable revenue recognition
criteria as describe above are met. Approximately $5.3 million of this amount
was from payments received from Roche by CombiMatrix for milestones achieved as
of December 31, 2001. At that time, certain elements remained undelivered.
Management expects the remaining milestones will be completed and that objective
reliable evidence of fair value for the remaining undelivered elements will
exist by the end of 2002.
CASH AND CASH EQUIVALENTS. We consider all highly liquid, short-term
investments with original maturities of three months or less when purchased to
be cash equivalents.
SHORT-TERM INVESTMENTS. Our short-term investments are held in a variety of
interest bearing instruments including high-grade corporate bonds, commercial
paper, money market accounts and other marketable securities. Investments in
securities with maturities of greater than three months and less than one year
are classified as short-term investments. Investments are classified into
categories in accordance with the provisions of Statement of Financial
Accounting Standards ("SFAS") No. 115, "Accounting for Certain Investments in
Debt and Equity Securities" ("SFAS No. 115"). Certain of our investments are
classified as available-for-sale, which are reported at fair value with related
unrealized gains and losses in the value of such securities recorded as a
separate component of comprehensive income (loss) in stockholders' equity until
realized. Certain of our investments are classified as trading securities, which
are reported at fair value. Realized and unrealized gains and losses in the
value of trading securities are included in net income (loss) in the
consolidated statements of operations and comprehensive loss.
The fair value of our investments is primarily determined by quoted market
prices. Realized and unrealized gains and losses are recorded based on the
specific identification method. For investments classified as
available-for-sale, unrealized losses that are other than temporary are
recognized in net income.
CONCENTRATION OF CREDIT RISKS. Cash and cash equivalents are invested in
deposits with certain financial institutions and may, at times, exceed federally
insured limits. We have not experienced any losses on our deposits of cash and
cash equivalents.
PROPERTY AND EQUIPMENT. Property and equipment are recorded at cost. Major
additions and improvements are capitalized. When these assets are sold or
otherwise disposed of, the asset and related depreciation are relieved, and any
gain or loss is included in income for the period of sale or disposal.
Depreciation is computed on a straight-line basis over the estimated useful
lives of the assets, ranging from three to ten years.
Certain equipment held under capital lease is included in property, plant
and equipment and amortized using the straight line method over the lease term.
The related capital lease obligation is recorded as a liability in the
consolidated balance sheet. Capital lease amortization is included in
depreciation expense in the consolidated statement of operations and
comprehensive loss.
F-13
PREPAID PUBLIC OFFERING COSTS. As of September 30, 2001, CombiMatrix
capitalized $1,353,000 of costs incurred in connection with the filing of a
registration statement with the Securities and Exchange Commission ("SEC") in
November 2000. Deferred costs totaling $918,000 are included in current assets
in our December 31, 2000 consolidated balance sheet. In the fourth quarter of
2001, all of these deferred costs were charged to operations.
ORGANIZATION COSTS. Costs of start-up activities, including organization
costs, are expensed as incurred.
MANAGEMENT FEES. Capital management fees in 1999 include asset-based and
performance-based fees earned from two domestic private investment partnerships
in which we were a general partner and two offshore investment corporations for
which we served as an investment advisor. These capital management fees were
recognized when earned in accordance with the respective partnership and
management agreements. Management fees also include income from other consulting
and management services provided by Acacia to other parties. These fees are
recognized when the related services are provided. On December 31, 1999, we
closed the Acacia Capital Management division.
PATENTS AND GOODWILL. Patents, once issued, and goodwill are amortized on
the straight-line method over their estimated remaining useful lives, ranging
from three to twenty years. Amortization charged to operations relating to
goodwill amounted to $1,078,000, $921,000 and $465,000 at December 31, 2001,
2000 and 1999, respectively. Accumulated amortization of goodwill amounted to
$3,651,000 and $1,894,000 at December 31, 2001 and 2000, respectively.
Amortization charged to operations relating to patents amounted to $1,617,000,
$1,330,000 and $1,157,000 at December 31, 2001, 2000 and 1999, respectively.
Accumulated amortization of patents amounted to $5,655,000 and $4,038,000 at
December 31, 2001 and 2000, respectively.
POTENTIAL IMPAIRMENT OF LONG-LIVED ASSETS. We review long-lived assets and
intangible assets for potential impairment when events or changes in
circumstances indicate the carrying amount of an asset may not be recoverable.
In the event the sum of the expected undiscounted future cash flows resulting
from the use of the asset is less than the carrying amount of the asset, an
impairment loss equal to the excess of the asset's carrying value over its fair
value is recorded. If an asset is determined to be impaired, the loss is
measured based on quoted market prices in active markets, if available. If
quoted market prices are not available, the estimate of fair value is based on
various valuation techniques, including a discounted value of estimated future
cash flows.
FAIR VALUE OF FINANCIAL INSTRUMENTS. The carrying value of cash and cash
equivalents, other receivables, accounts payable and accrued expenses
approximate fair value due to their short-term maturity. The carrying value of
our capital lease obligation approximates its fair value based on the current
interest rate for similar type instruments. The fair values of our investments
are primarily determined by quoted market prices.
FOREIGN CURRENCY TRANSLATION. The functional currency of our foreign entity
is the local currency. Foreign currency translation is reported pursuant to SFAS
No. 52, "Foreign Currency Translation" ("SFAS No. 52"). Assets and liabilities
recorded in foreign currencies are translated at the exchange rate on the
balance sheet date. Translation adjustments resulting from this process are
charged or credited to other comprehensive income. Revenue and expenses are
translated at average rates of exchange prevailing during the year.
STOCK-BASED COMPENSATION. Compensation cost of stock options issued to
employees is accounted for in accordance with Accounting Principles Board
("APB") Opinion No. 25, "Accounting for Stock Issued to Employees" ("APB No.
25") and related interpretations. Compensation cost attributable to such options
is recognized based on the difference, if any, between the closing market price
of the stock on the date of grant and the exercise price of the option.
Compensation cost is deferred and amortized on an accelerated basis over the
vesting period of the individual option awards using the amortization method
prescribed in Financial Accounting Standards Board ("FASB") Interpretation No.
28, "Accounting for Stock Appreciation Rights and Other Variable Stock Option or
Award Plans" ("FIN No. 28"). We have adopted the disclosure only requirements of
SFAS No. 123, "Accounting for Stock-Based Compensation" ("SFAS No. 123") with
respect to options issued to employees. Compensation cost of stock options and
warrants issued to non-employee service providers is accounted for under the
fair value method required by SFAS No. 123 and Emerging Issues Task Force Issue
No. 96-18, "Accounting for Equity Instruments That Are Issued to Other Than
Employees for Acquiring, or in Conjunction with Selling, Goods or Services."
F-14
See "ACCOUNTING CHANGES" for change in accounting policy for accrued
subsidiary employee stock-based compensation charges.
RESEARCH AND DEVELOPMENT EXPENSES. Research and development expenses
consist of costs incurred for direct and overhead-related research expenses and
are expensed as incurred. Costs to acquire technologies which are utilized in
research and development and which have no alternative future use are expensed
when incurred. Costs related to filing and pursuing patent applications are
expensed as incurred, as recoverability of such expenditures is uncertain.
Software developed for use in our products is expensed as incurred until both
(i) technological feasibility for the software has been established and (ii) all
research and development activities for the other components of the system have
been completed. We believe these criteria are met after we have received
evaluations from third-party test sites and completed any resulting
modifications to the products. Expenditures to date have been classified as
research and development expense.
INCOME TAXES. Income taxes are accounted for using an asset and liability
approach that requires the recognition of deferred tax assets and liabilities
for the expected future tax consequences of events that have been recognized in
Acacia's financial statements or tax returns. A valuation allowance is
established to reduce deferred tax assets if all, or some portion, of such
assets will more than likely not be realized.
ACCOUNTING FOR SALES OF STOCK BY A SUBSIDIARY. Gains resulting from a
subsidiary's sale of stock to third-parties at a price per share in excess of
Acacia's average carrying amount per share are generally reflected in
stockholders' equity as a direct increase to capital in excess of par or stated
value. See Note 7 for description of current year gains reflected in
stockholders' equity as a result of our subsidiaries sales of stock to
third-parties.
COMPREHENSIVE (LOSS) INCOME. Comprehensive income is the change in equity
from transactions and other events and circumstances other than those resulting
from investments by owners and distributions to owners.
SEGMENT REPORTING. We use the management approach, which designates the
internal organization that is used by management for making operating decisions
and assessing performance as the basis of Acacia's reportable segments. At
December 31, 2001, our reporting segments were modified to include Soundview
Technologies and Acacia Media Technologies in our Acacia Media Technologies
Group segment. In addition, CombiMatrix and Advanced Material Sciences comprise
our Acacia Life Sciences Group segment. Segment information has been adjusted
for all periods presented.
USE OF ESTIMATES. The preparation of financial statements in conformity
with generally accepted accounting principles in the United States of America
requires management to make estimates and assumptions that affect the reported
amount of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the consolidated financial statements and the
reported amounts of revenues and expenses during the reporting period. Actual
results could differ from these estimates.
LOSS PER SHARE. Loss per share is presented on both a basic and diluted
basis. A reconciliation of the denominator of the basic EPS computation to the
denominator of the diluted EPS computation is as follows:
2001 2000 1999
---------- ---------- ----------
Weighted Average Number of Common Shares Outstanding Used
in Computation of Basic EPS ................................. 19,259,256 16,346,099 12,649,133
Dilutive Effect of Outstanding Stock Options and Warrants (a) .. -- -- --
---------- ---------- ----------
Weighted Average Number of Common and Potential Common Shares
Outstanding Used in Computation of Diluted EPS .............. 19,259,256 16,346,099 12,649,133
========== ========== ==========
----------
(a) Potential common shares of 719,471, 1,046,072 and 940,002 at December 31,
2001, 2000 and 1999, respectively, have been excluded from the per share
calculation because the effect of their inclusion would be anti-dilutive.
RECLASSIFICATIONS. Certain immaterial reclassifications of prior year
amounts have been made to conform to the 2001 presentation.
F-15
ACCOUNTING CHANGES. Effective January 1, 2001, we changed our accounting
policy for balance sheet classification of employee stock-based compensation
resulting from awards in consolidated subsidiaries. Historically, the
consolidated financial statements have accounted for cumulative earned employee
stock-based compensation related to subsidiaries as a liability, under the
caption "accrued stock compensation." Management believes a change to reflect
these cumulative charges as minority interests is preferable as it better
reflects the underlying economics of the stock-based compensation transaction.
As a result of the change, effective January 1, 2001, minority interests has
been increased by $10.4 million, and accrued stock compensation of $10.4 million
has been decreased. The change in accounting policy does not affect previously
reported consolidated net income.
During March 1998, CombiMatrix issued $1,450,000 principal amount of 6%
unsecured subordinated convertible promissory notes due in 2001. The notes had a
contingent beneficial conversion feature with intrinsic value of $246,000. We
adopted Emerging Issues Task Force Consensus of Issues No. 00-27, "Application
of Issue No. 98-5 to Certain Convertible Instruments" ("EITF 00-27"), in the
fourth quarter of 2000. The adoption of EITF 00-27 resulted in a charge of
$246,000 in the year ended December 31, 2000 for the cumulative effect of a
change in accounting principle in accordance with APB Opinion No. 20,
"Accounting Changes."
RECENT ACCOUNTING PRONOUNCEMENTS. In June 2001, the FASB issued SFAS No.
141, "Business Combinations" ("SFAS No. 141"), and SFAS No. 142, "Goodwill and
Other Intangible Assets" ("SFAS No. 142"). SFAS No. 141 addresses financial
accounting and reporting for business combinations and supersedes APB Opinion
No. 16, "Business Combinations." Changes made by SFAS No. 141 include (1)
requiring the purchase method of accounting be used for all business
combinations initiated after June 30, 2001 and (2) established specific criteria
for the recognition of intangible assets separately from goodwill. These
provisions are effective for business combinations for which the date of
acquisition is subsequent to June 30, 2001.
SFAS No. 142 addresses how goodwill and other intangible assets should be
accounted for after they have been initially recognized in the financial
statements. This standard provides that goodwill is not subject to amortization.
Instead, it is subject to a periodic review that must occur at least annually at
a reporting unit level for possible impairment. This review is known as the
"two-step" impairment test and provides that the initial "first-step" reviews of
each reporting unit must be completed within six months of the adoption of the
standard. The "first step" of the goodwill impairment test, used to identify
potential impairment, compares the fair value of a reporting unit with its
carrying amount, including goodwill. The fair value of our two reporting units
will be estimated using the expected present value of future cash flows, based
on the characteristics of the reporting units including discount rates and
growth rates based on management's estimates. If upon completion of these
initial reviews an impairment of goodwill is indicated, the "second step" will
be performed which will compare the implied fair value of each reporting unit
goodwill with the carrying amount of goodwill. While we have yet to complete the
initial review, we expect to do so during the second quarter of 2002. The
"second step" of the valuation of the impairment, if necessary, is to occur as
soon as possible, but no later than the end of our current fiscal year. Any
impairment resulting from the "second step" would be reported as a change in
accounting principle and would require retroactive recognition to the beginning
of this fiscal year. We currently do not expect to record an impairment charge
upon completion of the impairment review; however, there can be no assurance
that at the time the review is completed a material impairment charge will not
be recorded. We have $4,627,000 of goodwill at December 31, 2001 (net of
$3,569,000 of accumulated amortization) and recorded approximately $1.1 million
of goodwill amortization expense during 2001. The only identifiable intangible
assets we have are patents of $11,855,000 at December 31, 2001 (net of
$5,655,000 of accumulated amortization), which we do not expect to be impacted
by the adoption of this standard.
We adopted SFAS No. 142 effective January 1, 2002 and ceased amortizing
goodwill on that date. (See also Note 16.) Our net income and earnings per
share, adjusted to exclude goodwill amortization expense, for the twelve months
ended December 31, 2001, 2000 and 1999, are as follows (in thousands, except for
earnings per share amounts):
F-16
FOR THE YEAR ENDED DECEMBER 31,
-------------------------------
2001 2000 1999
-------- -------- -------
Reported net loss $(22,272) $(38,959) $(8,197)
Add back: Goodwill amortization 1,078 921 465
-------- -------- -------
Adjusted net loss $(21,194) $(38,038) $(7,732)
======== ======== =======
BASIC EARNINGS PER SHARE:
Reported net loss $ (1.16) $ (2.38) $ (0.65)
Goodwill amortization $ 0.06 $ 0.06 $ 0.04
-------- -------- -------
Adjusted net loss $ (1.10) $ (2.32) $ (0.61)
======== ======== =======
DILUTED EARNINGS PER SHARE:
Reported net loss $ (1.16) $ (2.38) $ (0.65)
Goodwill amortization $ 0.06 $ 0.06 $ 0.04
-------- -------- -------
Adjusted net loss $ (1.10) $ (2.32) $ (0.61)
======== ======== =======
The gross carrying amounts and accumulated amortization related to acquired
intangible assets, all related to patents, as of December 31, 2001 and 2000, are
as follows (in thousands):
AT DECEMBER 31,
------------------
2001 2000
------- -------
Gross carrying amount - patents $17,510 $13,076
Accumulated amortization (5,655) (4,038)
------- -------
Patents, net $11,855 $ 9,038
======= =======
The estimated aggregate amortization expense for each of the five
succeeding years is as follows (in thousands):
ESTIMATED
AMORTIZATION
YEAR ENDED DECEMBER 31, EXPENSE
----------------------- ------------
2002 1,862
2003 841
2004 841
2005 841
2006 841
At December 31, 2001, all of Acacia Research's acquired intangible assets
were subject to amortization.
In August 2001, the FASB issued SFAS No. 144, "Accounting for the
Impairment or Disposal of Long-Lived Assets" ("SFAS No. 144"), which addresses
financial accounting and reporting for the impairment of long-lived assets and
for long-lived assets to be disposed of. SFAS No. 144 supersedes SFAS No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
Be Disposed Of." SFAS No. 144 also supersedes the accounting and reporting
provisions of APB Opinion No. 30, "Reporting the Results of Operations -
Reporting the Effects of Disposal of a Segment of a Business, and Extraordinary,
Unusual and Infrequently Occurring Events and Transactions," for segments of a
business to be disposed of. SFAS No. 144 also amends ARB No. 51, "Consolidated
Financial Statements," to eliminate the exception to consolidation for a
temporarily controlled subsidiary. SFAS No. 144 requires long-lived assets to be
tested for recoverability whenever events or changes in circumstances indicate
that its carrying amount may not be recoverable. In conjunction with such tests,
it may be necessary to review depreciation estimates and methods as required by
APB Opinion No. 20, "Accounting Changes," or the amortization period as required
by SFAS No. 142. We will adopt SFAS No. 144 effective January
F-17
1, 2002. We are currently assessing the impact of SFAS No. 144 on our operating
results and financial condition upon adoption.
3. SHORT-TERM INVESTMENTS
Short-term investments consists of the following at December 31, 2001 and
2000 (in thousands):
AMORTIZED FAIR
2001 COST VALUE
--------- --------
Trading securities ...................................... $ -- $ 4,372
Available-for-sale-securities:
Corporate bonds and notes .......................... 14,427 14,869
U.S. government securities ......................... 5,643 5,869
------- -------
$20,070 $25,110
======= =======
AMORTIZED FAIR
2000 COST VALUE
--------- --------
Available-for-sale-securities:
Corporate bonds and notes .......................... $37,689 $38,622
U.S. government securities ......................... 1,971 1,978
------- -------
$39,660 $40,600
======= =======
Gross unrealized gains and losses related to available-for-sale securities
were not material for 2001 and 2000.
Contractual maturities for investments in debt securities classified as
available-for-sale as of December 31, 2001 are as follows (in thousands):
FAIR
COST VALUE
------- -------
Due within one year ..................................... $ 5,103 $ 5,669
Due after one year through two years .................... 14,967 15,069
------- -------
$20,070 $20,738
======= =======
4. PROPERTY AND EQUIPMENT
Property and equipment consists of the following at December 31, 2001 and
2000 (in thousands):
2001 2000
------- ------
Machine shop and laboratory equipment ................... $ 844 $1,250
Furniture and fixtures .................................. 445 550
Computer hardware and software .......................... 1,203 1,085
Leasehold improvements .................................. 565 228
Facilities and equipment held under capital lease 3,000 --
Construction in progress ................................ 84 1,346
------- ------
6,141 4,459
Less: accumulated depreciation and amortization ........ (1,235) (732)
------- ------
$ 4,906 $3,727
======= ======
F-18
Depreciation expense was $1,174,000, $471,000 and $248,000 for the years
ended December 31, 2001, 2000 and 1999, respectively. Amortization of assets
held under capital lease was $161,000 for the year ended December 31, 2001.
5. BALANCE SHEET COMPONENTS
Accounts payable, accrued expenses and other consists of the following at
December 31, 2001 and December 31, 2000 (in thousands):
2001 2000
------ ------
Accounts payable ......................................... $ 837 $2,285
Payroll, vacation and other employee benefits ............ 1,740 711
Accrued liabilities of discontinued operations ........... 1,342 3,599
Taxes payable ............................................ 356 --
Accrued subsidiary stockholder redemption payments ....... 217 --
Other accrued liabilities ................................ 1,264 1,172
------ ------
$5,756 $7,767
====== ======
Deferred revenues consist of the following at December 31, 2001 (in
thousands):
2001
-------
Milestone and up-front payments .......................... $ 5,960
License fee payments ..................................... 1,500
-------
7,460
Less: current portion ................................... (7,088)
-------
$ 372
=======
6. INVESTMENTS
At December 31, 2000, we carried our 33% ownership interest in Acacia Media
Technologies, formerly Greenwich Information Technologies LLC, under the equity
method at a carrying value of $346,000. In November 2001, we increased our
ownership interest in Acacia Media Technologies from 33% to 100% through the
purchase of the ownership interest of the former limited liability company's
other member. In December 2001, Acacia Media Technologies was incorporated under
the laws of the State of Delaware and we changed the name from Greenwich
Information Technologies LLC to Acacia Media Technologies Corporation. The
ownership interest purchase has been accounted for as a purchase transaction in
accordance with SFAS No. 141. The excess purchase price was allocated to Acacia
Media Technologies' patent portfolio and is being amortized over the remaining
life of the respective patents, which is approximately 10 years. The results of
operations have been included in the consolidated statement of operations and
comprehensive loss from the date of acquisition. Pro forma results of operations
have not been presented because the effects of these acquisitions were not
material on either an individual or aggregate basis.
In the first quarter of 2000, Acacia acquired a 7.6% interest in Advanced
Data Exchange for $3.0 million out of a $17.3 million private placement of
"non-voting" Series B preferred stock. Advanced Data Exchange is a corporation
engaged in business-to-business Internet exchange transactions that allow
mid-sized companies to exchange its purchase orders, purchase order
acknowledgments, advance ship notices, invoices and other business documents
over the Internet with supply chain partners and emerging digital marketplaces.
Subsequent to an additional $30 million equity financing completed in the second
quarter of 2000, we currently own a 4.9% interest in Advanced Data Exchange and
have no board of directors representation. Additional rounds of financing may
further dilute our interest. We do not have the ability to control decision
making at Advanced Data Exchange.
F-19
In the fourth quarter of 2000, in connection with a review of the carrying
value of our investment portfolio, we determined that certain of our early stage
investments accounted for under the equity method and certain consolidated
subsidiaries had experienced significant losses in value that were determined to
be other than temporary. The decline in value of these investments, which were
primarily start up phase businesses, was attributed to the existence of
continuing operating losses, management's determination that the associated
business models were no longer viable and in some cases the cessation of
operations of the respective entities, and management's assessment that such
investments were not recoverable. We recorded $1,016,000 in write-offs of early
stage investments and $2,603,000 in write-offs of certain equity investments.
The investments written-off were not individually material.
7. STOCKHOLDERS' EQUITY
The authorized capital stock of Acacia consists of 60,000,000 shares of
common stock, $0.001 par value, of which 19,592,459 and 17,699,646 (as adjusted
for ten percent (10%) stock dividend distributed on December 5, 2001) shares
were issued and outstanding as of December 31, 2001 and 2000, respectively, and
20,000,000 shares of preferred stock, $0.001 par value, no shares of which are
issued or outstanding. Under the terms of Acacia's Certificate of Incorporation,
the board of directors may determine the rights, preferences and terms of our
authorized but unissued shares of preferred stock. Holders of common stock are
entitled to one vote per share on all matters to be voted on by the
stockholders, and to receive ratably such dividends, if any, as may be declared
by the board of directors out of funds legally available therefore. Upon the
liquidation, dissolution or winding up of Acacia, the holders of common stock
are entitled to share ratably in all assets of Acacia which are legally
available for distribution, after payment of all debts and other liabilities.
Holders of common stock have no preemptive, subscription, redemption or
conversion rights.
On October 22, 2001, our board of directors declared a ten percent (10%)
stock dividend. The stock dividend totaling 1,777,710 shares of our common stock
was distributed on December 5, 2001 to stockholders of record as of November 21,
2001. The fair value of the stock dividend paid, based on the market value of
our common stock on the date of declaration as adjusted for the dilutive effect
of the stock dividend declared, is reflected as a reclassification of
accumulated deficit in the amount of $21,688,000, to permanent capital,
represented by our common stock and additional paid-in capital accounts. All
references to the number of shares (other than common stock issued or
outstanding on the 2000 consolidated balance sheet and 2001, 2000 and 1999
consolidated statements of stockholders' equity), per share amounts and any
other reference to shares in the consolidated financial statements and
accompanying notes to the consolidated financial statements, unless otherwise
noted, have been adjusted to reflect the stock dividend on a retroactive basis.
In May 2001, Advanced Material Sciences completed a private equity
financing raising gross proceeds of $2.0 million through the issuance of
2,000,000 shares of common stock. Acacia invested $155,000 in this private
placement to acquire 155,000 shares. As a result of the transaction, our equity
ownership in Advanced Material Sciences decreased from 66.7% to 58.1%.
Additionally, in October 2001, a subsidiary of CombiMatrix sold 10% of its
voting common stock to a joint venture partner in Japan. The gain, totaling
$1,283,000, resulting from our subsidiaries sale of stock to third-parties at a
price per share in excess of our carrying amount per share has been reflected as
a direct increase to additional paid-in capital in consolidated stockholders'
equity.
F-20
8. PROVISIONS FOR INCOME TAXES
Provision (benefit) for income taxes consists of the following (in
thousands):
2001 2000 1999
----- ---- ----
Current:
U.S. Federal tax ................................... $ 776 $ 2 $12
State taxes ........................................ 186 4 8
----- ---- ---
962 6 20
----- ---- ---
Deferred:
U.S. Federal tax ................................... (182) (79) --
State taxes ........................................ -- -- --
----- ---- ---
(182) (79) --
----- ---- ---
$ 780 $(73) $20
===== ==== ===
The tax effects of temporary differences and carry forwards that give rise
to significant portions of deferred assets and liabilities consist of the
following at December 31, 2001 and 2000 (in thousands):
2001 2000
-------- --------
Basis of investments in affiliates .................... $ 16,789 $ 9,362
Intangibles ........................................... (3,829) (2,689)
Depreciation and amortization ......................... (4) (118)
Stock compensation .................................... 6,993 2,737
Accrued liabilities ................................... 1,061 740
Net operating loss carry forwards and credits ......... 25,084 27,257
-------- --------
46,094 37,289
Less: valuation allowance ............................. (49,923) (39,978)
-------- --------
$ (3,829) $ (2,689)
======== ========
A reconciliation of the federal statutory income tax rate and the effective
income tax rate is as follows:
2001 2000 1999
---- ---- ----
Statutory federal tax rate ............................ (34%) (34%) (34%)
State income taxes, net of federal benefit ............ (3%) (3%) (3%)
Amortization of intangible assets ..................... 2% 1% 5%
Stock compensation .................................... 7% 3% 0%
Valuation allowance ................................... 30% 33% 32%
---- ---- ----
2% 0% 0%
==== ==== ====
At December 31, 2001, we had U.S. Federal and California state income tax
net operating loss carry forwards ("NOLs") of approximately $29,680,000 and
$16,531,000, expiring between 2002 and 2021, excluding NOLs at CombiMatrix and
other subsidiaries. In addition, we had tax credit carryforwards of
approximately $102,000.
The aggregate tax NOLs at CombiMatrix and other subsidiaries are
approximately $40,225,000 and $8,999,000 for federal and state income tax
purposes, respectively, expiring between 2002 and 2021. CombiMatrix and other
subsidiaries also have tax credit carryforwards of approximately $840,000, which
begin expiring in 2011. However, the use of these NOLs and tax credits are
limited to the separate earnings of the respective subsidiaries. In addition,
ownership changes may also restrict the use of NOLs and tax credits.
As of December 31, 2001, approximately $9,507,000 of the valuation
allowance related to the tax benefits of stock option deductions included in
Acacia's NOLs. At such time as the valuation allowance is released, the benefit
will be credited to additional paid-in capital.
F-21
9. DISCONTINUED OPERATIONS
On February 13, 2001, the board of directors of Soundbreak.com Incorporated
("Soundbreak.com"), a majority-owned subsidiary of Acacia, resolved to cease
operations as of February 15, 2001 and liquidate the remaining assets and
liabilities of the subsidiary. Accordingly, we reported the results of
operations and the estimated loss on disposal of Soundbreak.com as results of
discontinued operations in the 2000 consolidated statements of operations and
comprehensive loss.
Following is summary financial information for the discontinued operations
(in thousands):
2001 2000
------- -------
Net sales ............................................. $ 4 $ --
======= =======
Loss from discontinued operations:
Before minority interests .......................... $16,437 $ 1,784
Minority interests ................................. (8,994) (1,008)
------- -------
Net ................................................ $ 7,443 $ 776
======= =======
Estimated loss on disposal:
Before minority interests .......................... $ 5,066 $ --
Minority interests ................................. (2,955) --
------- -------
Net ................................................ $ 2,111 $ --
======= =======
Discontinued operations did not have an impact on the December 31, 2001
consolidated statement of operations and comprehensive loss.
The assets and liabilities of the discontinued operations at December 31,
2001 consist primarily of $4,014,000 of cash and cash equivalents and $1,342,000
of accounts payable and accrued expenses.
The assets and liabilities of the discontinued operations at December 31,
2000 primarily consist of $6,620,000 of cash and cash equivalents, $10,000 of
management fees and other receivables, $74,000 of prepaid expenses, $164,000 of
other assets, $207,000 in property and equipment and $3,599,000 of accounts
payable and accrued expenses.
10. STOCK OPTIONS AND WARRANTS
We have three stock option plans currently in effect: the 1993 Stock Option
Plan (the "1993 Plan"), the 1996 Executive Stock Bonus Plan (the "Bonus Plan")
and the 1996 Stock Option Plan (the "1996 Plan").
Options under the 1993 plan authorize the granting of both options intended
to qualify as "incentive stock options" under Section 422A of the Internal
Revenue Code ("Incentive Stock Options") and stock options that are not intended
to so qualify ("Nonqualified Stock Options") to officers, directors, employees,
consultants and others expected to provide significant services to Acacia or its
subsidiaries. The 1993 Plan covers an aggregate of 2,000,000 shares of common
stock. We have reserved 2,000,000 shares of common stock in connection with the
1993 Plan. Under the terms of the 1993 Plan, options may be exercised upon terms
approved by Acacia's board of directors and expire at a maximum of ten years
from the date of grant. Incentive Stock Options are granted at prices equal to
or greater than fair market value at the date of grant. Nonqualified Stock
Options are generally granted at prices equal to or greater than 85% of the fair
market value at the date of grant. All of the shares under the 1993 Plan have
been awarded.
The Bonus Plan provided for a one-time grant of options to purchase an
aggregate of 720,000 shares of our common stock to directors, officers and other
key employees performing services for our affiliates and us. Under each option
agreement of the Bonus Plan, 25% of the options become exercisable on each of
the first four anniversaries of the grant date. The options granted under the
Bonus Plan expire in March 2001. All of the shares under the Bonus Plan have
been awarded.
F-22
In April 1996, the board of directors adopted the 1996 Plan, which was
approved by the stockholders in May 1996. The 1996 Plan provides for the grant
of Nonqualified Stock Options and Incentive Stock Options to key employees,
including officers of Acacia and its subsidiaries and certain other individuals.
The 1996 Plan also provides for the automatic grant of 20,000 shares of
Nonqualified Stock Options to non-employee directors upon initial election to
the board of directors and 2,000 shares thereafter on an annual basis under the
Non-Employee Director Program. These options are generally exercisable six
months to one year after grant and expire five years after grant for directors
or up to ten years after grant for key employees. In May 1998, stockholders
approved amendments to the 1996 Stock Option Plan, which increased the
authorized number of shares of common stock subject to the amended plan by
500,000 shares. In May 1999, stockholders approved amendments to the 1996 Stock
Option Plan, which increased the authorized number of shares of common stock
subject to the amended plan by 2,000,000 shares. In May 2000, stockholders
approved amendments to the 1996 Stock Option Plan, which increased the
authorized number of shares of common stock subject to the amended plan by
1,000,000 shares. At the years ended December 31, 2001 and 2000, 1,482,000 and
1,129,000 shares were available for grant, respectively.
The following is a summary of common stock option activities:
WEIGHTED
SHARES EXERCISE PRICES AVERAGE PRICE
--------- ---------------- --------------
Balance at December 31, 1998 ...... 1,829,000 $ 0.91 -- $ 7.85 $ 2.95
Options Granted ................... 799,000 $ 3.89 -- $21.59 $12.22
Options Exercised ................. (359,000) $ 0.91 -- $ 4.24 $ 2.11
Options Cancelled ................. (51,000) $ 3.28 -- $ 7.16 $ 4.72
---------
Balance at December 31, 1999 ...... 2,218,000 $ 0.91 -- $21.59 $ 6.38
Options Granted ................... 2,709,000 $14.55 -- $50.28 $27.90
Options Exercised ................. (585,000) $ 2.39 -- $14.55 $ 3.41
Options Cancelled ................. (717,000) $ 1.82 -- $46.79 $19.48
---------
Balance at December 31, 2000 ...... 3,625,000 $ 2.77 -- $50.28 $20.51
Options Granted ................... 1,390,000 $ 5.65 -- $16.08 $ 7.14
Options Exercised ................. (790,000) $ 2.77 -- $14.55 $ 3.48
Options Cancelled ................. (743,000) $ 3.18 -- $48.69 $30.48
---------
Balance at December 31, 2001 ...... 3,482,000 $ 3.47 -- $50.28 $16.94
=========
Exercisable at December 31, 2000 .. 1,181,000 $ 2.77 -- $46.79 $ 7.48
Exercisable at December 31, 2001 .. 1,315,000 $ 3.47 -- $50.28 $18.47
Options outstanding at year ended December 31, 2001 are summarized as
follows:
NUMBER OF WEIGHTED AVERAGE OUTSTANDING EXERCISABLE
OUTSTANDING REMAINING WEIGHTED AVERAGE NUMBER WEIGHTED AVERAGE
RANGE OF EXERCISE PRICES OPTIONS CONTRACTUAL LIFE EXERCISE PRICE EXERCISABLE EXERCISE PRICE
------------------------ ----------- ---------------- ---------------- ----------- ----------------
$ 0.00 - $ 5.00 ........ 103,000 0.5 $ 3.54 103,000 $ 3.54
$ 5.01 - $10.00 ........ 1,354,000 8.6 $ 6.29 373,000 $ 6.13
$10.01 - $15.00 ........ 135,000 5.2 $12.72 27,000 $13.93
$15.01 - $20.00 ........ 179,000 8.8 $17.04 103,000 $17.28
$20.01 - $25.00 ........ 761,000 7.6 $22.07 260,000 $21.97
$25.01 - $30.00 ........ 615,000 7.5 $27.55 251,000 $27.61
$30.01 - $35.00 ........ 212,000 6.8 $30.17 126,000 $30.17
$35.01 - $40.00 ........ -- -- $ -- -- $ --
$40.01 - $45.00 ........ 116,000 8.2 $41.96 68,000 $41.97
$45.01 - $52.00 ........ 7,000 8.2 $50.28 4,000 $50.28
--------- ---------
3,482,000 1,315,000
========= =========
At year ended December 31, 2001, the total number of warrants outstanding
represent rights to purchase 960,000 and 1,240,000 shares of Acacia's common
stock at a per share exercise price of $30.00 and $19.09, respectively. At
December 31, 2000, the total number of warrants outstanding represent rights to
purchase 960,000 shares of Acacia's common stock at a per share exercise price
of $30.00.
We have adopted the disclosure only requirements of SFAS No. 123 with
respect to options issued to employees. The weighted average fair value of
options granted during 2001, 2000 and 1999 for which the exercise price equals
the fair market price on the grant date was $4.19, $20.17 and $13.33,
respectively. The weighted
F-23
average fair value of options granted during 1999 for which the exercise price
is less than fair market value on grant date was $16.70. There were no options
granted during 2001 or 2000 with exercise price less than the market value.
As of December 31, 2001, CombiMatrix had a total of 3,534,000 shares of
options and warrants outstanding, of which, 1,798,000 shares are exercisable. As
of December 31, 2000, CombiMatrix had a total of 4,539,000 shares of options and
warrants outstanding, of which 1,062,000 shares are exercisable. As of December
31, 1999, CombiMatrix had a total of 798,000 shares of options and warrants
outstanding, of which 444,000 shares are exercisable.
Had we accounted for stock compensation expense related to stock options
issued to employees in accordance with SFAS No. 123, our pro forma loss from
continuing operations and loss per share would have been as follows:
2001 2000 1999
------------ ------------ -----------
Loss from continuing operations as reported .................... $(22,272,000) $(29,159,000) $(7,421,000)
Loss from continuing operations, pro forma ..................... $(30,806,000) $(37,671,000) $(8,505,000)
Basic loss per share from continuing operations as reported .... $ (1.16) $ (1.78) $ (0.59)
Basic loss per share from continuing operations, pro forma ..... $ (1.60) $ (2.31) $ (0.67)
Diluted loss per share from continuing operations as reported .. $ (1.16) $ (1.78) $ (0.59)
Diluted loss per share from continuing operations, pro forma ... $ (1.60) $ (2.31) $ (0.67)
The fair value of the options was determined using the Black-Scholes
option-pricing model, assuming weighted average risk free annual interest of
4.52%, 6.31% and 5.79% in 2001, 2000 and 1999, respectively, volatility of
approximately 75%, with expected lives of approximately four years and no
expected dividends.
11. DEFERRED NON-CASH STOCK COMPENSATION CHARGES
During the year ended December 31, 2000, our majority-owned subsidiary,
CombiMatrix, recorded deferred non-cash stock compensation charges aggregating
approximately $53.8 million in connection with the granting of stock options.
Pursuant to Acacia's policy, the stock options were granted at exercise prices
equal to the fair value of the underlying CombiMatrix stock on the date of grant
as determined by Acacia. However, such exercise prices were subsequently
determined to be below fair value due to a substantial step-up in the fair value
of CombiMatrix pursuant to a valuation provided by an investment banker in
contemplation of a potential CombiMatrix initial public offering in 2000. In
connection with the proposed CombiMatrix initial public offering and pursuant to
SEC rules and guidelines, we were required to reassess the value of stock
options issued during the one-year period preceding the potential initial public
offering and utilize the stepped-up fair value provided by the investment banker
for purposes of determining whether such stock option issuances were
compensatory, resulting in the calculation of the $53.8 million in deferred
non-cash stock compensation charges in 2000. Deferred non-cash stock
compensation charges are being amortized by CombiMatrix over the respective
option grant vesting periods, which range from one to four years. The table
below reflects the gross deferred non-cash stock compensation charges recorded
by CombiMatrix related to stock option grants, the amortization of deferred
non-cash stock compensation for 2001 and 2000, and the impact of certain other
CombiMatrix stock option transactions during 2001, as follows (in thousands):
Gross CombiMatrix deferred non-cash stock compensation charges .............................. $ 53,773
Less amounts amortized to date and other items:
Amortization through December 31, 2000 ...................................................... (9,709)
Deferred non-cash stock compensation charges related to 2001 stock option grants ............ 729
Amortization for the year ended December 31, 2001 (net of $4,698,000 of amortization reversal
related to forfeitures of certain unvested options and other) ............................ (18,807)
Forfeitures of certain unvested options (results in a net reduction in deferred stock
compensation to be amortized in future periods) .......................................... (13,220)
--------
Remaining CombiMatrix deferred non-cash stock compensation as of December 31, 2001 to be
amortized in subsequent periods .......................................................... $ 12,766
========
During the third and fourth quarters of 2001, certain CombiMatrix unvested
stock options were forfeited. Pursuant to the provisions of APB No. 25 and
related interpretations, the reversal of previously recognized non-cash stock
compensation expense on forfeited unvested stock options, in the amount of
$4,698,000, has been reflected in
F-24
the consolidated statements of operations and comprehensive loss as a reduction
in 2001 non-cash stock compensation expense. In addition, the forfeiture of
certain unvested options during 2001 results in a reduction of the remaining
deferred non-cash stock compensation expense scheduled to be amortized in future
periods.
The remaining deferred non-cash stock compensation balance as of December
31, 2001 related to stock options issued by CombiMatrix represents the future
non-cash deferred stock compensation expense that will be reflected in our
consolidated statements of operations and comprehensive loss as non-cash stock
compensation charges over the next twelve quarters from January 1, 2002 through
December 31, 2004 as follows (in thousands):
YEAR FIRST QUARTER SECOND QUARTER THIRD QUARTER FOURTH QUARTER TOTAL
------------ ------------- -------------- ------------- -------------- -------
2002 ....... $2,273 $2,311 $2,212 $1,276 $ 8,072
2003 ....... 1,036 1,041 997 510 3,584
2004 ....... 366 360 329 55 1,110
-------
$12,766
=======
Non-cash deferred stock compensation expense scheduled to be recognized in
future periods reflected above may be impacted by certain subsequent stock
option transactions including modification of terms, cancellations, forfeitures
and other activity.
12. COMMITMENTS AND CONTINGENCIES
SALE AND LEASEBACK ARRANGEMENT
In September 2001, CombiMatrix entered into a sale and leaseback
arrangement with a bank, providing up to $7,000,000 in financing for equipment
and other capital purchases. Pursuant to the terms of the agreement, certain
equipment and leasehold improvements, totaling $2,557,000 in net book value were
sold to the bank at a purchase price of $3,000,000, resulting in a deferred gain
on the sale of assets of $443,000. The deferred gain is being amortized over 4
years, the term of the related lease arrangement. In addition, CombiMatrix
entered into a capital lease arrangement to lease the fixed assets from the
bank. The capital lease agreement provides CombiMatrix with the option to
purchase the equipment for a nominal amount at the end of the lease term, which
expires in September 2004.
Future minimum lease payments under scheduled capital leases that have
initial or remaining non-cancelable terms in excess of one year are as follows
(in thousands):
YEAR
----
2002 ................................................................. $1,141
2003 ................................................................. 1,141
2004 ................................................................. 855
------
Total minimum payments ............................................... 3,137
Less: amount representing interest ................................... (358)
------
Obligations under capital lease ...................................... 2,779
Less: current portion ................................................ (934)
------
$1,845
======
F-25
OPERATING LEASES
We lease certain office furniture and equipment and laboratory and office
space under various operating lease agreements expiring over the next 7 years.
Minimum annual rental commitments on operating leases of continuing operations
having initial or remaining non-cancelable lease terms in excess of one year are
as follows (in thousands):
YEAR
----
2002 .............................................. $ 1,642
2003 .............................................. 1,894
2004 .............................................. 1,650
2005 .............................................. 1,721
2006 .............................................. 1,735
Thereafter......................................... 3,312
-------
Total minimum lease payments....................... $11,954
=======
Rent expenses of continuing operations at year ended December 31, 2001,
2000 and 1999 approximated $1,979,289, $1,032,000 and $431,000, respectively.
LITIGATION
On November 28, 2000, Nanogen, Inc. ("Nanogen") filed suit against
CombiMatrix and one of its principal stockholders, who is also a member of
CombiMatrix's board of directors. Nanogen alleged breach of contract, trade
secret misappropriation and that United States Patent No. 6,093,302 and other
proprietary information belonging to CombiMatrix are instead the property of
Nanogen. The litigation is in early stages, and CombiMatrix cannot predict its
outcome. While CombiMatrix believes it has strong defenses to Nanogen's claims,
if Nanogen were to prevail in its suit against CombiMatrix and obtain the
injunction and monetary relief that is being sought, CombiMatrix could incur
significant financial liabilities that would materially affect our consolidated
financial condition and results of operations.
Acacia is subject to other claims and legal actions that arise in the
ordinary course of business. Management believes that the ultimate liability
with respect to these claims and legal actions, if any, will not have a material
effect on our financial position, results of operations or cash flows.
13. SEGMENT INFORMATION
Acacia has two reportable segments as follows:
ACACIA MEDIA TECHNOLOGIES GROUP - Acacia Media Technologies Group owns
intellectual property related to the telecommunications field, including a
television blanking system, also known as the "V-chip," which it licenses to
television manufacturers. In addition, our media technologies group owns a
worldwide portfolio of pioneering patents relating to audio and video
transmission and receiving systems, commonly known as audio-on-demand and
video-on-demand, used for distributing content via various methods including
computer networks, cable television systems and direct broadcasting satellite
systems.
ACACIA LIFE SCIENCES GROUP - CombiMatrix is developing a proprietary
biochip array processor system that integrates semiconductor technology with new
developments in biotechnology and chemistry. Our majority-owned subsidiary,
Advanced Material Sciences, holds the exclusive license for CombiMatrix's
biological array processor technology in certain fields of material sciences.
We evaluate segment performances based on revenue earned and cost versus
earnings potential of future completed products or services. Material
intercompany transactions and transfers have been eliminated in consolidation.
The accounting policies of the segments are the same as those described in the
summary of significant accounting policies. Corporate and other includes
corporate costs, certain assets and liabilities and other
F-26
investment activities, which are included in our consolidated financial
statements but are not allocated to the reportable segments.
The table below presents information about our reportable segments in
continuing operations for the years ended December 31, 2001, 2000 and 1999 (in
thousands):
ACACIA MEDIA ACACIA LIFE CORPORATE AND
2001 TECHNOLOGIES GROUP SCIENCES GROUP OTHER TOTAL
------------------ -------------- ------------- --------
Revenue .......................................... $ 24,130 $ 456 $ 50 $ 24,636
Amortization of patents and goodwill ............. 49 -- 2,646 2,695
Other income ..................................... -- -- 77 77
Interest income .................................. 137 2,120 1,505 3,762
Interest expense ................................. -- 65 -- 65
Realized gains on investments .................... -- -- 350 350
Unrealized gains on investments .................. -- -- 237 237
Equity in losses of affiliate .................... -- -- 195 195
Loss (income) from continuing operations before
operations before minority interests and taxes (12,311) 44,416 6,927 39,032
Non-cash stock compensation charges .............. -- 19,963 856 20,819
Segment assets ................................... 10,339 40,161 56,168 106,668
Investments in affiliate, at cost ................ -- -- 3,000 3,000
Purchase of property and equipment 7 3,756 12 3,775
ACACIA MEDIA ACACIA LIFE CORPORATE AND
2000 TECHNOLOGIES GROUP SCIENCES GROUP OTHER TOTAL
------------------ -------------- ------------- --------
Revenue .......................................... $ -- $ 17 $ 40 $ 57
Amortization of patents and goodwill ............. 15 -- 2,236 2,251
Other income ..................................... -- -- 28 28
Interest income .................................. -- 1,661 1,425 3,086
Equity in losses of affiliates ................... -- -- 1,746 1,746
Loss from continuing operations before minority
interests and taxes .......................... 335 19,045 19,018 38,398
Non-cash stock compensation charges .............. -- 10,205 499 10,704
Segment assets ................................... 146 52,173 39,121 91,440
Investments in affiliate, at equity .............. -- -- 346 346
Investments in affiliate, at cost ................ -- -- 3,000 3,000
Purchase of property and equipment 13 2,921 459 3,393
ACACIA MEDIA ACACIA LIFE CORPORATE AND
1999 TECHNOLOGIES GROUP SCIENCES GROUP OTHER TOTAL
------------------ -------------- ------------- --------
Revenue .......................................... $ -- $ 144 $ 122 $ 266
Amortization of patents and goodwill ............. 14 -- 1,608 1,622
Interest income .................................. -- 40 293 333
Interest income .................................. -- 253 1 254
Equity in losses of affiliates ................... -- -- 1,121 1,121
Loss from continuing operations before minority
interests and taxes .......................... 240 2,507 5,875 8,622
Non-cash stock compensation charges .............. -- 19 127 146
Segment assets ................................... 150 1,908 43,396 45,454
Investments in affiliate, at equity .............. -- -- 4,636 4,636
Purchase of property and equipment -- 85 156 241
Segment information has been restated to exclude Soundbreak.com for the
years ended December 31, 2001, 2000 and 1999. See Note 9 to consolidated
financial statements.
F-27
14. SUBSEQUENT EVENTS
In February 2002, CombiMatrix, a majority-owned subsidiary, was awarded a
Phase I National Institutes of Health grant for the development of its protein
biochip technology. The title of the grant is "Self-Assembling Protein
Microchips." This grant is in addition to a three-year Phase I and a Phase II
SBIR Grant from the U.S. Department of Defense for the development of
multiplexed chip based assays for chemical and biological warfare agent
detection.
In February 2002, in conjunction with the relocation of our corporate
headquarters, we entered into a non-cancelable lease agreement to lease
approximately 7,143 square feet of office space in Newport Beach, California
through February 2007. Minimum annual rental commitments under this operating
lease are $255,000 in 2002; $286,000 in 2003; $295,000 in 2004; $303,000 in
2005; $312,000 in 2006; and $39,000, thereafter.
In February 2002, we executed a sublease agreement, expiring in November
2003, to sublet the Pasadena, California office space. In 2002 and 2003, rent
expense will be offset by $142,399 and $154,418 respectively, related to rental
payments due pursuant to the terms of the sublease agreement.
On March 20, 2002, we announced that our board of directors approved a plan
to divide our common stock into two new classes - new "CombiMatrix" common
stock, that would reflect the performance of our CombiMatrix subsidiary, and new
"Acacia Technologies" common stock, that would reflect the performance of our
media technology businesses, including Soundview Technologies and Acacia Media
Technologies. The plan will be submitted to our stockholders for approval. If
the recapitalization proposal were approved, our stockholders would receive
shares of both of the new classes of stock in exchange for existing Acacia
shares. The new share classes are intended to be separately listed on the NASDAQ
National Market System.
We also announced that our board of directors and CombiMatrix's board of
directors have approved an agreement for Acacia to acquire the minority
stockholder interests in CombiMatrix. The proposed acquisition would be
accomplished through a merger in which the minority stockholders of CombiMatrix
would receive shares of the new "CombiMatrix" common stock, in exchange for
their existing shares. The proposed transaction will be submitted to the
stockholders of Acacia and CombiMatrix for approval.
The proposed recapitalization and merger are subject to several important
conditions, including receipt of stockholder approval, receipt of satisfactory
tax and accounting opinions, approval of the proposed merger by a special
committee of the CombiMatrix board of directors, receipt of a fairness opinion,
approval for listing of both of the new shares on the NASDAQ National Market and
other customary conditions. We expect to present these proposals to our
stockholders for approval at a special meeting.
15. SUPPLEMENTAL CASH FLOW INFORMATION (IN THOUSANDS)
FOR THE YEARS ENDED DECEMBER 31,
--------------------------------
2001 2000 1999
------- ------- ------
Supplemental disclosures of cash flow information:
Cash paid for interest .................................................. $ 42 $ 79 $ 78
Cash paid for income taxes .............................................. 597 -- 7
Supplemental schedule of non-cash investing and financing activities:
Issuance of common stock for additional equity in consolidated
subsidiary and affiliates ............................................ -- 11,634 288
Liabilities assumed in acquisition of minority ownership interest in
subsidiary ........................................................... 200 -- --
Increase in minority interests due to conversion of subsidiary notes
payable .............................................................. -- -- 1,400
Fixed assets purchased with accounts payable ............................ -- 917 --
Purchase of equipment under capital lease agreement ..................... (3,000) -- --
Capital lease obligation incurred ....................................... 3,000 -- --
Accrued payments for purchase of common stock from former minority
stockholders of subsidiary ........................................... 217 -- --
F-28
16. INTERIM FINANCIAL INFORMATION (UNAUDITED)
UNAUDITED INTERIM INFORMATION
The unaudited Acacia Research Corporation condensed consolidated financial
statements as of June 30, 2002, and for the three and six month periods ended
June 30, 2002 and 2001, have been prepared in accordance with generally accepted
accounting principles for interim financial information and with the
instructions to Form 10-Q and Rule 10-01 of Regulation S-X. Accordingly, certain
information and footnotes required by generally accepted accounting principles
in annual financial statements are not included herein. These interim condensed
consolidated financial statements should be read in conjunction with the Acacia
Research Corporation consolidated financial statements and notes thereto for the
year ended December 31, 2001.
The unaudited interim Acacia Research Corporation condensed consolidated
financial statements include all adjustments of a normal recurring nature which,
in the opinion of management, are necessary for a fair presentation of our
financial position as of June 30, 2002, the results of our operations for the
three and six months ended June 30, 2002 and 2001, our cash flows for the six
months ended June 30, 2002 and 2001 and our stockholders' equity for the six
months ended June 30, 2002. The results of operations for the three and six
months ended June 30, 2002 are not necessarily indicative of the results to be
expected for the entire year.
LOSS PER SHARE
Loss per share is presented on both a basic and diluted basis. A
reconciliation of the denominator of the basic loss per share computation to the
denominator of the diluted loss per share computation is as follows:
THREE MONTHS ENDED SIX MONTHS ENDED
----------------------------- -----------------------------
JUNE 30, 2002 JUNE 30, 2001 JUNE 30, 2002 JUNE 30, 2001
------------- ------------- ------------- -------------
Weighted Average Number of Common Shares
Used in Computation of Basic EPS 19,634,549 19,503,645 19,622,363 19,260,094
Dilutive Effect of Outstanding Stock Options and
Warrants (a) -- -- -- --
---------- ---------- ---------- ----------
Weighted Average Number of Common and
Potential Shares Outstanding Used in
Computation of Diluted EPS 19,634,549 19,503,645 19,622,363 19,260,094
========== ========== ========== ==========
----------
(a) Potential common shares of 444,875 and 163,882 during the three months
ended June 30, 2002 and 2001, respectively, have been excluded from the per
share calculation because the effect of their inclusion would be
anti-dilutive. Potential common shares of 536,154 and 671,090 during the
six months ended June 30, 2002 and 2001, respectively, have been excluded
from the per share calculation because the effect of their inclusion would
be anti-dilutive.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 2001, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 141, "Business
Combinations" ("SFAS No. 141"), and SFAS No. 142, "Goodwill and Other Intangible
Assets" ("SFAS No. 142"). SFAS No. 141 addresses financial accounting and
reporting for business combinations and supersedes Accounting Principles Board
("APB") Opinion No. 16, "Business Combinations." Changes made by SFAS No. 141
include (1) requiring the purchase method of accounting be used for all business
combinations initiated after June 30, 2001 and (2) establishing specific
criteria for the recognition of intangible assets separately from goodwill.
These provisions are effective for business combinations for which the date of
acquisition is subsequent to June 30, 2001.
We adopted SFAS No. 142 effective January 1, 2002 and ceased amortizing
goodwill on that date. SFAS No. 142 addresses how goodwill and other intangible
assets should be accounted for after they have been initially recognized in the
financial statements. This standard provides that goodwill is not subject to
amortization. Instead, it is subject to a periodic review that must occur at
least annually at a reporting unit level for possible impairment. This review is
known as the "two-step" impairment test and provides that the initial
"first-step" reviews of each reporting unit must be completed within six months
of the adoption of the standard. The "first-step" of the goodwill
F-29
impairment test, used to identify potential impairment, compares the fair value
of each reporting unit with its carrying amount, including goodwill. If upon
completion of these initial reviews an impairment of goodwill is indicated, the
"second-step" is required to be performed, which will compare the implied fair
value of each reporting unit goodwill with the carrying amount of goodwill. In
connection with the adoption of SFAS No. 142, we performed a transitional
goodwill impairment assessment and determined that there was no impairment of
goodwill. The fair value of our two reporting units was estimated using a
discounted cash flow analysis. There can be no assurance that a future goodwill
impairment test will not result in a charge to earnings.
The Acacia Media Technologies Group had $1,776,000 of goodwill at June 30,
2002 and December 31, 2001 (net of $2,258,000 of accumulated amortization) and
recorded approximately $45,000 and $89,000 of goodwill amortization expense
during the three and six months ended June 30, 2001, respectively. The Acacia
Life Sciences Group had $2,851,000 of goodwill at June 30, 2002 and December 31,
2001 (net of $1,311,000 of accumulated amortization) and recorded approximately
$203,000 and $402,000 of goodwill amortization expense during the three and six
months ended June 30, 2001, respectively.
Our net loss and loss per share, adjusted to exclude goodwill amortization
expense, for the three and six months ended June 30, 2002 and 2001 are as
follows (in thousands, except earnings per share amounts):
THREE MONTHS ENDED SIX MONTHS ENDED
------------------- -------------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30,
2002 2001 2002 2001
-------- -------- -------- --------
Reported net loss $(9,701) $(4,772) $(16,127) $(14,251)
Add back: goodwill amortization -- 248 -- 491
------- ------- -------- --------
Adjusted net loss $(9,701) $(4,524) $(16,127) $(13,760)
======= ======= ======== ========
LOSS PER SHARE (BASIC AND DILUTED):
Reported net loss $ (0.49) $ (0.25) $ (0.82) $ (0.74)
Goodwill amortization -- 0.01 -- 0.03
------- ------- -------- --------
Adjusted net loss $ (0.49) $ (0.24) $ (0.82) $ (0.71)
======= ======= ======== ========
Acacia's only identifiable intangible assets are patents totaling
$10,857,000 and $11,855,000 at June 30, 2002 and December 31, 2001 (net of
$6,753,000 and $5,655,000 of accumulated amortization, respectively). The gross
carrying amounts and accumulated amortization related to acquired intangible
assets, all related to patents, by segment, as of June 30, 2002 and December 31,
2001 are as follows (in thousands):
ACACIA MEDIA TECHNOLOGIES GROUP LIFE SCIENCES GROUP
------------------------------- -----------------------------
AT JUNE 30, AT DECEMBER 31, AT JUNE 30, AT DECEMBER 31,
2002 2001 2002 2001
----------- --------------- ----------- ---------------
Gross carrying amount - patents $10,798 $10,698 $6,812 $6,812
Accumulated amortization (6,072) (5,144) (681) (511)
------- ------- ------ ------
Patents, net $ 4,726 $ 5,554 $6,131 $6,301
======= ======= ====== ======
Aggregate patent amortization expense was $564,000 ($465,000 and $99,000
for the Acacia Technologies Group and the Acacia Life Sciences Group,
respectively) and $390,000 ($291,000 and $99,000 for the Acacia Technologies
Group and the Acacia Life Sciences Group, respectively) for the three months
ended June 30, 2002 and 2001, respectively. Aggregate patent amortization
expense was $1,128,000 ($930,000 and $198,000 for the Acacia Technologies Group
and the Acacia Life Sciences Group, respectively) and $780,000 ($582,000 and
$198,000 for the Acacia Technologies Group and the Acacia Life Sciences Group,
respectively) for the six months ended June 30, 2002 and 2001, respectively.
F-30
The estimated aggregate amortization expense for the years ended December
31, 2002 through 2006 is as follows (in thousands):
ESTIMATED
YEAR ENDED AMORTIZATION
DECEMBER 31, EXPENSE
------------ ------------
2002 1,862
2003 841
2004 841
2005 841
2006 841
At June 30, 2002 and December 31, 2001, all of our acquired intangible
assets were subject to amortization.
On January 1, 2002, we adopted SFAS No. 144, "Accounting for the Impairment
or Disposal of Long-Lived Assets" ("SFAS No. 144"), which addresses financial
accounting and reporting for the impairment of long-lived assets and for
long-lived assets to be disposed of. SFAS No. 144 supersedes SFAS No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
Be Disposed Of." SFAS No. 144 also supersedes the accounting and reporting
provisions of APB Opinion No. 30, "Reporting the Results of Operations -
Reporting the Effects of Disposal of a Segment of a Business, and Extraordinary,
Unusual and Infrequently Occurring Events and Transactions," for segments of a
business to be disposed of. SFAS No. 144 also amends Accounting Research
Bulletin No. 51, "Consolidated Financial Statements," to eliminate the exception
to consolidation for a temporarily controlled subsidiary. SFAS No. 144 requires
long-lived assets to be tested for recoverability whenever events or changes in
circumstances indicate that its carrying amount may not be recoverable. In
conjunction with such tests, it may be necessary to review depreciation
estimates and methods as required by APB Opinion No. 20, "Accounting Changes,"
or the amortization period as required by SFAS No. 142. The adoption of SFAS No.
144 did not have a material effect on our consolidated results of operations or
financial position.
In April 2002, the FASB issued SFAS No. 145, "Rescission of FASB Statements
No. 4, 44 and 64, Amendment of FASB Statement No. 13, and Technical
Corrections," ("SFAS No. 145"), which is effective for transactions occurring
after May 15, 2002. SFAS No. 145 rescinds SFAS No. 4 and SFAS No. 64, which
addressed the accounting for gains and losses from extinguishment of debt. SFAS
No. 44 set forth industry-specific transitional guidance that did not apply to
us. SFAS No. 145 amends SFAS No. 13 to require that certain lease modifications
that have economic effects similar to sale-leaseback transactions be accounted
for in the same manner as sale-leaseback transactions. SFAS No. 145 also makes
technical corrections to certain existing pronouncements that are not
substantive in nature. We do not expect the adoption of SFAS No. 145 to have a
significant impact on our financial position or results of operations.
In June 2002, the FASB issued SFAS No. 146, "Accounting for Costs
Associated with Exit or Disposal Activities" ("SFAS No. 146"). SFAS No. 146
nullifies Emerging Issues Task Force ("EITF") Issue No. 94-3, "Liability
Recognition for Certain Employee Termination Benefits and Other Costs to Exit an
Activity," under which a liability for an exit cost was recognized at the date
of an entity's commitment to an exit plan. SFAS No. 146 requires that a
liability for a cost associated with an exit or disposal activity be recognized
at fair value when the liability is incurred. The provisions of this statement
are effective for exit or disposal activities that are initiated after December
31, 2002. We do not expect the adoption of SFAS No. 146 to have a significant
impact on our financial position or results of operations.
INVESTMENTS IN CONSOLIDATED SUBSIDIARIES
On April 25, 2002, our majority-owned subsidiary, CombiMatrix, purchased
our interest in Advanced Material Sciences. CombiMatrix issued 180,982 shares of
its common stock in exchange for our 58% interest in Advanced Material Sciences.
As a result of the sale of our interest in Advanced Material Sciences,
CombiMatrix currently owns 87% of Advanced Material Sciences and the remaining
interests are owned by unaffiliated entities.
F-31
The purchase was accounted for pursuant to APB Opinion No. 16, "Business
Combinations," and related interpretations and EITF 90-5, "Exchanges of
Ownership Interests between Entities under Common Control." Accordingly, the
transaction was accounted for using Acacia's basis in the net assets of Advanced
Material Sciences and as a result, Acacia's consolidated financial statements
continue to reflect the assets and liabilities of Advanced Material Sciences at
historical cost.
SEGMENT INFORMATION
Acacia has two reportable segments as follows:
Acacia Media Technologies Group - Acacia Media Technologies Group owns
intellectual property related to the telecommunications field, including a
television blanking system, also known as the "V-chip," which it licenses to
television manufacturers. In addition, our media technologies group owns a
worldwide portfolio of pioneering patents relating to audio and video
transmission and receiving systems, commonly known as audio-on-demand and
video-on-demand, used for distributing content via various methods including
computer networks, cable television systems and direct broadcasting satellite
systems.
Acacia Life Sciences Group - Acacia Life Science Group includes our
majority-owned subsidiary, CombiMatrix, which is developing a proprietary
biochip array processor system that integrates semiconductor technology with new
developments in biotechnology and chemistry. CombiMatrix's majority-owned
subsidiary, Advanced Material Sciences, holds the exclusive license for
CombiMatrix's biological array processor technology in certain fields of
material sciences (see Note 4).
We evaluate segment performances based on revenue earned and cost versus
earnings potential of future completed products or services. Material
intercompany transactions and transfers have been eliminated in consolidation.
The accounting policies of the segments are the same as those described in
our Annual Report on Form 10-K. Corporate and other includes corporate costs,
certain assets and liabilities and other investment activities (including
certain intangibles recorded in connection with the acquisition of various
ownership interests in our subsidiaries), which are included in our consolidated
financial statements but are not allocated to the reportable segments.
We use the management approach, which designates the internal organization
that is used by management for making operating decisions and assessing
performance as the basis of our reportable segments. At December 31, 2001, our
reporting segments were adjusted to include our wholly owned subsidiaries
Soundview Technologies Incorporated ("Soundview Technologies") and Acacia Media
Technologies Corporation, in our Acacia Media Technologies Group segment. In
addition, CombiMatrix and its subsidiaries comprise our Acacia Life Sciences
Group segment. Segment information has been adjusted for all periods presented.
The table below presents information about our reportable segments in
continuing operations for the three months ended June 30, 2002 and 2001:
ACACIA MEDIA ACACIA LIFE
TECHNOLOGIES SCIENCES CORPORATE
THREE MONTHS ENDED JUNE 30, 2002 GROUP GROUP AND OTHER TOTAL
--------------------------------------------------------------- ------------ ----------- ----------- -----------
Revenue $ -- $ 438,000 $ -- $ 438,000
Amortization of patents 19,000 -- 545,000 564,000
Other income 5,000 -- 29,000 34,000
Interest income 6,000 143,000 144,000 293,000
Interest expense -- 56,000 1,000 57,000
Realized losses on investments -- -- 930,000 930,000
Unrealized losses on investments -- -- 156,000 156,000
Loss from operations before income taxes and minority interests 583,000 9,432,000 3,865,000 13,880,000
Non-cash stock compensation charges -- 2,135,000 8,000 2,143,000
Segment assets 10,146,000 28,721,000 50,293,000 89,160,000
Investment in affiliate, at cost -- -- 3,000,000 3,000,000
Purchase of property and equipment -- 289,000 19,000 308,000
F-32
ACACIA ACACIA
MEDIA LIFE
TECHNOLOGIES SCIENCES CORPORATE
THREE MONTHS ENDED JUNE 30, 2001 GROUP GROUP AND OTHER TOTAL
------------------------------------------------------------------------ ------------ ----------- ----------- ------------
Revenue $10,000,000 $ 91,000 $ -- $ 10,091,000
Amortization of patents and goodwill 5,000 -- 633,000 638,000
Other income -- -- 57,000 57,000
Interest income 32,000 559,000 438,000 1,029,000
Equity in losses of affiliate -- -- 55,000 55,000
(Income) loss from operations before income taxes and minority interests (5,055,000) 12,589,000 1,372,000 8,906,000
Non-cash stock compensation charges -- 7,177,000 12,000 7,189,000
Segment assets 6,326,000 44,000,000 54,977,000 105,303,000
Investment in affiliate, at equity -- -- 235,000 235,000
Investment in affiliate, at cost -- -- 3,000,000 3,000,000
Purchase of property and equipment 2,000 1,083,000 -- 1,085,000
The table below presents information about our reportable segments in
continuing operations for the six months ended June 30, 2002 and 2001:
ACACIA ACACIA
MEDIA LIFE
TECHNOLOGIES SCIENCES CORPORATE
SIX MONTHS ENDED JUNE 30, 2002 GROUP GROUP AND OTHER TOTAL
------------------------------------------------------------------------ ------------ ----------- ----------- -----------
Revenue $ -- $ 687,000 $ -- $ 687,000
Amortization of patents 39,000 -- 1,089,000 1,128,000
Other income 5,000 -- 107,000 112,000
Interest income 14,000 393,000 293,000 700,000
Interest expense -- 115,000 6,000 121,000
Realized losses on investments -- -- 1,483,000 1,483,000
Unrealized losses on investments -- -- 477,000 477,000
Loss from operations before income taxes and minority interests 956,000 15,083,000 6,771,000 22,810,000
Non-cash stock compensation charges -- 3,547,000 19,000 3,566,000
Segment assets 10,146,000 28,721,000 50,293,000 89,160,000
Investment in affiliate, at cost -- -- 3,000,000 3,000,000
Purchase of property and equipment -- 467,000 73,000 540,000
ACACIA ACACIA
MEDIA LIFE
TECHNOLOGIES SCIENCES CORPORATE
SIX MONTHS ENDED JUNE 30, 2002 GROUP GROUP AND OTHER TOTAL
------------------------------------------------------------------------ ------------ ----------- ----------- ------------
Revenue $12,390,000 $ 274,000 $ 50,000 $ 12,714,000
Amortization of patents and goodwill 10,000 -- 1,261,000 1,271,000
Other income -- -- 61,000 61,000
Interest income 35,000 1,292,000 897,000 2,224,000
Equity in losses of affiliate -- -- 110,000 110,000
(Income) loss from operations before income taxes and minority interests (6,121,000) 25,586,000 4,098,000 23,563,000
Non-cash stock compensation charges -- 14,775,000 833,000 15,608,000
Segment assets 6,326,000 44,000,000 54,977,000 105,303,000
Investment in affiliate, at equity -- -- 235,000 235,000
Investment in affiliate, at cost -- -- 3,000,000 3,000,000
Purchase of property and equipment 6,000 2,559,000 37,000 2,602,000
Segment information excludes discontinued operations related to
Soundbreak.com as of and for the three and six months ended June 30, 2002 and
2001.
COMMITMENTS AND CONTINGENCIES
On November 28, 2000, Nanogen, Inc. filed a complaint in the United States
District Court for the Southern District of California against CombiMatrix and
Donald D. Montgomery, Ph.D., Senior Vice President,
F-33
Chief Technology Officer and a director of CombiMatrix. Dr. Montgomery was
employed by Nanogen as a senior research scientist between May 1994 and August
1995. The Nanogen complaint alleges, among other things, breach of contract,
trade secret misappropriation and that U.S. Patent No. 6,093,302 and other
proprietary information belonging to CombiMatrix are instead the property of
Nanogen. The complaint seeks, among other things, correction of inventorship on
the patent, the assignment of rights in the patent and pending patent
applications to Nanogen, an injunction preventing disclosure of trade secrets,
damages for trade secret misappropriation and the imposition of a constructive
trust. On December 15, 2000, CombiMatrix and Dr. Montgomery filed a motion to
dismiss the lawsuit, which was denied in part and granted in part on February 1,
2001. On March 9, 2001, CombiMatrix and Dr. Montgomery filed a counterclaim,
alleging breach of express covenants not to sue or otherwise interfere with Dr.
Montgomery arising out of a release signed by Nanogen in 1996. On April 4, 2001,
Nanogen filed a motion to dismiss the counterclaim, which the court denied in
its entirety on July 27, 2001. On July 31, 2002, the court denied a motion filed
by CombiMatrix for partial summary judgment regarding Donald Montgomery's prior
settlement agreement with Nanogen. See Subsequent Events above.
SUBSEQUENT EVENTS
In July 2002, Acacia was granted a patent for its digital media
transmission technology in Japan. The patent provides coverage through January
2, 2012. The granting of the Japanese patent strengthens Acacia's worldwide
intellectual property position, which includes five patents in the United States
and issued patents in 17 foreign countries.
In July 2002, Acacia executed a license agreement with Loewe Opta GmbH,
whereby Acacia will receive payment and grant a non-exclusive license of its
patented V-chip technology to Loewe Opta GmbH, a manufacturer of televisions
sold under the Loewe brand name.
In July 2002, CombiMatrix completed a prototype electrochemical detection
system and is set to deliver the system to the U.S. Department of Defense.
CombiMatrix developed its sensor technology through grants from the U.S.
Department of Defense. The focus of the grants was aimed at developing an
ultrasensitive hand-held biochip system for detecting the deployment of chemical
and biological warfare agents.
In August 2002, Soundview Technologies filed a federal patent infringement
lawsuit against seventeen television manufacturers in the United States District
Court for the District of Nevada. In this lawsuit, Soundview alleges that
television sets fitted with V-chips and sold in the United States infringe
Soundview Technologies' patent. As a result of the summary judgment ruling in
the case before the United States District Court for the District of
Connecticut, in October 2002, Soundview Technologies voluntarily filed to
dismiss, without prejudice, the Nevada infringement lawsuit. By voluntarily
dismissing this lawsuit at this time, Soundview Technologies will be able to
refile the action in the event that a favorable final decision is reached with
respect to the issue of infringement in the Connecticut lawsuit.
On September 30, 2002, CombiMatrix Corporation and Dr. Donald Montgomery,
an officer and stockholder of CombiMatrix Corporation, entered into a settlement
agreement with Nanogen, Inc. to settle all pending litigation between the
parties. Pursuant to the terms of the settlement agreement, CombiMatrix
Corporation agreed to pay Nanogen $500,000 within 30 days of the settlement and
an additional $500,000 within one year of the settlement. CombiMatrix
Corporation also agreed to make quarterly payments to Nanogen equal to 12.5% of
total sales of products developed by CombiMatrix Corporation and its affiliates
and based on the patents that had been in dispute in the litigation, up to an
annual maximum of $1,500,000. The minimum quarterly payments under the
settlement agreement will be $37,500 per quarter for the period from October 1,
2003 through October 1, 2004, and $25,000 per quarter thereafter until the
patents expire. Also pursuant to the settlement agreement, CombiMatrix
Corporation agreed to issue 4,016,346 shares, or 17.5% of its outstanding shares
post-issuance, to Nanogen, subject to antidilution provisions under specified
circumstances, including the exercise of outstanding options and warrants and
issuances of additional capital stock of CombiMatrix Corporation, for a period
of up to three years.
The issuance of shares by CombiMatrix Corporation to Nanogen, Inc.
decreases Acacia Research Corporations consolidated ownership interest in
CombiMatrix Corporation from 58% to 48%. Acacia Research Corporation continues
to possess the ability to direct or cause the direction of the management and
policies of CombiMatrix Corporation, primarily through Acacia Research
Corporation's ability to elect the majority of the
F-34
board of directors of CombiMatrix Corporation, pursuant to a stockholder
agreement with an officer of CombiMatrix Corporation. This stockholder agreement
stipulates that, collectively, Acacia Research Corporation and the officer who
is party to the stockholder agreement, will vote their shares such that the
board will be comprised of the directors nominated by Acacia Research
Corporation and the stockholder. The stockholder is generally prohibited from
selling his shares and Acacia Research Corporation has a right of first refusal
should the stockholder wish to sell his shares. Accordingly, the Company will
continue to account for its investment in CombiMatrix Corporation under the
consolidation method of accounting.
CombiMatrix Corporation will account for the issuance of the CombiMatrix
Corporation common shares in settlement of the litigation with Nanogen, Inc. as
a nonmonetary transaction. Accordingly, in the third quarter of 2002,
CombiMatrix Corporation will record a litigation settlement charge in the
consolidated statement of operations of approximately $18.0 million, which is
based on the fair value of the CombiMatrix Corporation common shares issued to
Nanogen, Inc. The fair value of the common shares issued and the related
litigation charge was based on a third-party valuation of CombiMatrix
Corporation.
In September 2002, we recorded an impairment charge of $2.7 million for an
other-than-temporary decline in the fair value of our cost method investment.
In October 2002, CombiMatrix was in non-compliance with one of its
covenants under its capital lease obligation with a commercial bank. CombiMatrix
paid the remaining balance of the obligation in the amount of $2.1 million on
November 1, 2002.
17. QUARTERLY FINANCIAL DATA (UNAUDITED)
The following table sets forth unaudited consolidated statement of
operations data for the eight quarters in the period ended December 31, 2001.
This information has been derived from our unaudited condensed consolidated
financial statements that have been prepared on the same basis as the audited
consolidated financial statements and, in the opinion of management, include all
adjustments, consisting of normal recurring adjustments, necessary for a fair
presentation of the information when read in conjunction with the audited
consolidated financial statements and related notes thereto. Our quarterly
results have been in the past and may in the future be subject to significant
fluctuations. As a result, we believe that results of operations for interim
periods should not be relied upon as any indication of the results to be
expected in any future periods.
F-35
QUARTER ENDED
-----------------------------------------------------
MAR. 31, JUN. 30, SEP. 30, DEC. 31,
2001 2001 2001 2001
----------- ----------- ----------- -----------
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE INFORMATION)
Revenues:
License fee income ............................... $ 2,440 $ 10,000 $ 10,740 $ 1,000
Grant revenue .................................... 183 91 91 91
Other income ..................................... -- -- -- --
----------- ----------- ----------- -----------
Total revenues ..................................... 2,623 10,091 10,831 1,091
Operating expenses ................................. 18,424 20,028 18,527 10,855
----------- ----------- ----------- -----------
Operating loss ..................................... (15,801) (9,937) (7,696) (9,764)
Other income (expense) ............................. 1,144 1,031 796 1,195
----------- ----------- ----------- -----------
Loss from continuing operations before income
taxes and minority interests ................... (14,657) (8,906) (6,900) (8,569)
(Provision) benefit for income taxes ............... (13) (228) (778) 239
----------- ----------- ----------- -----------
Loss from continuing operations before minority
interests ...................................... (14,670) (9,134) (7,678) (8,330)
Minority interests ................................. 5,191 4,362 4,851 3,136
----------- ----------- ----------- -----------
Loss from continuing operations .................... (9,479) (4,772) (2,827) (5,194)
Loss from discontinued operations .................. -- -- -- --
----------- ----------- ----------- -----------
Loss before cumulative effect of change in
accounting principle ........................... (9,479) (4,772) (2,827) (5,194)
Cumulative effect of change in accounting
principle due to beneficial conversion
feature ...................................... $ -- $ -- $ -- $ --
----------- ----------- ----------- -----------
Net loss ........................................... $ (9,479) $ (4,772) $ (2,827) $ (5,194)
=========== =========== =========== ===========
Loss per common share:
Basic
Loss from continuing operations .................. $ (0.50) $ (0.25) $ (0.15) $ (0.27)
Loss from discontinued operations ................ $ -- $ -- $ -- $ --
Cumulative effect of change in accounting
principle .................................... $ -- $ -- $ -- $ --
----------- ----------- ----------- -----------
Net loss ........................................... $ (0.50) $ (0.25) $ (0.15) $ (0.27)
=========== =========== =========== ===========
Diluted
Loss from continuing operations .................. $ (0.50) $ (0.25) $ (0.15) $ (0.27)
Loss from discontinued operations ................ $ -- $ -- $ -- $ --
Cumulative effect of change in accounting
principle .................................... $ -- $ -- $ -- $ --
----------- ----------- ----------- -----------
Net loss ........................................... $ (0.50) $ (0.25) $ (0.15) $ (0.27)
=========== =========== =========== ===========
Weighted average number of common and potential
shares outstanding used in
computation of loss per share:
Basic ............................................ 18,985,864 19,503,645 19,525,807 19,558,572
Diluted .......................................... 18,985,864 19,503,645 19,525,807 19,558,572
Market price per share:
High ............................................. $ 18.98 $ 16.14 $ 16.66 $ 13.42
Low .............................................. $ 5.23 $ 4.69 $ 5.83 $ 8.29
QUARTER ENDED
-----------------------------------------------------
MAR. 31, JUN. 30, SEP. 30, DEC. 31,
2000 2000 2000 2000
----------- ----------- ----------- -----------
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE INFORMATION)
Revenues:
License fee income ............................... $ -- $ -- $ -- $ --
Grant revenue .................................... 17 -- -- --
Other income ..................................... -- 22 18 --
----------- ----------- ----------- -----------
Total revenues ..................................... 17 22 18 --
Operating expenses ................................. 3,250 4,150 11,881 17,939
----------- ----------- ----------- -----------
Operating loss ..................................... (3,233) (4,128) (11,863) (17,939)
Other income (expense) ............................. 99 21 457 (1,812)
----------- ----------- ----------- -----------
Loss from continuing operations before income
taxes and minority interests ................... (3,134) (4,107) (11,406) (19,751)
(Provision) benefit for income taxes ............... (5) (2) 38 42
----------- ----------- ----------- -----------
Loss from continuing operations before minority
interests ...................................... (3,139) (4,109) (11,368) (19,709)
Minority interests ................................. 461 659 2,528 5,518
----------- ----------- ----------- -----------
Loss from continuing operations .................... (2,678) (3,450) (8,840) (14,191)
Loss from discontinued operations .................. (884) (2,787) (2,057) (3,826)
----------- ----------- ----------- -----------
Loss before cumulative effect of change in
accounting principle ........................... (3,562) (6,237) (10,897) (18,017)
Cumulative effect of change in accounting
principle due to beneficial conversion
feature ...................................... $ (246) $ -- $ -- $ --
----------- ----------- ----------- -----------
Net loss ........................................... $ (3,808) $ (6,237) $ (10,897) $ (18,017)
=========== =========== =========== ===========
Loss per common share:
Basic
Loss from continuing operations .................. $ (0.17) $ (0.21) $ (0.51) $ (0.80)
Loss from discontinued operations ................ $ (0.06) $ (0.17) $ (0.12) $ (0.21)
Cumulative effect of change in accounting
principle .................................... $ (0.02) $ -- $ -- $ --
----------- ----------- ----------- -----------
Net loss ........................................... $ (0.25) $ (0.38) $ (0.63) $ (1.01)
=========== =========== =========== ===========
Diluted
Loss from continuing operations .................. $ (0.17) $ (0.21) $ (0.51) $ (0.80)
Loss from discontinued operations ................ $ (0.06) $ (0.17) $ (0.12) $ (0.21)
Cumulative effect of change in accounting
principle .................................... $ (0.02) $ -- $ -- $ --
----------- ----------- ----------- -----------
Net loss ........................................... $ (0.25) $ (0.38) $ (0.63) $ (1.01)
=========== =========== =========== ===========
Weighted average number of common and potential
shares outstanding used in
computation of loss per share:
Basic ............................................ 15,630,070 16,292,859 17,502,640 17,840,672
Diluted .......................................... 15,630,070 16,292,859 17,502,640 17,840,672
Market price per share:
High ............................................. $ 53.64 $ 39.09 $ 32.05 $ 33.81
Low .............................................. $ 26.82 $ 12.16 $ 19.89 $ 12.50
F-36
18. CONSOLIDATING FINANCIAL INFORMATION
On March 20, 2002, Acacia Research's board of directors (the "Board")
approved a plan that would create two new classes of common stock called Acacia
Research Corporation-CombiMatrix common stock ("AR-CombiMatrix stock") and
Acacia Research Corporation-Acacia Technologies common stock ("AR-Acacia
Technologies stock") (the "Recapitalization Proposal"). AR-CombiMatrix stock is
intended to reflect separately the performance of the CombiMatrix group.
AR-Acacia Technologies stock is intended to reflect separately the performance
of Acacia Research Corporation's media technology business. Each share of
existing Acacia Research Corporation common stock will be converted into
approximately 0.5582 of a share of AR-CombiMatrix stock and one share of
AR-Acacia Technologies stock. Acacia Research Corporation intends to list the
AR-CombiMatrix stock and the AR-Acacia Technologies stock on the NASDAQ National
Market under the symbols "CBMX" and "ACTG," respectively. The Board also
approved an agreement whereby Acacia Research Corporation would acquire the
minority stockholder interest in CombiMatrix Corporation. The acquisition would
be accomplished through a merger in which the minority stockholders of
CombiMatrix Corporation would receive one share of the to be formed
AR-CombiMatrix stock in exchange for one share of their existing CombiMatrix
Corporation common stock. The acquisition is subject to approval by the
stockholders of Acacia Research Corporation.
Presented below is the consolidating financial information reflecting the
businesses of the Acacia Technologies group and the CombiMatrix group. Earnings
attributable to each group has been determined in accordance with accounting
principles generally accepted in the United States.
AR-CombiMatrix stock and AR-Acacia Technologies stock are intended to
reflect the separate performance of the respective division of Acacia Research
Corporation. The CombiMatrix group and the Acacia Technologies group are not
separate legal entities. Holders of AR-CombiMatrix stock and AR-Acacia
Technologies stock will be stockholders of Acacia Research Corporation. As a
result, holders of AR-CombiMatrix stock and AR-Acacia Technologies stock will
continue to be subject to all of the risks of an investment in Acacia Research
Corporation and all of its businesses, assets and liabilities. The assets Acacia
Research Corporation attributes to one of the groups could be subject to the
liabilities of the other group. The group financial statements have been
prepared in accordance with generally accepted accounting principles in the
United States of America, and taken together, comprise all the accounts included
in the corresponding consolidated financial statements of Acacia Research
Corporation. The financial statements of the groups reflect the financial
condition, results of operations, and cash flows of the businesses included
therein. The financial statements of the groups include the accounts or assets
of Acacia Research Corporation specifically attributed to the groups and were
prepared using amounts included in Acacia Research Corporation's consolidated
financial statements.
Minority interests represent participation of other stockholders in the net
equity and in the division earnings and losses of the groups and are reflected
in the caption "Minority interests" in the group financial statements. Minority
interests adjust group net results of operations to reflect only the group's
share of the division earnings or losses of non-wholly-owned investees.
Financial effects arising from one group that affect Acacia Research
Corporation's results of operations or financial condition could, if
significant, affect the results of operations or financial condition of the
other group and the market price of the class of common stock relating to the
other group. Any division net losses of the CombiMatrix group or of the Acacia
Technologies group, and dividends or distributions on, or repurchases of,
AR-CombiMatrix stock or AR-Acacia Technologies stock, will reduce the assets of
Acacia Research Corporation legally available for payment of dividends on
AR-CombiMatrix stock or AR-Acacia Technologies stock.
MANAGEMENT ALLOCATION POLICIES. The management and allocation policies
applicable to the preparation of the financial statements of the CombiMatrix
group and the Acacia Technologies group may be modified or rescinded, or
additional policies may be adopted, at the sole discretion of the Board at any
time without approval of the stockholders. The CombiMatrix group's financial
statements reflect the application of the management and allocation policies
adopted by the Board to various corporate activities, as described below.
Management has no plans to change allocation methods or the composition of the
groups. The CombiMatrix group financial statements should be read in conjunction
with the Acacia Research Corporation consolidated financial statements and
related notes.
F-37
TREASURY AND CASH MANAGEMENT POLICIES. Cash and short-term investments were
attributed to the groups based on the respective cash and short term investments
balances of the entities comprising each group. Corporate cash balances have
been attributed to the Acacia Technologies group. All cash raised by CombiMatrix
Corporation and Advanced Material Sciences have been attributed to the
CombiMatrix group. The Company does not currently have any short term or
long-term debt. Should debt arise in future periods, the Company will attribute
each future incurrence or issuance of external debt or preferred stock (and the
proceeds thereof) between the groups or entirely to one group as described
below. Acacia Research Corporation will manage most treasury activities on a
decentralized basis, with each separate group separately managing its own
treasury activities. Pursuant to treasury and cash management policies adopted
by the Board, after the date on which AR-CombiMatrix stock and AR-Acacia
Technologies stock is first issued, the following will apply:
o Acacia Research Corporation will attribute each future issuance of
AR-Acacia Technologies stock (and the proceeds thereof) to the Acacia
Technologies group and will attribute each future issuance of
AR-CombiMatrix stock (and the proceeds thereof) to the CombiMatrix
group;
o Acacia Research Corporation will attribute each future incurrence or
issuance of external debt or preferred stock (and the proceeds
thereof) between the groups or entirely to one group as determined by
the Board, based on the extent to which Acacia Research Corporation
incurs or issues the debt or preferred stock for the benefit of the
CombiMatrix group or the Acacia Technologies group;
o Dividends on AR-Acacia Technologies stock will be charged against the
AR-Acacia Technologies group, and dividends on AR-CombiMatrix stock
will be charged against the CombiMatrix group;
o Repurchases of AR-Acacia Technologies stock will be charged against
the Acacia Technologies group and Repurchases of AR-CombiMatrix stock
will be charged against the CombiMatrix group;
o As of immediately prior to the first issuance of AR-CombiMatrix stock
and AR-Acacia Technologies stock, the CombiMatrix group and the Acacia
Technologies group shall be deemed to be allocated the cash and cash
equivalents held by the respective groups as of that date;
o Acacia Research Corporation will account for any cash transfers from
Acacia Research Corporation to or for the account of a group, from a
group to or for the account of Acacia Research Corporation, or from
one group to or for the account of the other group (other than
transfers in return for assets or services rendered) as short-term
loans unless (A) the Board determines that a given transfer (or type
of transfer) should be accounted for as a long-term loan, (B) the
Board determines that a given transfer (or type of transfer) should be
accounted for as a capital contribution or (iii) the Board determines
that a given transfer (or type of transfer) should be accounted for as
a return of capital. There are no specific criteria to determine when
Acacia Research Corporation will account for a cash transfer as a
long-term loan, a capital contribution or a return of capital rather
than an inter-group revolving credit advance; provided, however, that
cash advances from Acacia Research Corporation to the Acacia
Technologies group or to the CombiMatrix group up to $25 million on a
cumulative basis shall be accounted for as short-term or long-term
loans at interest rates at which Acacia Research Corporation could
borrow such funds and shall not be accounted for as a capital
contribution. The Board will make such a determination in the exercise
of its business judgment at the time of such transfer based upon all
relevant circumstances. Factors the Board may consider include,
without limitation, the current and projected capital structure of
each group; the financing needs and objectives of the recipient group;
the availability, cost and time associated with alternative financing
sources; and prevailing interest rates and general economic
conditions; and
o Any cash transfers accounted for as short-term loans will bear
interest at the rate at which Acacia Research Corporation could borrow
such funds. In addition, any cash transfers accounted for as a
long-term loan will have interest rates, amortization, maturity,
redemption and other terms that reflect the then-prevailing terms on
which Acacia Research Corporation could borrow such funds.
ASSETS AND LIABILITIES. In general, Acacia Research Corporation's assets
and liabilities have been attributed to the Acacia Technologies group and the
CombiMatrix group based on the respective asset and liabilities of the business
comprising each group. Net intangible assets recorded at the Acacia Research
Corporation level, primarily
F-38
consisting of acquired patents and goodwill balances, have been attributed to
the respective businesses comprising each group to which the intangibles and
goodwill relate.
CORPORATE GENERAL AND ADMINISTRATIVE SERVICES AND FACILITIES. Acacia
Research Corporation allocates the cost of corporate general and administrative
services and facilities between the groups generally based upon utilization.
Where determinations based on utilization alone are impracticable, Acacia
Research Corporation will use other methods and criteria that management
believes to be equitable and to provide a reasonable estimate of the cost
attributable to each group. Except as otherwise determined by management, the
allocated costs of providing such services and facilities include, without
limitation, all costs and expenses of personnel employed in connection with such
services and facilities, including, without limitation, all direct costs of such
personnel, such as payroll, payroll taxes and fringe benefit costs (calculated
at the appropriate annual composite rate therefor) and all overhead costs and
expenses directly related to such personnel and the services or facilities
provided by them. In addition, allocated costs include all materials used in
connection with such services or facilities, billed at their net cost to the
provider of the services or facilities plus all overhead costs and expenses
related to such materials. Except as may otherwise be specifically provided
pursuant to the terms of any agreements among Acacia Research Corporation and
the groups or any resolutions of the Board, the corporate general and
administrative services and facilities to be allocated between the groups
include, without limitation, legal services, accounting services (tax and
financial), insurance and deductibles payable in connection therewith, employee
benefit plans and administration thereof, investor relations, stockholder
services, and services relating to the board of directors.
Management believes that the methods and criteria used to allocate costs
are equitable and provide a reasonable estimate of the cost attributable to the
groups. Based on the allocation methods used, the Company believes that the
allocation of expenses as presented in the accompanying financial statements for
the groups reflects a reasonable estimation of expenses that would be recognized
if the groups were separate stand alone registrants.
ALLOCATION OF FEDERAL AND STATE INCOME TAXES. Acacia Research Corporation
determines its federal income taxes and the federal income taxes of its
subsidiaries that own assets allocated between the groups on a consolidated
basis. Acacia Research Corporation allocates consolidated federal income tax
provisions and related tax payments or refunds between the Acacia Technologies'
group and CombiMatrix group based principally on the taxable income and tax
credits directly attributable to each group. Such allocations reflect each
group's contribution, whether positive or negative, to Acacia Research
Corporation's consolidated federal taxable income and consolidated federal tax
liability and tax credit position. Acacia Research Corporation will credit tax
benefits that cannot be used by the group generating those benefits but can be
used on a consolidated basis to the group that generated such benefits.
Inter-group transactions will be treated as taxed as if each group was a
stand-alone company. Depending on the tax laws of the respective jurisdictions,
state and local income taxes are calculated on either a consolidated or combined
basis between the groups based on their respective contribution to such
consolidated or combined state taxable incomes. State and local income tax
provisions and related tax payments or refunds which are determined on a
separate corporation basis will be allocated between the groups in a manner
designed to reflect the respective contributions of the groups to Acacia
Research Corporation's separate or local taxable income.
F-39
CONSOLIDATING STATEMENT OF FINANCIAL POSITION AT DECEMBER 31, 2001
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
ASSETS
Current assets:
Cash and cash equivalents ............................................ $46,859 $12,592 $ -- $ 59,451
Short-term investments ............................................... 4,372 20,738 -- 25,110
Prepaid expenses, other receivables and other assets ................. 800 813 -- 1,613
------- ------- ---- --------
Total current assets .............................................. 52,031 34,143 -- 86,174
Property and equipment, net of accumulated depreciation ................ 358 4,548 -- 4,906
Receivable from CombiMatrix group ...................................... 30 -- (30) --
Investment in affiliate, at cost ....................................... 3,000 -- -- 3,000
Patents, net of accumulated amortization ............................... 5,554 6,301 -- 11,855
Goodwill, net of accumulated amortization .............................. 1,776 2,851 -- 4,627
Other assets ........................................................... 177 120 -- 297
------- ------- ---- --------
$62,926 $47,963 $(30) $110,859
======= ======= ==== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable, accrued expenses and other ........................... $ 2,925 $ 2,831 $ -- $ 5,756
Current portion of deferred revenues ................................. 1,500 5,588 -- 7,088
Current portion of capital lease obligation .......................... -- 934 -- 934
------- ------- ---- --------
Total current liabilities ......................................... 4,425 9,353 -- 13,778
------- ------- ---- --------
Payable to Acacia Technologies group ................................... -- 30 (30) --
Deferred income taxes .................................................. 1,298 2,531 -- 3,829
Deferred revenues, net of current portion .............................. -- 372 -- 372
Capital lease obligation, net of current portion ....................... -- 1,845 -- 1,845
------- ------- ---- --------
Total liabilities ................................................. 5,723 14,131 (30) 19,824
------- ------- ---- --------
Minority interests ..................................................... 2,194 30,109 -- 32,303
------- ------- ---- --------
Stockholders' equity:
AR-Acacia Technologies stock ......................................... 55,009 -- -- 55,009
AR-CombiMatrix stock ................................................. -- 3,723 -- 3,723
------- ------- ---- --------
Total stockholders' equity ............................................. 55,009 3,723 -- 58,732
------- ------- ---- --------
$62,926 $47,963 $(30) $110,859
======= ======= ==== ========
F-40
CONSOLIDATING STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 2001
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
Revenues:
License fee income ................................................... $ 24,180 $ -- $-- $ 24,180
Grant revenue ........................................................ -- 456 -- 456
-------- -------- --- --------
Total revenues ................................................. 24,180 456 -- 24,636
Operating expenses:
Research and development expenses .................................... -- 18,839 -- 18,839
Marketing, general and administrative expenses ....................... 5,258 29,470 -- 34,728
Legal expenses ....................................................... 11,572 -- -- 11,572
Amortization of patents and goodwill ................................. 1,492 1,203 -- 2,695
-------- -------- --- --------
Total operating expenses .......................................... 18,322 49,512 -- 67,834
-------- -------- --- --------
Operating income (loss) .............................................. 5,858 (49,056) -- (43,198)
-------- -------- --- --------
Other income (expenses):
Write-off of equity investments ...................................... -- -- -- --
Interest income ...................................................... 1,642 2,120 -- 3,762
Realized gains on short-term investments ............................. 350 -- -- 350
Unrealized gains on short-term investments ........................... 237 -- -- 237
Interest expense ..................................................... -- (65) -- (65)
Equity in losses of affiliates ....................................... (195) -- -- (195)
Other income ......................................................... 77 -- -- 77
-------- -------- --- --------
Total other income (expense) ...................................... 2,111 2,055 -- 4,166
-------- -------- --- --------
Income (loss) from continuing operations before income taxes and
minority interests ................................................. 7,969 (47,001) -- (39,032)
(Provision) benefit for income taxes ................................... (935) 155 -- (780)
-------- -------- --- --------
Income (loss) from continuing operations before minority interests ..... 7,034 (46,846) -- (39,812)
Minority interests ..................................................... (1,277) 18,817 -- 17,540
-------- -------- --- --------
Net income (loss) ...................................................... $ 5,757 $(28,029) $-- $(22,272)
======== ======== === ========
F-41
CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 2001
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Income (loss) from continuing operations ............................... $ 5,757 $(28,029) $ -- $(22,272)
Adjustments to reconcile net income (loss) to net cash used in
operating activities:
Depreciation and amortization ..................................... 1,710 2,159 -- 3,869
Equity in losses of affiliates .................................... 195 -- -- 195
Minority interests in net income (loss) ........................... 1,277 (18,817) -- (17,540)
Compensation expense relating to stock options and warrants ....... 856 19,963 -- 20,819
Deferred tax benefit .............................................. (27) (155) -- (182)
Write-off of other assets ......................................... -- 918 -- 918
Net purchases of trading securities ............................... (4,135) -- -- (4,135)
Unrealized gain on short-term investments ......................... (237) -- -- (237)
Other ............................................................. 40 314 -- 354
Changes in assets and liabilities, net of effects of acquisitions:
Prepaid expenses, other receivables and other assets .............. (378) (258) (77) (713)
Accounts payable, accrued expenses and other ...................... 233 775 77 1,085
Deferred revenues ................................................. 1,500 5,960 -- 7,460
-------- -------- ---- --------
Net cash provided by (used in) operating activities of continuing
operations ..................................................... 6,791 (17,170) -- (10,379)
Net cash used in operating activities of discontinued operations .. (2,182) -- -- (2,182)
-------- -------- ---- --------
Net cash provided by (used in) operating activities ............... 4,609 (17,170) -- (12,561)
-------- -------- ---- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of additional equity in consolidated subsidiaries ........ (3,304) -- -- (3,304)
Purchase of property and equipment ................................ (19) (3,756) -- (3,775)
Proceeds from sale and leaseback arrangement ...................... -- 3,000 -- 3,000
Sale of available-for-sale investments ............................ 25,921 50,354 -- 76,275
Purchase of available-for-sale investments ........................ (25,921) (30,765) -- (56,686)
Purchase of common stock from minority stockholders of
subsidiaries .................................................... (2,550) -- -- (2,550)
-------- -------- ---- --------
Net cash (used in) provided by investing activities of continuing
operations ...................................................... (5,873) 18,833 -- 12,960
Net cash used in investing activities of discontinued operations .. (145) -- -- (145)
-------- -------- ---- --------
Net cash (used in) provided by investing activities ............... (6,018) 18,833 -- 12,815
-------- -------- ---- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net cash attributed to the Acacia Technologies group .............. 18,663 -- -- 18,663
Net cash attributed to the CombiMatrix group ...................... -- 4,496 -- 4,496
-------- -------- ---- --------
Net cash provided by financing activities ......................... 18,663 4,496 -- 23,159
-------- -------- ---- --------
Increase in cash and cash equivalents ............................. 17,254 6,159 -- 23,413
Cash and cash equivalents, beginning .............................. 29,605 6,558 -- 36,163
Effect of exchange rate on cash ................................... -- (125) -- (125)
-------- -------- ---- --------
Cash and cash equivalents, ending ................................. $ 46,859 $ 12,592 $ -- $ 59,451
======== ======== ==== ========
F-42
CONSOLIDATING STATEMENT OF FINANCIAL POSITION AT DECEMBER 31, 2000
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
ASSETS
Current assets:
Cash and cash equivalents ........................................... $29,605 $ 6,558 $ -- $36,163
Short-term investments .............................................. -- 40,600 -- 40,600
Prepaid expenses, other receivables and other assets ................ 323 1,148 -- 1,471
------- ------- ----- -------
Total current assets ............................................. 29,928 48,306 -- 78,234
Property and equipment, net of accumulated depreciation ................ 871 2,856 -- 3,727
Receivable from CombiMatrix group ...................................... 107 -- (107) --
Investment in affiliate, at equity ..................................... 346 -- -- 346
Investment in affiliate, at cost ....................................... 3,000 -- -- 3,000
Patents, net of accumulated amortization ............................... 2,215 6,823 -- 9,038
Goodwill, net of accumulated amortization .............................. 426 3,478 -- 3,904
Other assets ........................................................... 169 98 -- 267
------- ------- ----- -------
$37,062 $61,561 $(107) $98,516
======= ======= ===== =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable, accrued expenses and other ........................ $ 5,075 $ 2,879 $ -- $ 7,954
Accrued stock compensation .......................................... -- 10,205 -- 10,205
------- ------- ----- -------
Total current liabilities ........................................ 5,075 13,084 -- 18,159
------- ------- ----- -------
Payable to Acacia Technologies group ................................... -- 107 (107) --
Deferred income taxes .................................................. -- 2,689 -- 2,689
------- ------- ----- -------
Total liabilities ...................................................... 5,075 15,880 (107) 20,848
------- ------- ----- -------
Minority interests ..................................................... 2,012 15,512 -- 17,524
------- ------- ----- -------
Stockholders' equity:
AR-Acacia Technologies stock ..................................... 29,975 -- -- 29,975
AR-CombiMatrix stock ............................................. -- 30,169 -- 30,169
------- ------- ----- -------
Total stockholders' equity ............................................. 29,975 30,169 -- 60,144
------- ------- ----- -------
$37,062 $61,561 $(107) $98,516
======= ======= ===== =======
F-43
CONSOLIDATING STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 2000
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
Revenues:
Grant revenue ....................................................... $ -- $ 17 $-- $ 17
Other income ........................................................ 40 -- -- 40
-------- -------- --- --------
Total revenues ................................................... 40 17 -- 57
-------- -------- --- --------
Operating expenses:
Research and development expenses ................................... 52 11,812 -- 11,864
Marketing, general and administrative expenses ...................... 8,983 12,122 -- 21,105
Legal expenses ...................................................... 984 -- -- 984
Amortization of patents and goodwill ................................ 1,611 640 -- 2,251
Loss on disposal of consolidated subsidiaries ....................... 1,016 -- -- 1,016
-------- -------- --- --------
Total operating expenses ......................................... 12,646 24,574 -- 37,220
-------- -------- --- --------
Operating loss ...................................................... (12,606) (24,557) -- (37,163)
-------- -------- --- --------
Other income (expense):
Write-off of equity investments ..................................... (2,603) -- -- (2,603)
Interest income ..................................................... 1,424 1,662 -- 3,086
Equity in losses of affiliates ...................................... (1,746) -- -- (1,746)
Other income ........................................................ 28 -- -- 28
-------- -------- --- --------
Total other income (expense) ..................................... (2,897) 1,662 -- (1,235)
-------- -------- --- --------
Loss from continuing operations before income taxes and minority
interests ........................................................... (15,503) (22,895) -- (38,398)
(Provision) benefit for income taxes ................................... (6) 79 -- 73
-------- -------- --- --------
Loss from continuing operations before minority interests .............. (15,509) (22,816) -- (38,325)
Minority interests ..................................................... 866 8,300 -- 9,166
-------- -------- --- --------
Loss from continuing operations ........................................ (14,643) (14,516) -- (29,159)
Discontinued operations:
Loss from discontinued operations of Soundbreak.com ................. (7,443) -- -- (7,443)
Estimated loss on disposal of Soundbreak.com ........................ (2,111) -- -- (2,111)
-------- -------- --- --------
Loss before cumulative effect of change in accounting principle ........ (24,197) (14,516) -- (38,713)
Cumulative effect of change in accounting principle due to beneficial
conversion feature of debt .......................................... -- (246) -- (246)
-------- -------- --- --------
Net loss ............................................................... $(24,197) $(14,762) $-- $(38,959)
======== ======== === ========
F-44
CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 2000
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Loss from continuing operations ........................................ $(14,643) $(14,516) $ -- $(29,159)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization ...................................... 1,751 906 -- 2,657
Equity in losses of affiliates ..................................... 1,746 -- -- 1,746
Minority interests in net loss ..................................... (866) (8,300) -- (9,166)
Compensation expense relating to stock options and warrants ........ 709 9,995 -- 10,704
Charge for acquired in-process research and development ............ -- 2,508 -- 2,508
Deferred tax benefit ............................................... (2) (79) -- (81)
Write-off of other assets .......................................... 2,603 -- -- 2,603
Other .............................................................. 398 (105) -- 293
Changes in assets and liabilities, net of effects of acquisitions:
Prepaid expenses, other receivables and other assets ............... (1,053) (989) 13 (2,029)
Accounts payable, accrued expenses and other ....................... 162 1,891 (13) 2,040
-------- -------- ---- --------
Net cash used in operating activities of continuing operations ..... (9,195) (8,689) -- (17,884)
Net cash used in operating activities of discontinued operations ... (16,600) -- -- (16,600)
-------- -------- ---- --------
Net cash used in operating activities .............................. (25,795) (8,689) -- (34,484)
-------- -------- ---- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital contribution to equity investments ......................... 1,000 -- -- 1,000
Purchase of additional equity in consolidated subsidiaries ......... (970) -- -- (970)
Purchase of property and equipment ................................. (472) (2,004) -- (2,476)
Sale of available-for-sale investments ............................. -- 3,975 -- 3,975
Purchase of available-for-sale investments ......................... -- (44,606) -- (44,606)
Other .............................................................. (54) -- -- (54)
-------- -------- ---- --------
Net cash used in investing activities of continuing operations ..... (496) (42,635) -- (43,131)
Net cash used in investing activities of discontinued operations ... (1,173) -- -- (1,173)
-------- -------- ---- --------
Net cash used in investing activities .............................. (1,669) (42,635) -- (44,304)
-------- -------- ---- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net cash attributed to the Acacia Technologies group ............... 20,897 -- -- 20,897
Net cash attributed to the CombiMatrix group ....................... -- 56,423 -- 56,423
-------- -------- ---- --------
Net cash provided by financing activities .......................... 20,897 56,423 -- 77,320
-------- -------- ---- --------
(Decrease) Increase in cash and cash equivalents ................... (6,567) 5,099 -- (1,468)
Cash and cash equivalents, beginning ............................... 36,172 1,459 -- 37,631
Effect of exchange rate on cash .................................... -- -- -- --
-------- -------- ---- --------
Cash and cash equivalents, ending .................................. $ 29,605 $ 6,558 $ -- $ 36,163
======== ======== ==== ========
F-45
CONSOLIDATING STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1999
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
Revenues:
Grant revenue ....................................................... $ -- $ 144 $-- $ 144
Other income ........................................................ 122 -- -- 122
------- ------- --- -------
Total revenue .................................................... 122 144 -- 266
------- ------- --- -------
Operating expenses:
Research and development expenses ................................... -- 1,806 -- 1,806
Marketing, general and administrative expenses ...................... 3,198 933 -- 4,131
Legal expenses ...................................................... 287 -- -- 287
Amortization of patents and goodwill ................................ 1,592 30 -- 1,622
------- ------- --- -------
Total operating expenses ......................................... 5,077 2,769 -- 7,846
------- ------- --- -------
Operating loss ...................................................... (4,955) (2,625) -- (7,580)
------- ------- --- -------
Other income (expense):
Interest income ..................................................... 286 43 -- 329
Interest expense .................................................... -- (264) -- (264)
Equity in losses of affiliates ...................................... (1,121) -- -- (1,121)
Other income ........................................................ 17 (3) -- 14
------- ------- --- -------
Total other income (expense) ..................................... (818) (224) -- (1,042)
------- ------- --- -------
Loss from continuing operations before income taxes and minority
interests ........................................................... (5,773) (2,849) -- (8,622)
Provision for income taxes ............................................. (18) (2) -- (20)
------- ------- --- -------
Loss from continuing operations before minority interests .............. (5,791) (2,851) -- (8,642)
Minority interests ..................................................... (27) 1,248 -- 1,221
------- ------- --- -------
Loss from continuing operations ........................................ (5,818) (1,603) -- (7,421)
Discontinued operations:
Loss from discontinued operations of Soundbreak.com ................. (776) -- -- (776)
------- ------- --- -------
Net loss ............................................................... $(6,594) $(1,603) $-- $(8,197)
======= ======= === =======
F-46
CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1999
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Loss from continuing operations ........................................ $(5,818) $(1,603) $ -- $(7,421)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization ....................................... 1,688 83 -- 1,771
Equity in losses of affiliates ...................................... 1,121 -- -- 1,121
Minority interests in net loss ...................................... 27 (1,248) -- (1,221)
Compensation expense relating to stock options and warrants ......... 110 36 -- 146
Other ............................................................... 101 149 -- 250
Changes in assets and liabilities, net of effects of acquisitions:
Prepaid expenses, other receivables and other assets ................ 3,244 (11) (3,010) 223
Accounts payable, accrued expenses and other ........................ 492 (3,087) 3,010 415
------- ------- ------- -------
Net cash used in operating activities of continuing operations ...... 965 (5,681) -- (4,716)
Net cash used in operating activities of discontinued operations .... (1,420) -- -- (1,420)
------- ------- ------- -------
Net cash used in operating activities ............................... (455) (5,681) -- (6,136)
------- ------- ------- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of additional equity in consolidated subsidiaries .......... (2,387) -- -- (2,387)
Deposit on investment ............................................... (3,000) -- -- (3,000)
Withdrawals from partnerships ....................................... 1,710 -- -- 1,710
Purchase of property and equipment .................................. (153) (88) -- (241)
Other ............................................................... (83) -- -- (83)
------- ------- ------- -------
Net cash used in investing activities of continuing operations ...... (3,913) (88) -- (4,001)
Net cash used in investing activities of discontinued operations .... (649) -- -- (649)
------- ------- ------- -------
Net cash used in investing activities ............................... (4,562) (88) -- (4,650)
------- ------- ------- -------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net cash attributed to the Acacia Technologies group ................ 36,753 -- -- 36,753
Net cash attributed to the CombiMatrix group ........................ -- 4,156 -- 4,156
------- ------- ------- -------
Net cash provided by financing activities ........................... 36,753 4,156 -- 40,909
------- ------- ------- -------
Increase (decrease) in cash and cash equivalents .................... 31,736 (1,613) -- 30,123
Cash and cash equivalents, beginning ................................ 4,436 3,072 -- 7,508
------- ------- ------- -------
Cash and cash equivalents, ending ................................... $36,172 $ 1,459 $ -- $37,631
======= ======= ======= =======
F-47
CONSOLIDATING STATEMENT OF FINANCIAL POSITION AS OF JUNE 30, 2002 (UNAUDITED)
ACACIA TECHNOLOGIES
GROUP COMBIMATRIX GROUP ELIMINATIONS CONSOLIDATED
------------------- ----------------- ------------ ------------
ASSETS
Current assets:
Cash and cash equivalents ............................. $42,874 $ 6,838 $ -- $49,712
Short-term investments ................................ 765 15,934 -- 16,699
Prepaid expenses, other receivables and other assets .. 1,087 1,595 -- 2,682
------- ------- ---- -------
Total current assets ............................... 44,726 24,367 -- 69,093
Property and equipment, net of accumulated depreciation .. 315 4,260 -- 4,575
Receivable from CombiMatrix group ........................ 88 -- (88) --
Investment in affiliate, at cost ......................... 3,000 -- -- 3,000
Patents, net of accumulated amortization ................. 4,726 6,131 -- 10,857
Goodwill, net of accumulated amortization ................ 1,776 2,851 -- 4,627
Other assets ............................................. 694 94 -- 788
------- ------- ---- -------
$55,325 $37,703 $(88) $92,940
======= ======= ==== =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable, accrued expenses and other .......... $ 2,745 $ 2,954 $ -- $ 5,699
Current portion of deferred revenues .................. 1,500 7,342 -- 8,842
Current portion of capital lease obligation ........... -- 976 -- 976
------- ------- ---- -------
Total current ...................................... 4,245 11,272 -- 15,517
------- ------- ---- -------
Payable to Acacia Technologies group ..................... -- 88 (88) --
Deferred income taxes .................................... 1,227 2,452 -- 3,679
Deferred revenues, net of current portion ................ -- 266 -- 266
Capital lease obligation, net of current portion ......... -- 1,346 -- 1,346
------- ------- ---- -------
Total liabilities .................................. 5,472 15,424 (88) 20,808
------- ------- ---- -------
Minority interests ....................................... 1,899 27,480 -- 29,379
------- ------- ---- -------
Stockholders' equity:
AR-Acacia Technologies stock .......................... 47,954 -- -- 47,954
AR-CombiMatrix stock .................................. -- (5,201) -- (5,201)
------- ------- ---- -------
Total stockholders' equity ......................... 47,954 (5,201) -- 42,753
------- ------- ---- -------
$55,325 $37,703 $(88) $92,940
======= ======= ==== =======
F-48
CONSOLIDATING STATEMENT OF OPERATIONS FOR THE THREE AND SIX MONTHS ENDED JUNE
30, 2002 (UNAUDITED)
THREE MONTHS ENDED JUNE 30, 2002
--------------------------------------------------------
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
Revenues:
Grant revenue ................................... $ -- $ 164 $-- $ 164
Product revenue ................................. -- 274 -- 274
------- -------- --- --------
Total revenues ............................... -- 438 -- 438
------- -------- --- --------
Operating expenses:
Cost of sales ................................... -- 253 -- 253
Research and development expenses ............... -- 5,026 -- 5,026
Non-cash stock compensation expense - R&D ....... -- 692 -- 692
Marketing, general and administrative expenses .. 2,589 2,927 -- 5,516
Non-cash stock compensation expense - MG&A ...... 8 1,443 -- 1,451
Amortization of patents and goodwill ............ 465 99 -- 564
------- -------- --- --------
Total operating expenses ........................... 3,062 10,440 -- 13,502
------- -------- --- --------
Operating loss ..................................... (3,062) (10,002) -- (13,064)
------- -------- --- --------
Other expense (income):
Interest income ................................. 147 146 -- 293
Realized losses on short-term investments ....... (930) -- -- (930)
Unrealized losses on short-term investments ..... (156) -- -- (156)
Interest expense ................................ -- (57) -- (57)
Other income .................................... 34 -- -- 34
------- -------- --- --------
Total other expense (income) ................. (905) 89 -- (816)
------- -------- --- --------
Loss from continuing operations before income
taxes and minority interests ....................... (3,967) (9,913) -- (13,880)
------- -------- --- --------
Benefit for income taxes ........................... 36 39 -- 75
------- -------- --- --------
Loss from continuing operations before minority
interests .......................................... (3,931) (9,874) -- (13,805)
------- -------- --- --------
Minority interests ................................. 125 3,979 -- 4,104
------- -------- --- --------
Net loss ........................................... $(3,806) $ (5,895) $-- $ (9,701)
======= ======== === ========
SIX MONTHS ENDED JUNE 30, 2002
--------------------------------------------------------
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
Revenues:
Grant revenue ................................... $ -- $ 413 $-- $ 413
Product revenue ................................. -- 274 -- 274
------- -------- --- --------
Total revenues ............................... -- 687 -- 687
------- -------- --- --------
Operating expenses:
Cost of sales ................................... -- 253 -- 253
Research and development expenses ............... -- 7,694 -- 7,694
Non-cash stock compensation expense - R&D ....... -- 1,113 -- 1,113
Marketing, general and administrative expenses .. 4,376 5,211 -- 9,587
Non-cash stock compensation expense - MG&A ...... 19 2,434 -- 2,453
Amortization of patents and goodwill ............ 930 198 -- 1,128
------- -------- --- --------
Total operating expenses ........................... 5,325 16,903 -- 22,228
------- -------- --- --------
Operating loss ..................................... (5,325) (16,216) -- (21,541)
------- -------- --- --------
Other expense (income):
Interest income ................................. 301 399 -- 700
Realized losses on short-term investments ....... (1,483) -- -- (1,483)
Unrealized losses on short-term investments ..... (477) -- -- (477)
Interest expense ................................ -- (121) -- (121)
Other income .................................... 112 -- -- 112
------- -------- --- --------
Total other expense (income) ................. (1,547) 278 -- (1,269)
------- -------- --- --------
Loss from continuing operations before income
taxes and minority interests ....................... (6,872) (15,938) -- (22,810)
------- -------- --- --------
Benefit for income taxes ........................... 65 79 -- 144
------- -------- --- --------
Loss from continuing operations before minority
interests .......................................... (6,807) (15,859) -- (22,666)
------- -------- --- --------
Minority interests ................................. 162 6,377 -- 6,539
------- -------- --- --------
Net loss ........................................... $(6,645) $ (9,482) $-- $(16,127)
======= ======== === ========
F-49
CONSOLIDATING STATEMENT OF OPERATIONS FOR THE THREE AND SIX MONTHS ENDED JUNE
30, 2001 (UNAUDITED)
THREE MONTHS ENDED JUNE 30, 2002
--------------------------------------------------------
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
Revenues:
License fee income .............................. $10,000 $ -- $-- $10,000
Grant revenue ................................... -- 91 -- 91
Product revenue ................................. -- -- -- --
------- -------- --- -------
Total revenues ............................... 10,000 91 -- 10,091
------- -------- --- -------
Operating expenses:
Research and development expenses ............... -- 2,651 -- 2,651
Non-cash stock compensation expense - R&D ....... -- 2,013 -- 2,013
Marketing, general and administrative expenses .. 5,803 3,747 -- 9,550
Non-cash stock compensation expense - MG&A ...... 10 5,166 -- 5,176
Amortization of patents and goodwill ............ 337 301 -- 638
------- -------- --- -------
Total operating expenses ........................... 6,150 13,878 -- 20,028
------- -------- --- -------
Operating income (loss) ............................ 3,850 (13,787) -- (9,937)
------- -------- --- -------
Other income (expense):
Interest income ................................. 471 558 -- 1,029
Equity in losses of affiliate ................... (55) -- -- (55)
Other income .................................... 57 -- -- 57
------- -------- --- -------
Total other income (expense) ................. 473 558 -- 1,031
------- -------- --- -------
Loss from continuing operations before income
taxes and minority interests ....................... 4,323 (13,229) -- (8,906)
------- -------- --- -------
(Provision) Benefit for income taxes ............... (267) 39 -- (228)
------- -------- --- -------
Loss from continuing operations before minority
interests .......................................... 4,056 (13,190) -- (9,134)
------- -------- --- -------
Minority interests ................................. (959) 5,321 -- 4,362
------- -------- --- -------
Net income (loss) .................................. $ 3,097 $ (7,869) $-- $(4,772)
======= ======== === =======
SIX MONTHS ENDED JUNE 30, 2002
--------------------------------------------------------
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
Revenues:
License fee income .............................. $12,440 $ -- $-- $ 12,440
Grant revenue ................................... -- 274 -- 274
Product revenue ................................. -- -- -- --
------- -------- --- --------
Total revenues ............................... 12,440 274 -- 12,714
------- -------- --- --------
Operating expenses:
Research and development expenses ............... -- 5,802 -- 5,802
Non-cash stock compensation expense - R&D ....... -- 4,411 -- 4,411
Marketing, general and administrative expenses .. 8,325 7,446 -- 15,771
Non-cash stock compensation expense - MG&A ...... 833 10,364 -- 11,197
Amortization of patents and goodwill ............ 672 599 -- 1,271
------- -------- --- --------
Total operating expenses ........................... 9,830 28,622 -- 38,452
------- -------- --- --------
Operating income (loss) ............................ 2,610 (28,348) -- (25,738)
------- -------- --- --------
Other income (expense):
Interest income ................................. 933 1,291 -- 2,224
Equity in losses of affiliate ................... (110) -- -- (110)
Other income .................................... 61 -- -- 61
------- -------- --- --------
Total other income (expense) ................. 884 1,291 -- 2,175
------- -------- --- --------
Loss from continuing operations before income
taxes and minority interests ....................... 3,494 (27,057) -- (23,563)
------- -------- --- --------
(Provision) Benefit for income taxes ............... (316) 75 -- (241)
------- -------- --- --------
Loss from continuing operations before minority
interests .......................................... 3,178 (26,982) -- (23,804)
------- -------- --- --------
Minority interests ................................. (1,286) 10,839 -- 9,553
------- -------- --- --------
Net income (loss) .................................. $ 1,892 $(16,143) $-- $(14,251)
======= ======== === ========
F-50
CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE SIX MONTHS ENDED JUNE 30, 2002
(UNAUDITED)
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Loss from continuing operations ................................... $(6,645) $ (9,482) $-- $(16,127)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization ................................ 1,007 866 -- 1,873
Minority interests in net loss ............................... (162) (6,377) -- (6,539)
Compensation expense relating to stock options and warrants .. 19 3,547 -- 3,566
Deferred tax benefit ......................................... (71) (79) -- (150)
Net sales of trading securities .............................. 3,133 -- -- 3,133
Unrealized loss on available-for-sale investments ............ 477 -- -- 477
Other ........................................................ 87 26 -- 113
Changes in assets and liabilities, net of effects of acquisitions:
Prepaid expenses, other receivables and other assets ......... (867) (697) -- (1,564)
Accounts payable, accrued expenses and other ................. 180 180 -- 360
Deferred revenues ............................................ -- 1,648 -- 1,648
------- -------- --- --------
Net cash used in operating activities of continuing operations .... (2,842) (10,368) -- (13,210)
Net cash used in operating activities of discontinued operations .. (415) -- -- (415)
------- -------- --- --------
Net cash used in operating activities ............................. (3,257) (10,368) -- (13,625)
------- -------- --- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment ................................ (70) (367) -- (437)
Sale of available-for-sale investments ............................ -- 9,877 -- 9,877
Purchase of available-for-sale investments ........................ -- (5,158) -- (5,158)
Other ............................................................. (100) -- -- (100)
------- -------- --- --------
Net cash (used in) provided by investing activities
from continuing operations ................................... (170) 4,352 -- 4,182
------- -------- --- --------
Net cash (used in) investing activities from
discontinued operations ...................................... (4) -- -- (4)
------- -------- --- --------
Net cash (used in) provided by investing activities ............... (174) 4,352 -- 4,178
------- -------- --- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net cash attributed to the Acacia Technologies group .............. (554) -- -- (554)
Net cash attributed to the CombiMatrix group ...................... -- 171 -- 171
------- -------- --- --------
Net cash (used in) provided by financing activities ............... (554) 171 -- (383)
------- -------- --- --------
Decrease in cash and cash equivalents ............................. (3,985) (5,845) -- (9,830)
Cash and cash equivalents, beginning .............................. 46,859 12,592 -- 59,451
Effect of exchange rate on cash ................................... -- 91 -- 91
------- -------- --- --------
Cash and cash equivalents, ending ................................. $42,874 $ 6,838 $-- $ 49,712
======= ======== === ========
F-51
CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE SIX MONTHS ENDED JUNE 30, 2001
(UNAUDITED)
ACACIA
TECHNOLOGIES COMBIMATRIX
GROUP GROUP ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Income (loss) from continuing operations .......................... $ 1,892 $(16,143) $-- $(14,251)
Adjustments to reconcile net income (loss) to net cash provided by
(used in) operating activities:
Depreciation and amortization ................................ 788 952 -- 1,740
Equity in losses of affiliate ................................ 110 -- -- 110
Minority interests in net income (loss) ...................... 1,286 (10,839) -- (9,553)
Compensation expense relating to stock options and warrants .. 833 14,775 -- 15,608
Deferred tax benefit ......................................... -- (79) -- (79)
Other ........................................................ 309 52 -- 361
Changes in assets and liabilities, net of effects of acquisitions:
Prepaid expenses, other receivables and other assets ......... (278) (644) -- (922)
Accounts payable, accrued expenses and other ................. 1,195 169 -- 1,364
-------- -------- --- --------
Net cash provided by (used in) operating activities of continuing
operations ........................................................ 6,135 (11,757) -- (5,622)
Net cash used in operating activities of discontinued operations .. (1,698) -- -- (1,698)
-------- -------- --- --------
Net cash provided by (used in) operating activities ............... 4,437 (11,757) -- (7,320)
-------- -------- --- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment ........................... (17) (2,537) -- (2,554)
Sale of available-for-sale investments ....................... -- 11,923 -- 11,923
Purchase of available-for-sale investments ................... (11,120) -- -- (11,120)
Purchase of common stock from minority stockholders
of subsidiaries .............................................. (584) -- -- (584)
-------- -------- --- --------
Net cash (used in) provided by investing activities of continuing
operations ........................................................ (11,721) 9,386 -- (2,335)
Net cash provided by investing activities of discontinued
operations ................................................... 137 -- -- 137
-------- -------- --- --------
Net cash (used in) provided by investing activities ............... (11,584) 9,386 -- (2,198)
-------- -------- --- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net cash attributed to the Acacia Technologies group ......... 18,012 -- -- 18,012
Net cash attributed to the CombiMatrix group ................. -- 3,263 -- 3,263
-------- -------- --- --------
Net cash provided by financing activities ......................... 18,012 3,263 -- 21,275
-------- -------- --- --------
Increase in cash and cash equivalents ............................. 10,865 892 -- 11,757
Cash and cash equivalents, beginning .............................. 29,605 6,558 -- 36,163
-------- -------- --- --------
Cash and cash equivalents, ending ................................. $ 40,470 $ 7,450 $-- $ 47,920
======== ======== === ========
F-52
COMBIMATRIX CORPORATION
(A DEVELOPMENT STAGE COMPANY)
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of
CombiMatrix Corporation
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of operations, of stockholders' equity and
comprehensive loss and of cash flows present fairly, in all material respects,
the financial position of CombiMatrix Corporation and its subsidiaries (a
development stage company) at December 31, 2000 and 2001, and the results of
their operations and their cash flows for each of the three years in the period
ended December 31, 2001 and the period from inception (October 4, 1995) to
December 31, 2001 in conformity with accounting principles generally accepted in
the United States of America. These financial statements are the responsibility
of the Company's management; our responsibility is to express an opinion on
these financial statements based on our audits. We conducted our audits of these
statements in accordance with auditing standards generally accepted in the
United States of America, which require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements, assessing
the accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
As discussed in Note 13, Acacia Research Corporation has a majority
ownership in the Company, has entered into transactions with the Company and has
the ability to influence the strategic direction of the Company.
/s/ PricewaterhouseCoopers LLP
Seattle, Washington
January 25, 2002, except as to Note 14,
which is as of April 25, 2002
F-53
COMBIMATRIX CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
AT DECEMBER 31, AT JUNE 30,
-------- -------- -----------
2001 2000 2002
-------- -------- -----------
(UNAUDITED)
ASSETS
Current assets
Cash and cash equivalents ........................................................ $ 7,868 $ 3,550 $ 6,838
Short-term investments ........................................................... 20,187 39,792 15,701
Interest receivable .............................................................. 551 808 234
Accounts receivable and employee advances ........................................ 143 17 1,085
Inventory ........................................................................ 464 109 284
Prepaid expenses and other ....................................................... 205 94 226
Prepaid public offering costs .................................................... -- 918 --
-------- -------- --------
Total current assets .......................................................... 29,418 45,288 24,368
Investment in joint venture ......................................................... 1,376 994 --
Property and equipment, net ......................................................... 4,548 2,857 4,260
Deposits and other assets ........................................................... 94 17 94
-------- -------- --------
Total assets .................................................................. $ 35,436 $ 49,156 $ 28,722
======== ======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable ................................................................. $ 623 $ 2,224 $ 1,112
Accrued expenses ................................................................. 2,191 658 1,841
Payable to Acacia Research Corporation ........................................... 22 70 88
Deferred revenue ................................................................. 5,588 -- 7,342
Current portion of capital lease obligation ...................................... 934 -- 976
-------- -------- --------
Total current liabilities ..................................................... 9,358 2,952 11,359
-------- -------- --------
Deferred revenue ................................................................. 372 -- 266
Capital lease obligation, net of current portion ................................. 1,845 -- 1,346
-------- -------- --------
Total liabilities ............................................................. 11,575 2,952 12,971
-------- -------- --------
Minority interest in consolidated subsidiary ........................................ 142 -- 733
Commitments and contingencies (Note 10)
Stockholders' equity
Preferred stock, $0.001 par value, 50,000,000 shares authorized at 2001 and 2000,
1,000,000 shares authorized at 2002; none issued and outstanding .............. -- -- --
Common stock $0.001 par value, 300,000,000 shares authorized at 2001 and 2000,
30,000,000 at 2002; 18,691,723, 18,437,703 and 18,934,205 shares issued and
outstanding .................................................................. 19 18 19
Additional paid-in capital ....................................................... 105,409 114,825 106,538
Deferred stock compensation ...................................................... (12,766) (44,064) (7,602)
Accumulated other comprehensive (loss) income .................................... (8) 132 --
Deficit accumulated during the development stage ................................. (68,935) (24,707) (83,937)
-------- -------- --------
Total stockholders' equity .................................................... 23,719 46,204 15,018
-------- -------- --------
Total liabilities and stockholders' equity .................................... $ 35,436 $ 49,156 $ 28,722
======== ======== ========
The accompanying notes are an integral part of these consolidated financial
statements.
F-54
COMBIMATRIX CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT SHARE DATA)
FOR THE
PERIOD FROM
INCEPTION
(OCTOBER 4,
FOR THE YEARS ENDED DECEMBER 31, 1995) TO
-------------------------------------- JUNE 30,
2001 2000 1999 2002
----------- ----------- ---------- -----------
(UNAUDITED)
Revenues
Grants and contracts ........................ $ 456 $ 17 $ 143 $ 1,029
Products .................................... -- -- -- 274
----------- ----------- ---------- --------
Total revenues ........................... 456 17 143 1,303
----------- ----------- ---------- --------
Operating expenses
Cost of revenues ............................ -- -- -- 253
Research and development* ................... 11,655 6,276 2,379 30,666
Marketing, general and administrative* ...... 14,939 4,698 78 24,219
Amortization of deferred stock compensation.. 19,963 9,709 36 33,391
----------- ----------- ---------- --------
Total operating expenses ................. 46,557 20,683 2,493 88,529
----------- ----------- ---------- --------
Loss from operations ........................... (46,101) (20,666) (2,350) (87,226)
Interest income ................................ 1,976 1,644 43 4,132
Interest expense ............................... (65) -- (213) (568)
Loss on investment in joint venture ............ (54) (6) -- (75)
Minority interest in net loss of subsidiary .... 16 -- -- 46
----------- ----------- ---------- --------
Net loss before cumulative effect of accounting
change ...................................... (44,228) (19,028) (2,520) (83,691)
Cumulative effect of accounting change ......... -- (246) -- (246)
----------- ----------- ---------- --------
Net loss ....................................... $ (44,228) $ (19,274) $ (2,520) $(83,937)
=========== =========== ========== ========
Basic and diluted net loss per share before
cumulative effect of accounting change ...... $ (2.37) $ (1.25) $ (.29)
Cumulative effect of accounting change ......... -- (.01) --
----------- ----------- ----------
Basic and diluted net loss per share ........... $ (2.37) $ (1.26) $ (.29)
=========== =========== ==========
Weighted-average shares used in computing basic
and diluted net loss per share .............. 18,639,953 15,254,862 8,763,749
=========== =========== ==========
*Excludes charges for amortization of deferred
stock compensation as follows:
Research and development .................... $ 7,183 $ 3,189 $ 34 $ 11,693
Marketing, general and administrative ....... 12,780 6,520 2 21,698
----------- ----------- ---------- ---------
$ 19,963 $ 9,709 $ 36 $ 33,391
=========== =========== ========== =========
The accompanying notes are an integral part of these consolidated financial
statements.
F-55
COMBIMATRIX CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF OPERATIONS, CONTINUED
(IN THOUSANDS, EXCEPT SHARE DATA)
FOR THE THREE MONTHS ENDED FOR THE SIX MONTHS ENDED
JUNE 30, JUNE 30,
-------------------------- -------------------------
2002 2001 2002 2001
----------- ------------ ----------- -----------
(UNAUDITED) (UNAUDITED)
Revenues
Grants and contracts ...................... $ 164 $ 91 $ 413 $ 274
Products .................................. 274 -- 274 --
----------- ----------- ----------- -----------
Total revenues ......................... 438 91 687 274
----------- ----------- ----------- -----------
Operating expenses
Cost of revenues .......................... 253 -- 253 --
Research and development* ................. 5,026 2,590 7,694 5,803
Marketing, general and administrative* .... 2,537 3,316 4,499 6,385
Amortization of deferred stock
compensation ........................... 2,117 7,178 3,509 14,774
----------- ----------- ----------- -----------
Total operating expenses ............... 9,933 13,084 15,955 26,962
----------- ----------- ----------- -----------
Loss from operations ......................... (9,495) (12,993) (15,268) (26,688)
Interest income .............................. 137 521 366 1,216
Interest expense ............................. (55) -- (115) --
Loss on investment in joint venture .......... (4) (16) (15) (29)
Minority interest in net loss of subsidiary .. 18 -- 30 --
----------- ----------- ----------- -----------
Net loss before cumulative effect of
accounting change ......................... (9,399) (12,488) (15,002) (25,501)
Cumulative effect of accounting change ....... -- -- -- --
----------- ----------- ----------- -----------
Net loss ..................................... $ (9,399) $ (12,488) $ (15,002) $ (25,501)
=========== =========== =========== ===========
Basic and diluted net loss per share
before cumulative effect of accounting
change .................................... $ (.50) $ (.67) $ (.80) $ (1.37)
Cumulative effect of accounting change ....... -- -- -- --
----------- ----------- ----------- -----------
Basic and diluted net loss per share ......... $ (.50) $ (.67) $ (.80) $ (1.37)
=========== =========== =========== ===========
Weighted-average shares used in computing
basic and diluted net loss per share ...... 18,884,495 18,666,343 18,806,678 18,599,634
=========== =========== =========== ===========
*Excludes charges for amortization of
deferred stock compensation as
follows:
Research and development .................. $ 692 $ 2,013 $ 1,113 $ 4,409
Marketing, general and administrative ..... 1,425 5,165 2,396 10,365
----------- ----------- ----------- -----------
$ 2,117 $ 7,178 $ 3,509 $ 14,774
=========== =========== =========== ===========
The accompanying notes are an integral part of these consolidated financial
statements.
F-56
COMBIMATRIX CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY AND COMPREHENSIVE LOSS
(IN THOUSANDS, EXCEPT SHARE DATA)
ADDITIONAL
PAID-IN DEFERRED STOCK
COMMON STOCK CAPITAL COMPENSATION
---------------- ---------- --------------
Balances at inception (October 4, 1995) ................ -- $-- $ -- $ --
Common stock issued in April 1996 to founders at $0.021
per share .......................................... 7,000,000 7 140
Common stock issued in May 1996 at $1.00 per share,
net of offering costs .............................. 566,470 1 512 --
Common stock issued in March 1997 in connection with
stock option exercises at $1.00 per share .......... 25,000 -- 25 --
Common stock issued in June and July 1997 at $2.00 per
share, net of offering costs ....................... 343,500 -- 656 --
Issuance of common stock warrants in March 1998 in
connection with the issuance of 6% unsecured
subordinated promissory notes ...................... -- -- 246 --
Common stock issued in August 1999 at $2.00 per share,
net of offering costs .............................. 2,010,100 2 3,842 --
Common stock issued in December 1999 in connection
with conversion of 6% unsecured subordinated
promissory notes ................................... 725,000 1 1,290 --
Deferred stock compensation from inception (October 4,
1995) to December 31, 1999 ......................... -- -- 214 (214)
Amortization of deferred stock compensation from
inception (October 4, 1995) to December 31, 1999 ... -- -- -- 210
Imputed fees for management services from inception
0(October 4, 1995) to December 31, 1999 ............ -- -- 48 --
Net loss for the period from inception (October 4,
1995) to December 31, 1999 ......................... -- -- -- --
---------- --- -------- --------
Balances, December 31, 1999 ............................ 10,670,070 11 6,973 (4)
Common stock issued in March 2000 at $5.00 per share,
net of offering costs .............................. 3,500,000 3 17,134 --
Common stock issued in connection with stock option
exercise at $2.00 per share ........................ 8,750 -- 18 --
Common stock issued in connection with stock warrant
exercise at $2.00 per share ........................ 44,550 -- 116 --
Common stock issued in June 2000 at $2.00 per share
(includes compensation expense of $210) ............ 125,000 -- 460 --
Common stock issued in July 2000 at $5.00 and $6.50
per share (includes compensation expense of $76) ... 56,000 -- 413 --
Common stock issued in August 2000 at $9.00 per share,
net of offering costs .............................. 4,033,333 4 35,696 --
Issuance of stock options to employee of parent ........ -- -- 1,150 --
Dividend to parent ..................................... -- -- (1,150) --
Cumulative effect of accounting change ................. -- -- 246 --
Deferred stock compensation ............................ -- -- 53,769 (53,769)
Amortization of deferred stock compensation ............ -- -- -- 9,709
Net loss ............................................... -- -- -- --
Unrealized gain on short-term investments .............. -- -- -- --
Comprehensive loss ..................................... -- -- -- --
---------- --- -------- --------
Balances, December 31, 2000 ............................ 18,437,703 18 114,825 (44,064)
Common stock issued in connection with stock warrant
exercise at $2.00 per share ........................ 134,300 -- 272 --
Common stock issued in connection with stock option
exercise at $1.00 to $5.00 per share ............... 119,720 1 261 --
Change of interest in consolidated subsidiary .......... -- -- 951 --
Change of interest in investment in joint venture ...... -- -- 435 --
Stock option modifications ............................. -- -- 1,156 --
Stock option cancellations, net of deferred stock
compensation ....................................... -- -- (12,491) 12,491
Amortization of deferred stock compensation ............ -- -- -- 18,807
Net loss ............................................... -- -- -- --
Unrealized loss on short-term investments .............. -- -- -- --
Foreign currency translation ........................... -- -- -- --
Comprehensive loss ..................................... -- -- -- --
---------- --- -------- --------
Balances, December 31, 2001 ............................ 18,691,723 19 105,409 (12,766)
For the six months ended June 30, 2002 (Unaudited):
Common stock issued in connection with stock option
exercise at $1.00 to $5.00 per share ............... 61,500 -- 78 --
Stock option granted to consultant ..................... -- -- 38 --
Stock option modifications ............................. -- -- 100 --
Acquisition of Advanced Material Sciences .............. 180,982 -- 2,668 --
Stock option cancellations, net of deferred
stock compensation ................................. -- -- (1,755) 1,755
Amortization of deferred stock compensation ............ -- -- -- 3,409
Net loss ............................................... -- -- -- --
Unrealized loss on short-term investments .............. -- -- -- --
Foreign currency translation ........................... -- -- -- --
Comprehensive loss ..................................... -- -- -- --
---------- --- -------- --------
Balances, June 30, 2002 (unaudited) .................... 18,934,205 $19 $106,538 $ (7,602)
========== === ======== ========
DEFICIT
ACCUMULATED ACCUMULATED
OTHER DURING THE TOTAL
COMPREHENSIVE DEVELOPMENT STOCKHOLDERS'
INCOME (LOSS) STAGE EQUITY
------------- ----------- -------------
Balances at inception (October 4, 1995) ................ $ -- $ -- $ --
Common stock issued in April 1996 to founders at $0.021
per share .......................................... 147
Common stock issued in May 1996 at $1.00 per share,
net of offering costs .............................. -- -- 513
Common stock issued in March 1997 in connection with
stock option exercises at $1.00 per share .......... -- -- 25
Common stock issued in June and July 1997 at $2.00 per
share, net of offering costs ....................... -- -- 656
Issuance of common stock warrants in March 1998 in
connection with the issuance of 6% unsecured
subordinated promissory notes ...................... -- -- 246
Common stock issued in August 1999 at $2.00 per share,
net of offering costs .............................. -- -- 3,844
Common stock issued in December 1999 in connection
with conversion of 6% unsecured subordinated
promissory notes ................................... -- -- 1,291
Deferred stock compensation from inception (October 4,
1995) to December 31, 1999 ......................... -- -- --
Amortization of deferred stock compensation from
inception (October 4, 1995) to December 31, 1999 ... -- -- 210
Imputed fees for management services from inception
0(October 4, 1995) to December 31, 1999 ............ -- -- 48
Net loss for the period from inception (October 4,
1995) to December 31, 1999 ......................... -- (5,433) (5,433)
----- -------- --------
Balances, December 31, 1999 ............................ -- (5,433) 1,547
Common stock issued in March 2000 at $5.00 per share,
net of offering costs .............................. -- -- 17,137
Common stock issued in connection with stock option
exercise at $2.00 per share ........................ -- -- 18
Common stock issued in connection with stock warrant
exercise at $2.00 per share ........................ -- -- 116
Common stock issued in June 2000 at $2.00 per share
(includes compensation expense of $210) ............ -- -- 460
Common stock issued in July 2000 at $5.00 and $6.50
per share (includes compensation expense of $76) ... -- -- 413
Common stock issued in August 2000 at $9.00 per share,
net of offering costs .............................. -- -- 35,700
Issuance of stock options to employee of parent ........ -- -- 1,150
Dividend to parent ..................................... -- -- (1,150)
Cumulative effect of accounting change ................. -- -- 246
Deferred stock compensation ............................ -- -- --
Amortization of deferred stock compensation ............ -- -- 9,709
Net loss ............................................... -- (19,274) (19,274)
Unrealized gain on short-term investments .............. 132 -- 132
--------
Comprehensive loss ..................................... -- -- (19,142)
----- -------- --------
Balances, December 31, 2000 ............................ 132 (24,707) 46,204
Common stock issued in connection with stock warrant
exercise at $2.00 per share ........................ -- -- 272
Common stock issued in connection with stock option
exercise at $1.00 to $5.00 per share ............... -- -- 262
Change of interest in consolidated subsidiary .......... -- -- 951
Change of interest in investment in joint venture ...... -- -- 435
Stock option modifications ............................. -- -- 1,156
Stock option cancellations, net of deferred stock
compensation ....................................... -- -- --
Amortization of deferred stock compensation ............ -- -- 18,807
Net loss ............................................... -- (44,228) (44,228)
Unrealized loss on short-term investments .............. (15) -- (15)
Foreign currency translation ........................... (125) -- (125)
--------
Comprehensive loss ..................................... -- -- (44,368)
----- -------- --------
Balances, December 31, 2001 ............................ (8) (68,935) 23,719
For the six months ended June 30, 2002 (Unaudited):
Common stock issued in connection with stock option
exercise at $1.00 to $5.00 per share ................ -- -- 78
Stock option granted to consultant ..................... -- -- 38
Stock option modifications ............................. -- -- 100
Acquisition of Advanced Material Sciences .............. -- -- 2,668
Stock option cancellations, net of deferred
stock compensation ................................. -- -- --
Amortization of deferred stock compensation ............ -- -- 3,409
Net loss ............................................... -- (15,002) (15,002)
Unrealized loss on short-term investments .............. (83) -- (83)
Foreign currency translation ........................... 91 -- 91
--------
Comprehensive loss ..................................... -- -- (14,994)
----- -------- --------
Balances, June 30, 2002 (unaudited) .................... $ -- $(83,937) $ 15,018
===== ======== ========
The accompanying notes are an integral part of these consolidated financial
statements.
F-57
COMBIMATRIX CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
FOR THE
PERIOD FROM
INCEPTION
(OCTOBER 4, FOR THE SIX MONTHS
FOR THE YEARS ENDED DECEMBER 31, 1995) TO ENDED JUNE 30,
-------------------------------- JUNE 30, -------------------
2001 2000 1999 2002 2002 2001
-------- -------- ------- ----------- -------- --------
(UNAUDITED) (UNAUDITED)
OPERATING ACTIVITIES
Net loss ................................................... $(44,228) $(19,274) $(2,520) $(83,937) $(15,002) $(25,501)
Adjustments to reconcile net loss to net cash used in
operating activities
Cumulative effect of accounting change .............. -- 246 -- 246 -- --
Depreciation and amortization ....................... 955 266 52 2,032 668 353
Amortization of deferred stock compensation ......... 19,963 9,709 36 33,391 3,509 14,774
Compensation for common stock purchased below fair
market value .................................... -- 286 -- 324 38 --
Imputed fees for management services ................ -- -- 33 48 -- --
Write-off of prepaid public offering costs .......... 1,353 -- -- 1,353 -- --
Accretion of discount on short-term investments ..... -- (29) -- (29) -- --
Loss on investment in joint venture ................. 54 6 -- 75 15 29
Loss on disposal of property and equipment .......... 123 -- -- 151 28 52
Minority interest in loss of subsidiary ............. (16) -- -- (46) (30) --
Amortization of discount on note payable and debt
issuance costs .................................. -- -- 128 242 -- --
Changes in operating assets and liabilities
Interest receivable ............................. 257 (808) -- (235) 316 358
Accounts receivable and employee advances ....... (126) 11 (27) (101) 42 6
Inventory ....................................... (285) (109) -- (332) 132 (457)
Prepaid expenses and other ...................... (111) (88) 16 (226) (21) (168)
Deposits and other assets ....................... (77) 14 -- (97) (3) (5)
Accounts payable ................................ (684) 1,280 (33) 1,040 417 (6)
Accrued expenses ................................ 1,533 550 (2) 1,844 (347) 244
Payable to Acacia Research Corporation .......... (48) 26 (42) 70 48 (57)
Deferred revenue ................................ 5,960 -- -- 6,701 741 --
-------- -------- ------- -------- -------- --------
Net cash used in operating activities ........ (15,377) (7,914) (2,359) (37,486) (9,449) (10,378)
-------- -------- ------- -------- -------- --------
INVESTING ACTIVITIES
Purchases of property and equipment ........................ (3,778) (2,004) (88) (6,595) (467) (2,557)
Cash from sale of property and equipment ................... 22 -- -- 122 100 20
Cash acquired from acquisition of Advanced Material
Sciences ................................................ -- -- -- 4,672 4,672 --
Investment in joint venture ................................ -- (1,000) -- (1,000) -- --
Purchase of short-term investments ......................... (30,765) (43,606) -- (79,529) (5,158) --
Sale of short-term investments ............................. 50,354 3,975 -- 63,889 9,560 11,922
-------- -------- ------- -------- -------- --------
Net cash provided by (used in) investing
activities ............................... 15,833 (42,635) (88) (18,441) 8,707 9,385
-------- -------- ------- -------- -------- --------
FINANCING ACTIVITIES
Prepaid public offering costs .............................. (435) (918) -- (1,353) -- (364)
Proceeds from capital lease obligation and notes payable ... 3,000 -- -- 4,450 -- --
Advances from Acacia Research Corporation .................. -- -- 1,260 4,508 -- --
Repayments to Acacia Research Corporation .................. -- -- (4,270) (4,393) -- --
Repayment of note payable .................................. (221) -- -- (728) (457) --
Debt issuance costs ........................................ -- -- -- (149) -- (23)
Proceeds from issuances of common stock, net of costs ...... 534 53,558 3,844 59,355 78 460
Proceeds from issuance of common stock of subsidiary ....... 1,109 -- -- 1,109 -- --
-------- -------- ------- -------- -------- --------
Net cash provided by (used in) financing
activities ............................... 3,987 52,640 834 62,799 (379) 73
-------- -------- ------- -------- -------- --------
Net (decrease) increase in cash and cash equivalents ....... 4,443 2,091 (1,613) 6,872 (1,121) (920)
Cash and cash equivalents, beginning of period ............. 3,550 1,459 3,072 -- 7,868 3,550
Effect of exchange rate on cash ............................ (125) -- -- (34) 91 --
-------- -------- ------- -------- -------- --------
Cash and cash equivalents, end of period ................... $ 7,868 $ 3,550 $ 1,459 $ 6,838 $ 6,838 $ 2,630
======== ======== ======= ======== ======== ========
SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND
FINANCING ACTIVITIES
Conversion of promissory notes to common stock ............. $ -- $ -- $ 1,291 $ 1,291 $ -- $ --
Fair value of options and warrants issued for services ..... $ -- $ 1,239 $ 36 $ 1,486 $ -- $ --
Fixed assets purchased with accounts payable ............... $ (917) $ 917 $ -- $ -- $ -- $ --
Cash paid for interest ..................................... $ 42 $ -- $ -- $ 155 $ 113 $ --
The accompanying notes are an integral part of these consolidated financial
statements.
F-58
COMBIMATRIX CORPORATION
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. THE COMPANY AND NATURE OF OPERATIONS
CombiMatrix Corporation (the "Company"), a Delaware corporation, was
incorporated on October 4, 1995. The Company is a development stage company
engaged in research and development to commercialize its proprietary technology
to, among other things, rapidly synthesize or immobilize genetic material,
building blocks of proteins or small molecules on a modified semiconductor chip,
known as biochips or microarrays.
As of December 31, 2001, the Company was 57.7% owned by Acacia Research
Corporation ("Acacia"), based in Pasadena, California. The Company's financial
statements include all charges to reflect its cost of doing business, including
allocated expenses from Acacia. These allocated expenses primarily relate to
director and officer insurance.
In May 2001, the Company formed CombiMatrix International Holdings
Corporation ("Holdings"), a Delaware corporation and a wholly owned subsidiary
of the Company. Additionally, the Company formed CombiMatrix K.K. (the "KK"), a
Japanese corporation, which was a wholly owned subsidiary of Holdings at
formation. In October 2001, the KK sold 10% of its voting common stock to an
unrelated company. The KK, which is based in Tokyo, Japan, will focus on
development and licensing opportunities for the Company's microarray technology
with pharmaceutical and biotechnology companies in the Asian market.
Since inception, the Company has been in the development stage and its
activities have principally consisted of obtaining financing, recruiting
personnel, and conducting research and development. The Company is working on
several long-term development projects that involve experimental technology and
may require several years and substantial expenditures to complete. No revenues
have been recognized to date from the Company's planned principal operations.
Management believes that existing cash and cash equivalents and short-term
investments are adequate to fund the Company's operations through December 31,
2002. However, the Company's ability to meet its business objectives is
dependent upon its ability to raise additional financing, substantiate its
technology and ultimately to fund its operations from revenues.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of consolidation
The consolidated financial statements include the accounts of the Company
and its consolidated subsidiaries in which the Company has a greater than 50%
ownership interest. Investments in business entities in which the Company does
not have control, but has the ability to exercise significant influence over
operating and financial policies, are accounted for under the equity method. All
intercompany accounts and transactions have been eliminated.
Foreign currency translation
The financial statements of the KK, whose functional currency is the
Japanese yen, have been translated into U.S. dollars. Accordingly, all assets
and liabilities of the KK have been translated at the year-end exchange rate.
All revenues and expenses of the KK have been translated at average exchange
rates for the period. The resulting translation adjustment has been reported as
a component of comprehensive loss.
Cash and cash equivalents
The Company considers all highly liquid investments with purchased
maturities of three months or less to be cash and cash equivalents.
Short-term investments
F-59
Short-term investments are diversified among high-credit quality securities
in accordance with the Company's investment policy. Investments in securities
with maturities of less than one year, or for which management's intent is to
use the investments to fund current operations, are classified as short-term
investments. The Company classifies its securities as available-for-sale, which
are reported at fair market value, with the related unrealized gains and losses
included as a separate component in stockholders' equity. Realized gains and
losses and declines in value of securities judged to be other than temporary are
included in other income (expense). The fair value of the Company's investments
is based on quoted market prices. The carrying value of those investments
approximates their fair value. Realized and unrealized gains and losses are
based on the specific identification method.
The cost of debt securities is adjusted for amortization of premiums and
accretion of discounts to maturity. Such amortization is included in interest
income (expense). Interest and dividends on all securities are included in
interest income.
Concentration of credit risk
Cash and cash equivalents are invested in deposits with financial
institutions, which may exceed federally insured limits. The Company has not
experienced any losses on its deposits of cash and cash equivalents.
Fair value of financial instruments
The recorded amounts of certain financial instruments, including cash and
cash equivalents, short-term investments, interest receivable, accounts
receivable and employee advances, accounts payable and accrued expenses,
approximate fair value due to their relatively short maturities.
Inventory
Inventory, which consists primarily of raw materials to be used in the
production of the Company's microarray products, is stated at the lower of cost
or market using the first-in, first-out method.
Property and equipment
Property and equipment is recorded at cost. Depreciation is provided over
the estimated useful lives of the depreciable assets, ranging from two to ten
years, using the straight-line method. Leasehold improvements are amortized over
the shorter of the applicable lease or useful life of the asset. Certain
leasehold improvements, furniture and equipment held under capital leases are
classified as property and equipment and are amortized over their useful lives
using the straight-line method. Lease amortization is included in depreciation
expense. Additions and improvements that increase the value or extend the life
of an asset are capitalized. Maintenance and repairs are expensed as incurred.
Disposals are removed at cost less accumulated depreciation or amortization and
any gain or loss from disposition is reflected in the statement of operations in
the year of disposition.
Prepaid public offering costs
On November 14, 2000, the Company's Board of Directors authorized
management to file a registration statement on Form S-1 with the Securities and
Exchange Commission ("SEC") relating to an initial public offering of the
Company's common stock. The registration statement was filed with the SEC on
November 22, 2000. At December 31, 2000, the Company had capitalized $918,000 of
prepaid public offering costs. During 2001, the Company capitalized an
additional $435,000 of prepaid public offering costs. During the fourth quarter
of 2001, management decided to indefinitely delay the Company's initial public
offering. As a result, the Company expensed prepaid offering costs totaling
approximately $1.35 million during the year ended December 31, 2001. This charge
has been included as component of marketing, general and administrative expense.
F-60
Impairment of long-lived assets
The Company assesses the impairment of long-lived assets whenever events or
changes in circumstances indicate that the carrying amount of an asset might not
be recoverable. When such an event occurs, management determines whether there
has been an impairment by comparing the anticipated undiscounted future net cash
flows of the asset to its carrying value. The Company has not recognized any
impairment losses through December 31, 2001.
Income taxes
The Company recognizes deferred tax assets and liabilities for the expected
future tax consequences of events that have been included in the financial
statements or tax returns. Deferred tax assets and liabilities are determined
based on the difference between the financial statement and tax bases of assets
and liabilities using enacted tax rates in effect for the year in which the
differences are expected to reverse. A valuation allowance is recorded when it
is more likely than not the net deferred tax asset will not be recovered.
Revenue recognition
Revenues from the sale of products and services are recognized when
persuasive evidence of an arrangement exists, delivery has occurred or services
have been rendered, the fees are fixed and determinable and collectibility is
reasonably assured.
All of the revenue recognized since inception of the Company has been from
government grants and contracts. Revenues from government grants and contracts
are recognized as the related services are performed and when the services have
been approved by the grantor and collectibility is reasonably assured. Amounts
recognized are limited to amounts due from customers based upon the contract or
grant terms.
Revenues from multiple-element arrangements involving license fees,
up-front payments and milestone payments, which are received or billable in
connection with other rights and services that represent continuing obligations
of the Company, are deferred until all of the multiple elements have been
delivered or the Company has established objective and verifiable evidence of
the fair value of the undelivered elements. Deferred revenue arises from
payments received in advance of the culmination of the earnings process.
Deferred revenue expected to be recognized within the next twelve months is
classified as a current liability.
Software development costs
The costs of software developed for use in the Company's products is
expensed as incurred until technological feasibility for the software has been
established. Software development costs incurred to date have been classified as
research and development expenses.
The costs of software developed or obtained for internal use is expensed as
incurred until certain capitalization criteria have been met. Capitalized
software development costs are reported as a component of property and
equipment. To date, such costs have not been significant.
Research and development expenses
Research and development expenses consist of costs incurred for direct and
overhead-related research expenses and are expensed as incurred. Costs to
acquire technologies which are utilized in research and development and which
have no alternative future use are expensed when incurred. Costs related to
filing and pursuing patent applications are expensed as incurred, as
recoverability of such expenditures is uncertain.
Stock-based compensation
The Company accounts for stock-based employee compensation arrangements in
accordance with the provisions of Accounting Principles Board ("APB") Opinion
No. 25, "Accounting for Stock Issued to Employees," as interpreted by Financial
Accounting Standards Board Interpretation ("FIN") No. 44 and related
interpretations, and complies with the disclosure provisions of Statement of
Financial Accounting Standards ("SFAS") No. 123,
F-61
"Accounting for Stock-Based Compensation." Under APB Opinion No. 25 and related
interpretations, compensation expense is based on the difference, if any,
between the fair value of the Company's stock and the exercise price of the
option as of the date of grant. These differences are deferred and amortized on
an accelerated basis over the vesting period of the individual option awards
using the amortization method prescribed in FIN No. 28, "Accounting for Stock
Appreciation Rights and Other Variable Stock Option or Award Plans."
The Company accounts for equity instruments issued to nonemployees in
accordance with the provisions of SFAS No. 123 and Emerging Issues Task Force
("EITF") Issue No. 96-18, "Accounting for Equity Instruments that are Issued to
Other Than Employees for Acquiring or in Conjunction with Selling Goods or
Services" and related interpretations.
Net loss per share
Basic and diluted net loss per share have been computed using the
weighted-average number of shares of common stock outstanding during the period.
The Company has excluded all outstanding options and warrants to purchase common
stock from the calculation of diluted net loss per share, as such securities are
antidilutive for all periods presented. These antidilutive securities are as
follows:
YEARS ENDED DECEMBER 31,
-------------------------------
2001 2000 1999
--------- --------- -------
Options .................................... 3,495,611 4,366,721 624,250
Warrants ................................... 38,050 172,350 173,850
--------- --------- -------
3,533,661 4,539,071 798,100
========= ========= =======
Comprehensive income (loss)
The Company has adopted the provisions of SFAS No. 130, "Reporting
Comprehensive Income," which requires the disclosure of comprehensive income
(loss) and its components in a complete set of general-purpose financial
statements. Comprehensive income (loss) is defined as the change in equity from
transactions and other events and circumstances other than those resulting from
investments by owners and distributions to owners. Other comprehensive income
(loss) consists of unrealized gains and losses on investments and foreign
currency translation adjustments.
Segments
The Company has adopted SFAS No. 131, "Disclosure about Segments of an
Enterprise and Related Information," which establishes annual and interim
reporting standards for an enterprise's operating segments and related
disclosures about its products, services, geographic areas and major customers.
Management has determined that the Company operates in one segment.
Use of estimates
The preparation of consolidated financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and that effect the reported amounts of revenues and expenses during
the reporting period. Actual results could differ from those estimates.
Certain risks and uncertainties
The Company is in the development stage and its planned products and
services will be concentrated in a highly competitive market that is
characterized by rapid technological advances, frequent changes in customer
requirements and evolving regulatory requirements and industry standards.
Failure to anticipate or respond adequately to technological advances, changes
in customer requirements, changes in regulatory requirements or
F-62
industry standards, or any significant delays in the development or introduction
of planned products or services, could have a material adverse effect on the
Company's business and operating results.
Recent accounting pronouncements
In June 1998, the Financial Accounting Standards Board ("FASB") issued SFAS
No. 133, "Accounting for Derivative Financial Instruments and for Hedging
Activities," which provides a comprehensive and consistent standard for the
recognition and measurement of derivatives and hedging activities. SFAS No. 133
is effective for fiscal years beginning after June 15, 2000 and it did not have
an impact on the Company's results of operations or financial condition when
adopted, as the Company holds no derivative financial instruments and does not
currently engage in hedging activities.
In June 2001, the FASB issued SFAS No. 141, "Business Combinations" and
SFAS No. 142, "Goodwill and Other Intangible Assets." SFAS No. 141 eliminated
the pooling-of-interests method of accounting for business combinations. As a
result, all business combinations must now be accounted for using the purchase
method. The provisions of this statement apply to all business combinations
initiated after June 30, 2001. SFAS No. 142 requires that goodwill may no longer
be amortized to earnings, but instead must be reviewed for impairment
periodically. The Company will be required to comply with the provisions of this
statement beginning January 1, 2002. Management does not believe that the
adoption of these statements will have a significant impact on the Company's
financial position or results of operations.
In August 2001, the FASB issued SFAS No. 144, "Accounting for the
Impairment or Disposal of Long-Lived Assets," which supersedes SFAS No. 121.
This Statement also supersedes the accounting and reporting provisions of APB
Opinion No. 30, "Reporting the Results of Operations - Reporting the Effects of
Disposal of a Segment of a Business, and Extraordinary, Unusual and Infrequently
Occurring Events and Transactions," for segments of a business to be disposed
of. This Statement also amends Accounting Research Bulletin No. 51,
"Consolidated Financial Statements," to eliminate the exception to consolidation
for a temporarily controlled subsidiary. The adoption date for SFAS No. 144 will
be January 1, 2002. Management does not believe the adoption of this
pronouncement will have a significant impact on the Company's financial position
or results of operations.
Reclassifications
Certain prior year amounts have been reclassified to conform to the current
year presentation.
3. SHORT-TERM INVESTMENTS
Short-term investments consists of the following (in thousands):
GROSS GROSS
AMORTIZED UNREALIZED UNREALIZED
COST GAINS LOSSES FAIR VALUE
--------- ---------- ---------- ----------
At December 31, 2001
Available-for-sale securities
Corporate notes and bonds ...... $14,427 $172 $(117) $14,482
U.S. government securities ..... 5,643 197 (135) 5,705
------- ---- ----- -------
$20,070 $369 $(252) $20,187
======= ==== ===== =======
At December 31, 2000
Available-for-sale securities
Corporate notes and bonds ...... $37,689 $125 $ -- $37,814
U.S. government securities ..... 1,971 7 -- 1,978
------- ---- ----- -------
$39,660 $132 $ -- $39,792
======= ==== ===== =======
F-63
The cost and estimated fair value of the securities, by contractual
maturity, consists of the following at December 31, 2001 (in thousands):
COST FAIR VALUE
------- ----------
Due within one year ..................................... $ 5,103 $ 5,118
Due after one year ...................................... 14,967 15,069
------- -------
Total ................................................ $20,070 $20,187
======= =======
4. INVESTMENT IN JOINT VENTURE
The Company's investment in joint venture consists of an investment in
Advanced Material Science, Inc. ("AMS"), which is accounted for under the equity
method. AMS was formed in 2000. The Company contributed $1 million for a 33.3%
minority interest in AMS, which was diluted to 28.6% during 2001, as discussed
below. The remaining portion of AMS is owned by Acacia and other third-party
investors. AMS's total assets and liabilities at December 31, 2001 and net loss
for the period ended December 31, 2001 were approximately $4.7 million, $24,000
and $176,000, respectively. The Company's share of AMS's losses for the years
ending December 31, 2001 and 2000 totaled $53,000 and $6,000, respectively.
During 2001, AMS sold shares of its common stock to unrelated investors.
The per-share price paid for those shares exceeded the price per share paid by
the Company. As a result, the Company recorded increases in its investment in
AMS and additional paid-in capital totaling approximately $435,000. As of
December 31, 2001, the Company owns approximately 28.6% of the outstanding
common stock of AMS.
5. PROPERTY AND EQUIPMENT
During 2001, the Company entered into a sales and leaseback transaction
with a commercial bank. Approximately $3 million of the Company's property and
equipment was sold, resulting in a deferred gain of approximately $443,000. The
gain was deferred and is being amortized over four years, which is the
weighted-average remaining useful life of the leased assets. The deferred gain
has been classified as reduction of property and equipment disclosed below. The
leased property and equipment and the related obligations qualify for capital
lease treatment under SFAS No. 13, "Accounting for Leases." As a result, the
full amount of the leased assets and the related obligations are reflected in
the Company's consolidated balance sheet at December 31, 2001.
Property and equipment consist of the following (in thousands):
DECEMBER 31, 2001 DECEMBER 31, 2000
------------------------ ------------------------
OWNED LEASED TOTAL OWNED LEASED TOTAL
------ ------ ------ ------ ------ ------
Equipment .......................................... $ 844 $1,826 $2,670 $1,225 $-- $1,225
Furniture and fixtures ............................. 125 38 163 110 -- 110
Computer hardware and software ..................... 883 253 1,136 440 -- 440
Leasehold improvements ............................. 380 883 1,263 72 -- 72
Construction-in-progress ........................... 84 -- 84 1,346 -- 1,346
------ ------ ------ ------ --- ------
2,316 3,000 5,316 3,193 -- 3,193
Less: Accumulated depreciation and amortization ... (607) (161) (768) (336) -- (336)
------ ------ ------ ------ --- ------
$1,709 $2,839 $4,548 $2,857 $-- $2,857
====== ====== ====== ====== === ======
At December 31, 2001 and 2000, accounts payable included approximately $0
and $918,000, respectively, related to the acquisition of property and
equipment.
F-64
6. ACCRUED EXPENSES
Accrued expenses consists of the following (in thousands):
DECEMBER 31,
-------------
2001 2000
------ ----
Salaries, wages and benefits ................................ $1,312 $454
Legal expenses .............................................. 415 161
Other accrued expenses ...................................... 464 43
------ ----
$2,191 $658
====== ====
7. LONG-TERM OBLIGATIONS
Note payable
In March 1998, the Company issued $1.45 million of convertible promissory
notes that were converted to common stock during 1999. The promissory notes had
a beneficial conversion feature as defined by EITF Issue No. 98-15 "Accounting
for Convertible Securities with Beneficial Conversion Features or Contingently
Adjustable Conversion Ratios" with an intrinsic value of $246,000. This amount
was measured and recognized during the year ended December 31, 2000 in a manner
similar to a cumulative effect of a change in accounting principle. The
beneficial conversion feature resulted in $246,000 of expense and a
corresponding increase to additional paid-in capital.
Capital lease obligation
In September 2001, the Company executed a capital lease obligation with a
commercial bank for $3 million, which is collaterized by the property and
equipment under lease. The term of the lease is three years, during which the
Company must make monthly principal and interest payments of approximately
$95,000. The Company is required to maintain certain financial covenants during
the term of the lease. As of December 31, 2001, the Company was in compliance
with all covenants. At December 31, 2001, the fair value of the Company's
capital lease obligation was approximately $2.8 million.
8. INCOME TAXES
At December 31, 2001, the Company has net deferred tax assets totaling
approximately $20.4 million, which are fully offset by a valuation allowance due
to management's determination that the criteria for recognition have not been
met.
At December 31, 2001, the Company had net operating loss carryforwards of
approximately $38.1 million, which will begin to expire in 2010 through 2021.
Utilization of net operating loss carryforwards is subject to the "change of
ownership" provisions under Section 382 of the Internal Revenue Code. The amount
of such limitations, if any, has not yet been determined.
The effects of temporary differences and carryforwards that give rise to
deferred tax assets and liabilities are as follows (in thousands):
F-65
DECEMBER 31,
------------------
2001 2000
-------- -------
Deferred tax assets
Net operating loss carryforwards ..................... $ 12,986 $ 5,012
Stock based compensation ............................. 6,260 2,231
Research and development credit carryforwards ........ 813 273
Other ................................................ 369 21
-------- -------
20,428 7,537
Deferred tax liability
Depreciation ......................................... (41) (44)
-------- -------
20,387 7,493
Less: Valuation allowance .............................. (20,387) (7,493)
-------- -------
$ -- $ --
======== =======
The differences between the provision for income taxes and the amount
computed by applying the federal statutory income tax rate of 34% to net loss
before taxes are as follows (in thousands):
YEARS ENDED DECEMBER 31,
--------------------------
2001 2000 1999
-------- ------- -----
Expected income tax benefit ...................... $(15,038) $(6,553) $(857)
Increase (decrease) in income taxes resulting from
Change in valuation allowance ................. 12,894 5,589 896
Research and development credits .............. (539) (155) (40)
Non-deductible stock compensation ............. 2,715 1,112 --
Other ......................................... (32) 7 1
-------- ------- -----
$ -- $ -- $ --
======== ======= =====
9. COLLABORATIVE AND RESEARCH AGREEMENTS
In July 2001, the Company entered into a non-exclusive worldwide license,
supply, research and development agreement with Roche Diagnostics GmbH
("Roche"). Under the terms of the agreement, the Company will supply microarray
and related technologies to Roche for rapid production of customizable biochips.
Additionally, the Company and Roche will develop a platform technology,
providing a range of standardized biochips for use in research applications. The
agreement has a 15-year term and provides for minimum payments by Roche to the
Company over the first three years, including milestone achievements, royalties
and research and development projects. For the year ended December 31, 2001, the
Company received $5.25 million in milestone payments and product sales, which
have been classified as deferred revenue in the accompanying December 31, 2001
consolidated balance sheet.
10. COMMITMENTS AND CONTINGENCIES
Research and development
In January 2001, the Company entered into a design commitment to develop a
next generation microarray. If this design project is completed successfully,
the Company will be obligated to a one-year commitment to purchase a specific
number of semiconductor wafers at a total cost of $1.1 million.
In November 2000, the Company entered into a licensing and supply agreement
with Acacia to provide commercial active biochips within the field of toxicology
to a newly formed affiliate of Acacia. The term of the
F-66
agreement is for five years. If the Company successfully develops an active
biochip for commercial use in the toxicology field, the Company will receive a
10% ownership interest in this newly formed company. The agreement also provides
for a one-time licensing fee to use and resell active biochips within the
toxicology field of $1 million payable to the Company in four quarterly
installments, beginning upon the affiliate's first commercial order of active
biochips. The ownership interest and one-time licensing fee will be accounted
for as capital contributions.
Human resources
In October 2001, the Company's Board of Directors amended its existing
general severance plan for executive officers, which provides that if the
Company terminates an executive who is a vice president or higher for other than
cause, death or disability, the executive will receive payments equal to three
months' base salary and target bonus and other benefits on a bi-weekly basis
over a three-month period. If termination occurs as a result of a change in
control transaction, these benefits will be extended by three months.
The Company also offers a general severance plan providing all employees
with certain benefits upon their termination of employment due to lack of work.
Under this plan, terminated employees will be provided with either four-weeks'
notice or four-weeks' salary in lieu of notice, and paid a lump-sum amount based
on the employee's length of service, plus accrued benefits. The terminated
employees will also be provided continuing medical and dental benefits, as well
as continuation of life insurance, for a period ranging from two to 26 weeks
subsequent to the date of termination, depending upon the employee's length of
service.
Leases
In October 2000, the Company entered into a non-cancelable operating lease
for office space. A security deposit in the form of a $783,000 letter of credit
was issued November 1, 2000, which was increased to $1.2 million during 2001.
The Company's future minimum operating and capital lease payments as of December
31, 2001 are as follows (in thousands):
YEARS ENDING DECEMBER 31, OPERATING CAPITAL
---------------------------------------------------------- --------- -------
2002 ..................................................... $ 1,452 $1,141
2003 ..................................................... 1,720 1,141
2004 ..................................................... 1,650 855
2005 ..................................................... 1,721 --
2006 ..................................................... 1,735 --
Thereafter ............................................... 3,312 --
------- ------
$11,590 3,137
=======
Less imputed interest at 8.8% ............................ (358)
------
Present value of capital lease obligation ................ 2,779
Less current portion ..................................... (934)
------
Capital lease obligation, net of current portion ......... $1,845
======
Rent expense for the years ended December 31, 2001, 2000 and 1999 was $1.45
million, $411,000 and $259,000, respectively. Rent expense was $2.4 million for
the cumulative period from October 4, 1995 (date of inception) to December 31,
2001.
Litigation
On November 28, 2000, Nanogen, Inc. filed suit against the Company and one
of its principal stockholders, executive officers and members of the Company's
Board of Directors. The Nanogen suit alleges, among other things, that the
Company's issued patent and certain pending patent applications, trade secrets
and related technologies were inappropriately obtained by the Company and that
Nanogen is the legal owner of the patents, trade secrets and related
technologies. The suit seeks, among other things, correction of inventorship on
the
F-67
Company's issued patent, the assignment of rights in the issued patent and
pending patent applications to Nanogen, an injunction preventing disclosure of
trade secrets, damages for trade secret misappropriation and the imposition of a
constructive trust.
The litigation is in the early stages, and the Company cannot predict its
outcome. While the Company believes it has defenses to Nanogen's claims, if
Nanogen were to prevail in its suit against the Company and obtain the
injunction, monetary and other relief that is being sought, the Company would
incur significant financial liabilities which would materially affect the
Company's financial condition and operating results, and the Company may be
forced to cease operations.
11. STOCKHOLDERS' EQUITY
In November 2000, the Board of Directors approved a restated certificate of
incorporation, which, among other things, increased the number of authorized
shares of common stock to 300 million and the number of authorized shares of
preferred stock to 50 million.
Common stock
The holders of common stock are entitled to one vote for each share held of
record on all matters submitted to a vote of the stockholders, including the
election of directors and do not have cumulative voting rights. Subject to
preferences that may be applicable to any then outstanding preferred stock,
holders of common stock are entitled to receive dividends, if any, as may be
declared by the Board of Directors. Upon liquidation, dissolution or winding up
of the Company, the holders of common stock will be entitled to share ratably in
the net assets legally available for distribution to stockholders, after the
payment of all debts and other liabilities, subject to the prior rights of any
preferred stock then outstanding.
During February 2000, an officer of the Company entered into an employment
agreement with the Company. Among other items, the agreement required the
officer to purchase 125,000 shares of common stock at $2.00 per share. The
shares were purchased in June 2000 resulting in cash proceeds to the Company of
$250,000.
During October 2001, the KK issued 10% of its common stock to an unrelated
company for $1.1 million. The per-share price paid for these shares exceeded the
price per share paid by Holdings to capitalize the KK. As a result, the Company
recognized a change of interest gain of approximately $951,000. The gain has
been recorded as an increase to additional paid-in capital.
Preferred stock
The Company's Board of Directors has the authority, without further action
by the stockholders, to issue from time to time preferred stock in one or more
series and to fix the number of shares, designations, preferences, powers and
relative, participating, optional or other special rights and the qualifications
or restrictions of the preferred stock. The preferences, powers, rights and
restrictions of different series of preferred stock may differ with respect to
dividend rates, amounts payable on liquidation, voting rights, conversion
rights, redemption provisions, sinking fund provisions and other matters. There
are no shares of preferred stock outstanding.
Warrants
Pursuant to the issuance of convertible promissory notes in March 1998 as
discussed in Note 7, the Company issued warrants to purchase 145,000 shares of
its common stock at a price of $2.00 per share. These warrants were exercised in
2001 and 2000, resulting in proceeds to the Company of $257,000 and $33,000,
respectively.
During 2000, the Company issued 31,050 warrants for the purchase of shares
of common stock. These warrants, which were issued in connection with the
issuance of common stock, were immediately exercisable at prices of $2.20 per
share and $5.50 per share. These warrants begin to expire in 2003 through 2010.
As of December 31, 2001 and 2000, the Company has reserved 38,050 and
172,350 shares, of its common stock, respectively, for the exercise of these
warrants.
F-68
Stock options
In 1996 and 1998, the Company approved the 1996 Stock Option Plan and the
1998 Stock Option Plan (the "Plans") for employees, directors, consultants and
independent contractors under which 500,000 and 5 million shares, respectively,
of common stock were reserved. Pursuant to the Plans, either the Board of
Directors or the Compensation Committee has the authority to grant nonqualified
and incentive stock options and to establish the vesting period, exercise price
and expiration period of the awards. Options generally vest over a four-year
period and expire 10 years from the date of grant. Certain options have been
granted that are immediately exercisable, subject to the Company's right of
repurchase, which expires over a four-year period.
In November 2000, the Board of Directors and Acacia, as the Company's
majority stockholder, approved the 2000 Stock Awards Plan and ceased issuance of
additional options under the Plans. This new plan provides for the award of
incentive or non-qualified stock options, restricted stock awards, stock
appreciation rights, performance awards and phantom stock awards. At December
31, 2001, 1,850,919 shares of common stock were available for grant under the
2000 Stock Awards Plan.
In February 2001, the Board of Directors and the stockholders approved the
2001 Employee Stock Purchase Plan. Eligible employees can contribute up to 10%
of their base compensation to purchase shares of the Company's common stock at a
discount of up to 15% of the fair value of the common stock. This plan provides
for the purchase of up to a maximum of 20,000 shares, and any shares purchased
under this plan reduce the number of shares available under the 2000 Stock
Awards Plan. No shares have been purchased under this plan.
During 2000, the Company issued 25,000 stock options to an employee of
Acacia. The options have an exercise price of $9.00 and vest monthly over two
years. The Company has accounted for the grant of these options in accordance
with the provisions SFAS No. 123. The fair value of these option grants was
estimated on the date of grant using the Black-Scholes option pricing model with
the following assumptions; no dividend yield, a risk-free interest rate of
5.81%, volatility of 75% and an expected option term of 10 years. The fair value
of these options totaling $1.15 million was recorded as a dividend to Acacia,
with an offset to additional paid-in capital at the date of grant. These options
expire in 2010.
F-69
Option activity for the period from inception (October 4, 1995) to December
31, 2001 is as follows:
OPTIONS OUTSTANDING
-------------------------------------------------------
WEIGHTED-
SHARES AVERAGE
AVAILABLE FOR NUMBER OF EXERCISE PRICE EXERCISE
GRANT SHARES PER SHARE PRICE
------------- ---------- -------------- ---------
Shares reserved .............. 500,000 -- -- --
Options granted in 1996 ...... (41,000) 41,000 $ 1.00-$ 1.50 $ 1.49
---------- ----------
Balance, December 31, 1996 ... 459,000 41,000 $ 1.00-$ 1.50 $ 1.49
Options granted .............. (181,250) 181,250 $ 1.00-$ 2.00 $ 1.46
Options exercised ............ -- (25,000) $ 1.00 $ 1.00
---------- ----------
Balances, December 31, 1997 .. 277,750 197,250 $ 1.00-$ 2.00 $ 1.53
Additional Shares reserved ... 2,500,000 -- -- --
Balances, December 31, 1998 .. 2,777,750 197,250 $ 1.00-$ 2.00 $ 1.53
Options granted .............. (427,000) 427,000 $ 2.00 $ 2.00
---------- ----------
Balances, December 31, 1999 .. 2,350,750 624,250 $ 1.00-$ 2.00 $ 1.85
Additional shares reserved ... 2,500,000 -- -- --
Options granted .............. (3,837,500) 3,837,500 $ 2.00-$24.00 $ 7.05
Options exercised ............ -- (8,750) $ 2.00 $ 2.00
Options canceled ............. 86,279 (86,279) $ 1.00-$ 5.00 $ 3.29
---------- ----------
Balances, December 31, 2000 .. 1,099,529 4,366,721 $ 1.00-$24.00 $ 6.39
Options granted .............. (816,000) 816,000 $12.00-$24.00 $18.27
Options exercised ............ -- (119,720) $ 1.00-$ 9.00 $ 2.18
Options canceled ............. 1,567,390 (1,567,390) $ 1.00-$ 9.00 $ 7.59
---------- ----------
Balances, December 31, 2001 .. 1,850,919 3,495,611 $ 1.00-$24.00 $ 8.75
========== ==========
The following table summarizes information about options outstanding at
December 31, 2001:
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
----------------------------------------- ---------------------
WEIGHTED-
AVERAGE WEIGHTED- WEIGHTED-
REMAINING AVERAGE AVERAGE
RANGE OF NUMBER CONTRACTUAL EXERCISE NUMBER OF EXERCISE
EXERCISE PRICES OUTSTANDING LIFE (IN YEARS) PRICE SHARES PRICE
--------------- ----------- --------------- --------- --------- ---------
$ 1.00-$ 2.00 643,673 5.1 $ 1.89 523,088 $ 1.86
$ 5.00-$ 6.50 1,094,233 9.1 $ 9.96 710,465 $ 9.06
$ 9.00-$12.00 1,218,216 9.1 $ 9.96 379,193 $ 9.06
$18.00-$24.00 539,489 9.1 $21.73 147,143 $21.15
--------- ---------
3,495,611 8.1 1,759,889 $ 6.30
========= =========
F-70
At December 31, 2001, 2000, 1999, 1998 and 1997, options for 1,759,889;
889,531; 269,963; 111,121 and 52,750 shares were exercisable with a
weighted-average exercise price of $6.30; $3.21; $2.35; $1.56 and $1.56 per
share, respectively.
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option pricing model with the following assumptions; no
dividend yield, risk-free interest rates ranging from 3.18% to 6.48%, volatility
of 0% for grants prior to the Company's initial public filing on November 22,
2000 and 75% subsequent to the initial public filing, and an expected option
term of four years.
Had the Company applied the provisions of SFAS No. 123 to all stock option
grants, the Company's net losses and net losses per share would have been
increased to the pro forma amounts indicated below (in thousands, except per
share amounts):
FOR THE
PERIOD FROM
INCEPTION
(OCTOBER 4,
YEARS ENDED DECEMBER 31, 1995) TO
----------------------------- DECEMBER 31,
2001 2000 1999 2001
-------- -------- ------- ------------
Net loss
As reported ......................... $(44,228) $(19,274) $(2,520) $(68,935)
Pro forma ........................... $(48,912) $(20,555) $(2,547) $(74,949)
Net loss per share, basic and diluted
As reported ......................... $ (2.37) $ (1.26) $ (0.29)
Pro forma ........................... $ (2.62) $ (1.35) $ (0.29)
The weighted-average fair values and weighted-average exercise prices per
share at the date of grant for options granted were as follows:
YEARS ENDED DECEMBER 31,
------------------------
2001 2000 1999
------ ------ -----
Weighted-average fair value of options granted
with exercise prices equal to the fair value of the
stock at the date of grant .............................. $11.61 $ -- $0.42
Weighted-average exercise price of options granted
with exercise prices equal to the fair value of the
stock at the date of grant .............................. $16.75 $ -- $2.00
Weighted-average fair value of options granted
with exercise prices less than the fair value of the
stock at the date of grant .............................. $20.68 $16.73 $ --
Weighted-average exercise price of options granted
with exercise prices less than the fair value of the
stock at the date of grant .............................. $24.00 $ 7.18 $ --
Weighted-average fair value of options granted
with exercise price greater than the market value of the
stock at the date of grant .............................. $ -- $ 0.75 $ --
Weighted-average exercise price of options granted
with exercise prices greater than the market value of the
stock at the date of grant .............................. $ -- $ 5.36 $ --
F-71
Deferred stock compensation
During the years ended December 31, 2001 and 2000, in connection with the
granting of stock options to employees and members of the Board of Directors at
exercise prices below fair market value, the Company recorded deferred
compensation aggregating $729,000 and $52.5 million, respectively, which is
being amortized over an accelerated vesting period as prescribed by FIN No. 28.
Amortization expense associated with deferred stock compensation totaled
approximately $18.8 million and $9.7 million for the years ended December 31,
2001 and 2000, respectively. As a result of stock option cancellations and
forfeitures during 2001, deferred stock compensation and amortization of
deferred stock compensation were reduced by approximately $13.3 million and $4.7
million, respectively. The impact of stock option cancellations and forfeitures
to deferred stock compensation and amortization of deferred stock compensation
prior to 2001 and during the first quarter of 2001 were not significant.
Stock-based compensation expense related to stock options granted to
non-employees is recognized as the stock options are earned. The fair value of
these stock options granted during 2000 was calculated using the Black-Scholes
option pricing model as prescribed by SFAS No. 123 using the following
assumptions:
Risk free interest rate .......................... 5.04% to 6.52%
Expected life (in years) ......................... 10
Dividend yield ................................... --
Expected volatility .............................. 75%
In connection with the grant of stock options to non-employees, the Company
recognized deferred stock-based compensation of approximately $1.2 million
during the year ended December 31, 2000. There were no stock options granted to
non-employees during 2001.
12. RETIREMENT SAVINGS PLAN
The Company has an employee savings and retirement plan under section
401(k) of the Internal Revenue Code. The Plan is a defined contribution plan in
which eligible employees may elect to have a percentage of their compensation
contributed to the Plan, subject to certain guidelines issued by the Internal
Revenue Service. The Company may contribute to the Plan at the discretion of the
Board of Directors. There were no contribution made by the Company during the
years ended December 31, 2001, 2000 and 1999.
13. RELATED PARTIES
Acacia, the majority stockholder of the Company, has the sole discretion to
determine the timing, structure and terms of any divestiture of its shares in
the Company other than a divestiture pursuant to a merger or other transaction
requiring approval of the Company's Board of Directors.
At December 31, 2001, Acacia owned a controlling interest in the Company's
outstanding common stock. As a result, Acacia controls substantially all matters
requiring stockholder approval, including the election of directors and approval
of significant corporate transactions, and exercises significant influence over
matters requiring director approval. Acacia has advised the Company that it
intends to retain a majority position in the Company.
Since inception, officers or directors of Acacia have represented a
majority of the members of the Company's Board of Directors. Additionally,
officers or directors of Acacia have served from time to time as the acting
Chief Executive Officer of the Company. Until August 1, 2000, Acacia maintained
the Company's accounting records. In addition, Acacia provided administrative,
human resources, insurance, legal and other services to the Company. These
services were provided by Acacia at no cost to the Company through December 31,
1999. Prior to 2000, fees for management services have been imputed and recorded
with corresponding credits to additional paid-in capital. During the years ended
December 31, 2001, 2000, 1999, and from inception (October 4, 1995) to December
31, 2001, the Company incurred $165,000, $133,000, $62,000 and $375,000,
respectively, related to management fees and insurance allocations. The
allocation of expenses was based on the number of Acacia personnel who dedicated
time to the Company.
F-72
In November 2000, the Company entered into an exclusive license and
development agreement with Acacia for the use and development of the Company's
technology by AMS in the field of material sciences. The principal terms include
an exclusive license to AMS and customary royalty arrangement on the net sales
generated by AMS. The initial term of this agreement is 20 years.
In November 2000, the Company entered into a one-year consulting agreement
with Acacia. Under this agreement, Acacia, as an independent contractor,
supplied members of its staff to assist the Company in various business,
research, analysis, development and general technical matters. Acacia charged
the Company for these services based upon each staff member's monthly salary and
the portion of time spent each month on the Company's business matters and
reasonable expenses.
Since inception, Acacia has also made interest-free advances to the
Company. At December 31, 2001 and 2000, the Company owed Acacia $22,000 and
$70,000, respectively.
Management of the Company owns shares of common stock of Acacia and options
to purchase Acacia shares. The Acacia options were granted at the fair value at
the date of grant.
14. SUBSEQUENT EVENT
On April 25, 2002, CombiMatrix Corporation purchased Acacia Research
Corporation's interest in Advanced Material Sciences, Inc., a development stage
company that holds the exclusive license for CombiMatrix Corporation's
biological array processor technology in certain fields of material science.
CombiMatrix Corporation issued 180,982 shares of its common stock in exchange
for Acacia Research Corporation's 58% interest in Advanced Material Sciences,
Inc. CombiMatrix Corporation currently owns 87% of Advanced Material Sciences
and the remaining interests are owned by unaffiliated entities.
15. INTERIM FINANCIAL STATEMENTS (UNAUDITED)
Unaudited Interim Information
The unaudited CombiMatrix Corporation consolidated financial statements as
of June 30, 2002, and for the three and six month periods ended June 30, 2002
and 2001, have been prepared in accordance with generally accepted accounting
principles for interim financial information. These condensed interim
consolidated financial statements should be read in conjunction with the
CombiMatrix Corporation consolidated financial statements and notes thereto for
the year ended December 31, 2001.
The unaudited interim CombiMatrix Corporation condensed consolidated
financial statements include all adjustments of a normal recurring nature which,
in the opinion of management, are necessary for a fair presentation of our
financial position as of June 30, 2002, the results of our operations for the
three and six months ended June 30, 2002 and 2001, and our cash flows and our
stockholders' equity for the six months ended June 30, 2002. The results of
operations for the three and six months ended June 30, 2002 are not necessarily
indicative of the results to be expected for the entire year.
F-73
Loss Per Share
Basic and diluted net loss per share have been computed using the
weighted-average number of shares of common stock outstanding during the period.
The Company has excluded all outstanding options and warrants to purchase common
stock from the calculation of diluted net loss per share, as such securities are
antidilutive for all periods presented. These antidilutive securities are as
follows:
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
--------------------- ---------------------
2002 2001 2002 2001
--------- --------- --------- ---------
Options ...................... 3,753,892 4,492,221 3,753,892 4,492,221
Warrants ..................... 38,050 38,050 38,050 38,050
--------- --------- --------- ---------
3,791,942 4,530,271 3,791,942 4,530,271
========= ========= ========= =========
Recent Accounting Pronouncements
In June 1998, the Financial Accounting Standards Board ("FASB") issued SFAS
No. 133, "Accounting for Derivative Financial Instruments and for Hedging
Activities," which provides a comprehensive and consistent standard for the
recognition and measurement of derivatives and hedging activities. SFAS No. 133
is effective for fiscal years beginning after June 15, 2000 and it did not have
an impact on the Company's results of operations or financial condition when
adopted, as the Company holds no derivative financial instruments and does not
currently engage in hedging activities.
In June 2001, the FASB issued SFAS No. 141, "Business Combinations" and
SFAS No. 142, "Goodwill and Other Intangible Assets." SFAS No. 141 eliminated
the pooling-of-interests method of accounting for business combinations. As a
result, all business combinations must now be accounted for using the purchase
method. The provisions of this statement apply to all business combinations
initiated after June 30, 2001. SFAS No. 142 requires that goodwill may no longer
be amortized to earnings, but instead must be reviewed for impairment
periodically. The Company adopted SFAS No. 142 effective January 1, 2002. the
adoption of these statements did not have a significant impact on the Company's
financial position or results of operations.
In August 2001, the FASB issued SFAS No. 144, "Accounting for the
Impairment or Disposal of Long-Lived Assets," which supersedes SFAS No. 121.
This Statement also supersedes the accounting and reporting provisions of APB
Opinion No. 30, "Reporting the Results of Operations - Reporting the Effects of
Disposal of a Segment of a Business, and Extraordinary, Unusual and Infrequently
Occurring Events and Transactions," for segments of a business to be disposed
of. This Statement also amends Accounting Research Bulletin No. 51,
"Consolidated Financial Statements," to eliminate the exception to consolidation
for a temporarily controlled subsidiary. The Company adopted SFAS No. 144
effective January 1, 2002. theThe adoption of this pronouncement did not have a
significant impact on the Company's financial position or results of operations.
In April 2002, the FASB issued SFAS No. 145, "Rescission of FASB Statements
No. 4, 44 and 64, Amendment of FASB Statement No. 13, and Technical
Corrections," ("SFAS No. 145"), which is effective for transactions occurring
after May 15, 2002. SFAS No. 145 rescinds SFAS No. 4 and SFAS No. 64, which
addressed the accounting for gains and losses from extinguishment of debt. SFAS
No. 44 set forth industry-specific transitional guidance that did not apply to
us. SFAS No. 145 amends SFAS No. 13 to require that certain lease modifications
that have economic effects similar to sale-leaseback transactions be accounted
for in the same manner as sale-leaseback transactions. SFAS No. 145 also makes
technical corrections to certain existing pronouncements that are not
substantive in nature. We do not expect the adoption of SFAS No. 145 to have a
significant impact on our financial position or results of operations.
In June 2002, the FASB issued SFAS No. 146, "Accounting for Costs
Associated with Exit or Disposal Activities." SFAS No. 146 nullifies Emerging
Issues Task Force ("EITF") Issue No. 94-3, "Liability Recognition for Certain
Employee Termination Benefits and Other Costs to Exit an Activity," under which
a liability for an exit cost was recognized at the date of an entity's
commitment to an exit plan. SFAS No. 146 requires that a liability for a cost
associated with an exit or disposal activity be recognized at fair value when
the liability is incurred. The provisions
F-74
of this statement are effective for exit or disposal activities that are
initiated after December 31, 2002. We do not expect the adoption of SFAS No. 146
to have a significant impact on our financial position or results of operations.
COMMITMENTS AND CONTINGENCIES
On November 28, 2000, Nanogen, Inc. filed a complaint in the United States
District Court for the Southern District of California against CombiMatrix and
Donald D. Montgomery, Ph.D., Senior Vice President, Chief Technology Officer and
a director of CombiMatrix. Dr. Montgomery was employed by Nanogen as a senior
research scientist between May 1994 and August 1995. The Nanogen complaint
alleges, among other things, breach of contract, trade secret misappropriation
and that U.S. Patent No. 6,093,302 and other proprietary information belonging
to CombiMatrix are instead the property of Nanogen. The complaint seeks, among
other things, correction of inventorship on the patent, the assignment of rights
in the patent and pending patent applications to Nanogen, an injunction
preventing disclosure of trade secrets, damages for trade secret
misappropriation and the imposition of a constructive trust. On December 15,
2000, CombiMatrix and Dr. Montgomery filed a motion to dismiss the lawsuit,
which was denied in part and granted in part on February 1, 2001. On March 9,
2001, CombiMatrix and Dr. Montgomery filed a counterclaim, alleging breach of
express covenants not to sue or otherwise interfere with Dr. Montgomery arising
out of a release signed by Nanogen in 1996. On April 4, 2001, Nanogen filed a
motion to dismiss the counterclaim, which the court denied in its entirety on
July 27, 2001. On July 31, 2002, the court denied a motion filed by CombiMatrix
for partial summary judgment regarding Donald Montgomery's prior settlement
agreement with Nanogen.
SUBSEQUENT EVENTS
On September 30, 2002, CombiMatrix Corporation and Dr. Donald Montgomery,
an officer and stockholder of CombiMatrix Corporation, entered into a settlement
agreement with Nanogen, Inc. to settle all pending litigation between the
parties. Pursuant to the terms of the settlement agreement, CombiMatrix
Corporation agreed to pay Nanogen $500,000 within 30 days of the settlement and
an additional $500,000 within one year of the settlement. CombiMatrix
Corporation also agreed to make quarterly payments to Nanogen equal to 12.5% of
total sales of products developed by CombiMatrix Corporation and its affiliates
and based on the patents that had been in dispute in the litigation, up to an
annual maximum of $1,500,000. The minimum quarterly payments under the
settlement agreement will be $37,500 per quarter for the period from October 1,
2003 through October 1, 2004, and $25,000 per quarter thereafter until the
patents expire. Also pursuant to the settlement agreement, CombiMatrix
Corporation agreed to issue 4,016,346 shares, or 17.5% of its outstanding shares
post-issuance, to Nanogen, subject to antidilution provisions under specified
circumstances, including the exercise of outstanding options and warrants and
issuances of additional capital stock of CombiMatrix Corporation, for a period
of up to three years.
CombiMatrix Corporation will account for the issuance of the CombiMatrix
Corporation common shares in settlement of the litigation with Nanogen, Inc. as
a nonmonetary transaction. Accordingly, in the third quarter of 2002,
CombiMatrix Corporation will record a litigation settlement charge in the
consolidated statement of operations of approximately $18.0 million, which is
based on the fair value of the CombiMatrix Corporation common shares issued to
Nanogen, Inc. The fair value of the common shares issued and the related
litigation charge was based on a third-party valuation of CombiMatrix
Corporation.
In October 2002, CombiMatrix was in non-compliance with one of its
covenants under its capital lease obligation with a commercial bank. CombiMatrix
paid the remaining balance of the obligation in the amount of $2.1 million on
November 1, 2002.
F-75
ACACIA TECHNOLOGIES GROUP
(A DIVISION OF ACACIA RESEARCH CORPORATION)
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and
Stockholders of Acacia Research Corporation
In our opinion, the accompanying balance sheets and the related statements
of operations, allocated net worth and cash flows present fairly, in all
material respects, the financial position of the Acacia Technologies group (a
division of Acacia Research Corporation as described in Note 1) at December 31,
2001 and December 31, 2000, and the results of its operations and its cash flows
for each of the three years in the period ended December 31, 2001, in conformity
with accounting principles generally accepted in the United States of America.
These financial statements are the responsibility of Acacia Research
Corporation's management; our responsibility is to express an opinion on these
financial statements based on our audits. We conducted our audits of these
statements in accordance with auditing standards generally accepted in the
United States of America, which require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements, assessing
the accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
As more fully described in Note 1 to the financial statements, Acacia
Technologies group is a division of Acacia Research Corporation; accordingly,
the financial statements of Acacia Technologies group should be read in
conjunction with the consolidated financial statements of Acacia Research
Corporation.
/s/ PricewaterhouseCoopers LLP
Los Angeles, California
May 2, 2002
F-76
ACACIA TECHNOLOGIES GROUP
A DIVISION OF ACACIA RESEARCH CORPORATION
BALANCE SHEETS
(IN THOUSANDS)
AT DECEMBER 31, AT JUNE 30,
------------------- -----------
2001 2000 2002
-------- -------- -----------
(UNAUDITED)
ASSETS
Current assets:
Cash and cash equivalents ............................. $ 46,859 $ 29,605 $ 42,874
Short-term investments ................................ 4,372 -- 765
Prepaid expenses, other receivables and other assets... 800 323 1,087
-------- -------- --------
Total current assets ............................... 52,031 29,928 44,726
Property and equipment, net of accumulated depreciation .. 358 871 315
Receivable from CombiMatrix group ........................ 30 107 88
Investment in affiliate, at equity ....................... -- 346 --
Investment in affiliate, at cost ......................... 3,000 3,000 3,000
Patents, net of accumulated amortization ................. 5,554 2,215 4,726
Goodwill, net of accumulated amortization ................ 1,776 426 1,776
Other assets ............................................. 177 169 694
-------- -------- --------
$ 62,926 $ 37,062 $ 55,325
======== ======== ========
LIABILITIES AND ALLOCATED NET WORTH
Current liabilities:
Accounts payable, accrued expenses and other .......... $ 2,925 $ 5,075 $ 2,745
Deferred revenues ..................................... 1,500 -- 1,500
-------- -------- --------
Total current liabilities .......................... 4,425 5,075 4,245
Deferred income taxes .................................... 1,298 -- 1,227
-------- -------- --------
Total liabilities .................................. 5,723 5,075 5,472
-------- -------- --------
Commitments and contingencies (Note 8)
Minority interests ....................................... 2,194 2,012 1,899
-------- -------- --------
Allocated Net Worth:
Funds allocated by Acacia Research Corporation ........ 107,270 66,305 106,860
Accumulated net losses ................................ (52,261) (36,330) (58,906)
-------- -------- --------
Total allocated net worth .......................... 55,009 29,975 47,954
-------- -------- --------
$ 62,926 $ 37,062 $ 55,325
======== ======== ========
The accompanying notes are an integral part of these financial statements.
F-77
ACACIA TECHNOLOGIES GROUP
A DIVISION OF ACACIA RESEARCH CORPORATION
STATEMENTS OF OPERATIONS
(IN THOUSANDS)
FOR THE YEARS ENDED DECEMBER 31,
--------------------------------
2001 2000 1999
------- -------- -------
REVENUES:
License fee income .................................... $24,180 $ -- $ --
Other income .......................................... -- 40 122
------- -------- -------
Total revenues ..................................... 24,180 40 122
------- -------- -------
OPERATING EXPENSES:
Research and development expenses ........................ -- 52 --
Marketing, general and administrative expenses ........... 4,402 8,274 3,088
Non-cash stock compensation expenses - marketing,
general and administrative ............................... 856 709 110
Legal expenses ........................................... 11,572 984 287
Amortization of patents and goodwill ..................... 1,492 1,611 1,592
Loss on disposal of subsidiaries ......................... -- 1,016 --
------- -------- -------
Total operating expenses ........................... 18,322 12,646 5,077
------- -------- -------
Operating income (loss) .................................. 5,858 (12,606) (4,955)
------- -------- -------
OTHER INCOME (EXPENSE):
Write-off of equity investments ....................... -- (2,603) --
Interest income ....................................... 1,642 1,424 286
Realized gains (losses) on short-term investments ..... 350 -- --
Unrealized gains (losses) on short-term investments ... 237 -- --
Equity in losses of affiliate ......................... (195) (1,746) (1,121)
Other income .......................................... 77 28 17
------- -------- -------
Total other income (expense) ....................... 2,111 (2,897) (818)
------- -------- -------
Income (loss) from continuing operations before
income taxes and minority interests ................... 7,969 (15,503) (5,773)
(Provision) benefit for income taxes ..................... (935) (6) (18)
------- -------- -------
Income (loss) from continuing operations before
minority interests .................................... 7,034 (15,509) (5,791)
Minority interests ....................................... (1,277) 866 (27)
------- -------- -------
Income (loss) from continuing operations ................. 5,757 (14,643) (5,818)
Discontinued operations
Loss from discontinued operations of
Soundbreak.com ........................................ -- (7,443) (776)
Estimated loss on disposal of Soundbreak.com ............. -- (2,111) --
------- -------- -------
Division net income (loss) ............................... $ 5,757 $(24,197) $(6,594)
======= ======== =======
The accompanying notes are an integral part of these financial statements.
F-78
ACACIA TECHNOLOGIES GROUP
A DIVISION OF ACACIA RESEARCH CORPORATION
STATEMENTS OF OPERATIONS
(IN THOUSANDS)
THREE MONTHS ENDED SIX MONTHS ENDED
----------------------------- -----------------------------
JUNE 30, 2002 JUNE 30, 2001 JUNE 30, 2002 JUNE 30, 2001
------------- ------------- ------------- -------------
REVENUES:
License fee income .................................. $ -- $ 10,000 $ -- $ 12,440
Other income ........................................ -- -- -- --
------- -------- ------- --------
Total revenues .................................. -- 10,000 -- 12,440
------- -------- ------- --------
OPERATING EXPENSES:
Marketing, general and administrative expenses ........ 2,053 1,063 3,337 2,554
Non-cash stock compensation expenses - marketing,
general and administrative ......................... 8 10 19 833
Legal expenses ........................................ 536 4,740 1,039 5,771
Amortization of patents and goodwill .................. 465 337 930 672
Loss on disposal of subsidiaries ...................... -- -- -- --
------- -------- ------- --------
Total operating expenses ........................ 3,062 6,150 5,325 9,830
------- -------- ------- --------
Operating income (loss) ............................... (3,062) 3,850 (5,325) 2,610
------- -------- ------- --------
OTHER INCOME (EXPENSE) :
Interest income ..................................... 147 471 301 933
Realized gains (losses) on short-term investments ... (930) -- (1,483) --
Unrealized gains (losses) on short-term investments.. (156) -- (477) --
Equity in losses of affiliate ....................... -- (55) -- (110)
Other income ........................................ 34 57 112 61
------- -------- ------- --------
Total other income (expense) .................... (905) 473 (1,547) 884
------- -------- ------- --------
Income (loss) from continuing operations before
income taxes and minority interests ................. (3,967) 4,323 (6,872) 3,494
(Provision) benefit for income taxes .................. 36 (267) 65 (316)
------- -------- ------- --------
Income (loss) from continuing operations before
minority interests .................................. (3,931) 4,056 (6,807) 3,178
Minority interests .................................... 125 (959) 162 (1,286)
------- -------- ------- --------
Division net income (loss) ............................ $(3,806) $ 3,097 $(6,645) $ 1,892
======= ======== ======= ========
The accompanying notes are an integral part of these financial statements.
F-79
ACACIA TECHNOLOGIES GROUP
(A DIVISION OF ACACIA RESEARCH CORPORATION)
STATEMENTS OF ALLOCATED NET WORTH
(IN THOUSANDS)
Balance at December 31, 1998 ....................................... $ 18,845
Net assets attributed to the Acacia Technologies group ............. 32,241
Division net loss .................................................. (6,594)
--------
Balance at December 31, 1999 ....................................... 44,492
Net assets attributed to the Acacia Technologies group ............. 9,680
Division net loss .................................................. (24,197)
--------
Balance at December 31, 2000 ....................................... 29,975
Net assets attributed to the Acacia Technologies group ............. 19,277
Division net income ................................................ 5,757
--------
Balance at December 31, 2001 ....................................... 55,009
Net assets attributed to the Acacia Technologies group ............. (410)
Division net loss .................................................. (6,645)
--------
Balance at June 30, 2002 (Unaudited) ............................... $ 47,954
========
The accompanying notes are an integral part of these financial statements.
F-80
ACACIA TECHNOLOGIES GROUP
A DIVISION OF ACACIA RESEARCH CORPORATION
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
FOR THE YEARS ENDED FOR THE SIX MONTHS
DECEMBER 31, ENDED JUNE 30,
----------------------------- ------------------
2001 2000 1999 2002 2001
-------- -------- ------- ------- --------
(UNAUDITED)
Cash flows from operating activities:
Division net income (loss) from continuing operations: .................... $ 5,757 $(14,643) $(5,818) $(6,645) $ 1,892
Adjustments to reconcile division net income (loss) from continuing
operations to net cash provided by (used in) operating activities:
Depreciation and amortization ........................................ 1,710 1,751 1,688 1,007 788
Equity in losses of affiliate ........................................ 195 1,746 1,121 -- 110
Stock-based compensation ............................................. 856 709 110 19 833
Minority interests ................................................... 1,277 (866) 27 (162) 1,286
Deferred tax benefit ................................................. (27) (2) -- (71) --
Write-off of other assets ............................................ -- 2,603 -- -- --
Net purchases (sales) of trading securities .......................... (4,135) -- -- 3,133 --
Unrealized (gains) losses on short-term investments .................. (237) -- -- 477 --
Other ................................................................ 40 398 101 87 309
Changes in assets and liabilities:
Prepaid expenses, other receivables and other assets ................. (455) (1,040) 234 (867) (278)
Accounts payable, accrued expenses and other ......................... 310 149 492 180 1,195
Deferred revenues .................................................... 1,500 -- -- -- --
-------- -------- ------- ------- --------
Net cash provided by (used in) operating activities of continuing
operations ......................................................... 6,791 (9,195) (2,045) (2,842) 6,135
Net cash used in operating activities of discontinued operations ..... (2,182) (16,600) (1,420) (415) (1,698)
-------- -------- ------- ------- --------
Net cash provided by (used in) operating activities .................. 4,609 (25,795) (3,465) (3,257) 4,437
-------- -------- ------- ------- --------
Cash flows from investing activities:
Deposit on investments ............................................... -- -- (3,000) -- --
Withdrawal from partnership .......................................... -- -- 1,710 -- --
Capital contribution to equity investments ........................... -- 1,000 -- -- --
Purchase of additional equity in consolidated subsidiaries ........... (3,304) (970) (2,387) -- --
Purchase of property and equipment ................................... (19) (472) (153) (70) (17)
Purchase of short-term investments ................................... (25,921) -- -- -- (11,120)
Sale of short-term investments ....................................... 25,921 -- -- -- --
Purchase of common stock from minority stockholders of subsidiaries .. (2,550) -- -- -- (584)
Other ................................................................ -- (54) (83) (100) --
-------- -------- ------- ------- --------
Net cash used in investing activities from continuing operations ..... (5,873) (496) (3,913) (170) (11,721)
Net cash (used in) provided by investing activities from discontinued
operations ......................................................... (145) (1,173) (649) (4) 137
-------- -------- ------- ------- --------
Net cash used in investing activities ................................ (6,018) (1,669) (4,562) (174) (11,584)
-------- -------- ------- ------- --------
Cash flows from financing activities:
Net cash attributed to the Acacia Technologies group ................. 18,663 20,897 39,763 (554) 18,012
-------- -------- ------- ------- --------
Increase (decrease) in cash and cash equivalents .......................... 17,254 (6,567) 31,736 (3,985) 10,865
-------- -------- ------- ------- --------
Cash and cash equivalents, beginning ...................................... 29,605 36,172 4,436 46,859 29,605
-------- -------- ------- ------- --------
Cash and cash equivalents, ending ......................................... $ 46,859 $ 29,605 $36,172 $42,874 $ 40,470
======== ======== ======= ======= ========
The accompanying notes are an integral part of these financial statements.
F-81
ACACIA TECHNOLOGIES GROUP
A DIVISION OF ACACIA RESEARCH CORPORATION
NOTES TO FINANCIAL STATEMENTS
1. DESCRIPTION OF BUSINESS
Acacia Research Corporation's continuing operations are comprised of two
separate divisions: the Acacia Technologies group and the CombiMatrix group
("groups").
The Acacia Technologies group is primarily comprised of Acacia Research
Corporation's interests in two wholly-owned media technologies subsidiaries: (1)
Soundview Technologies, Inc., a Delaware corporation and (2) Acacia Media
Technologies Corporation, a Delaware corporation, and also includes all
corporate assets, liabilities, and related transactions of Acacia Research
Corporation attributed to the Acacia Technologies group.
The Acacia Technologies group's media technology businesses own
intellectual property related to the telecommunications field, including a
television blanking system, also known as the "V-chip," which it licenses to
television manufacturers and a worldwide portfolio of pioneering patents
relating to audio and video transmission and receiving systems, commonly known
as audio-on-demand and video-on-demand, used for distributing content via
various methods including computer networks, cable television systems and direct
broadcasting satellite systems. Acacia Technologies group is responsible for the
development, licensing and protection of its intellectual property and
proprietary technologies. Acacia Technologies group continues to pursue both
licensing and strategic business alliances with companies in the technologies
industry.
In January 2001, Acacia Research Corporation completed an institutional
private equity financing raising gross proceeds of $19.0 million ($17.8 million,
net of issuance costs) through the issuance of 1,107,274 units. Proceeds from
this equity financing were attributed to Acacia Technologies group.
In the third quarter of 2000, Acacia Research Corporation completed a
private offering of 861,638 units at $27.50 per unit for gross proceeds of
approximately $23.7 million ($22.3 million, net of issuance costs). Proceeds
from this equity financing were attributed to Acacia Technologies group.
In the fourth quarter of 1999, Acacia Research Corporation completed an
institutional private equity financing raising gross proceeds of $21.0 million
($19.0 million, net of issuance costs) through the issuance of 974,771 units,
consisting of one share of Acacia Research Corporation's common stock and
one-half of a common stock purchase warrant. During the first quarter of 2000,
Acacia Research Corporation issued a 30-day redemption notice for these
warrants. As a result, all of these warrants were exercised prior to the
redemption date with Acacia Research Corporation receiving proceeds of
approximately $14.8 million. Proceeds from this equity financing were attributed
to Acacia Technologies group.
Acacia Research Corporation's cash and the cash held by its media
technology businesses, including all cash raised through Acacia Research
Corporation's offerings has been attributed to the technology group as these
funds are intended to support the media technology businesses of Acacia
Research.
SOUNDVIEW TECHNOLOGIES
In June 2001, Acacia Research Corporation's ownership interest in Soundview
Technologies, Incorporated ("Soundview Technologies") increased from 67% to
100%, following Soundview Technologies' completion of a stock repurchase
transaction with its former minority stockholders. Soundview Technologies
repurchased the stock of its former minority stockholders in exchange for a cash
payment and the grant to such stockholders of the right to receive 26% of future
net revenues generated by Soundview Technologies' current patent portfolio,
which includes its V-chip patent. As of December 31, 2001, total consideration
paid combined with amounts accrued pursuant to the stock repurchase agreements
totaled $2,767,000 ($2,550,000 paid in cash and $217,000 accrued as of December
31, 2001). The increase in Acacia Research Corporation's interest in Soundview
Technologies from 67% to 100% was accounted for as a step acquisition in
accordance with the purchase method of accounting. Accordingly, the purchase
price paid to date was allocated to the fair value of assets acquired and
liabilities assumed. The excess of
F-82
the purchase price paid over the fair market value of the net assets acquired of
$1,485,000 was assigned to patents. Contingent purchase consideration is
accounted for as an additional cost of the acquired enterprise.
During 2001, Soundview Technologies executed separate settlement and/or
license agreements with Samsung Electronics, Hitachi America, Ltd., LG
Electronics, Inc., Funai Electric Co. Ltd., Daewoo Electronics Corporation of
America, Sanyo Manufacturing Corporation, Thomson Multimedia, Inc., JVC Americas
Corporation, Matsushita Electric Industrial Co., Ltd. and Orion Electric Co.,
Ltd. In addition, Soundview Technologies settled its lawsuits with Pioneer
Electronics (USA) Incorporated, an affiliate of Pioneer Corporation, and
received payments from Philips Electronics pursuant to a settlement and license
agreement signed in December 2000. Certain of these license agreements
constitute settlements of patent infringement litigation brought by Soundview
Technologies. As of December 31, 2001, Soundview Technologies received one-time
license fee payments totaling $25,630,000 from the settlement and license
agreements and have granted non-exclusive, retroactive and future licenses of
Soundview Technologies' U.S. Patent No. 4,554,584 to the respective television
manufacturers. Certain of the settlement and license agreements provide for
future royalty payments to Soundview Technologies. The Acacia Technologies group
received and recognized as revenue $2,390,000, $10,000,000, $10,740,000 and
$1,000,000 of the license fee payments during the first, second, third and
fourth quarters of 2001, respectively. License fee payments received during 2001
totaling $1,500,000 are included in deferred revenues pursuant to the terms of
the respective agreements.
In the second quarter of 2000, Soundview Technologies announced that it
filed a federal patent infringement and antitrust lawsuit against Sony
Corporation of America, Philips Electronics North America Corporation, the
Consumer Electronics Manufacturers Association and the Electronics Industries
Alliance d/b/a Consumer Electronics Association. In its lawsuit, Soundview
Technologies alleged that Sony and Philips Television sets fitted with "V-chips"
infringe Soundview Technologies' patent and that the Consumer Electronics
Manufacturers Association had induced infringement of the patent.
ACACIA MEDIA TECHNOLOGIES
In November 2001, Acacia Research Corporation increased its ownership
interest in Acacia Media Technologies Corporation ("Acacia Media Technologies"),
formerly Greenwich Information Technologies LLC ("Greenwich"), from 33% to 100%
through the purchase of the ownership interest of the former limited liability
company's other member. In December 2001, Acacia Research Corporation converted
Greenwich from a limited liability company to a corporation and changed its name
to Acacia Media Technologies. The ownership interest purchase has been accounted
for as a purchase transaction in accordance with SFAS No. 141. The excess
purchase price was allocated to Acacia Media Technologies' patent portfolio and
is being amortized over the remaining economic life of the respective patents,
which is approximately 10 years. The results of operations have been included in
the statement of operations from the date of acquisition. Pro forma results of
operations have not been presented because the effects of these acquisitions
were not material on either an individual or aggregate basis.
Acacia Media Technologies owns a worldwide portfolio of pioneering patents
relating to audio and video transmission and receiving systems, commonly known
as audio-on-demand and video-on-demand, used for distributing content via
various methods including computer networks, cable television systems and direct
broadcasting satellite systems.
OTHER
The Acacia Technologies group includes the assets and liabilities of
Soundbreak.com, a 66.9% held subsidiary of Acacia Research Corporation which
ceased operations as of February 15, 2001. Accordingly, the Acacia Technologies
group has reported the results of operations and the estimated loss on disposal
of Soundbreak.com as results of discontinued operations in the 2000 and 1999
statements of operations.
The Acacia Technologies group conducts a portion of its investing activity
through a limited partnership, of which a wholly-owned subsidiary of Acacia
Research Corporation is the general partner. As a result of the significant
control that Acacia Research Corporation exercises over the limited partnership,
the assets and liabilities and results of operations have been consolidated by
Acacia Research Corporation at December 31, 2001. The assets, liabilities and
results of operations of the limited partnership, which includes certain health
sciences
F-83
securities, have been attributed to the Acacia Technologies group. Subsequent to
December 31, 2001, the limited partnership traded in certain derivative
financial instruments which to date have not been significant.
THE PROPOSED TRANSACTION
On March 20, 2002, Acacia Research Corporation's Board of Directors (the
"Board") approved a plan that would create two new classes of common stock
called Acacia Research Corporation - CombiMatrix common stock ("AR-CombiMatrix
stock") and Acacia Research Corporation - Acacia Technologies common stock
("AR-Acacia Technologies stock") (the "Recapitalization Proposal").
AR-CombiMatrix stock is intended to reflect separately the performance of the
CombiMatrix group. AR-Acacia Technologies stock is intended to reflect
separately the performance of Acacia Research Corporation's media technology
business. Each share of existing Acacia Research Corporation common stock would
be converted into approximately 0.5582 of a share of AR-CombiMatrix stock and
one share of AR-Acacia Technologies stock. Acacia Research Corporation intends
to list the AR-CombiMatrix stock and the AR-Acacia Technologies stock on the
NASDAQ National Market System under the symbols "CBMX" and "ACTG", respectively.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION. AR-Acacia Technologies stock is intended to reflect
the separate performance of the respective division of Acacia Research
Corporation. The Acacia Technologies group is not a separate legal entity.
Holders of AR-Acacia Technologies stock will be stockholders of Acacia Research
Corporation. As a result, holders of AR-Acacia Technologies stock will continue
to be subject to all of the risks of an investment in Acacia Research
Corporation and all of its businesses, assets and liabilities. The assets Acacia
Research Corporation attributes to Acacia Technologies could be subject to the
liabilities of the CombiMatrix group.
The Acacia Technologies group financial statements have been prepared in
accordance with generally accepted accounting principles in the United States of
America, and taken together with the CombiMatrix group financial statements,
comprise all the accounts included in the corresponding consolidated financial
statements of Acacia Research Corporation. The financial statements of Acacia
Technologies group reflect the financial condition, results of operations, and
cash flows of the businesses included therein. The financial statements of the
Acacia Technologies group include the accounts or assets of Acacia Research
Corporation specifically attributed to the Acacia Technologies group and were
prepared using amounts included in Acacia Research Corporation's consolidated
financial statements.
Minority interests represents participation of other stockholders in the
allocated net assets and in the division earnings and losses of the Acacia
Technologies group and is reflected in the caption "Minority interests" in the
Acacia Technologies group financial statements. Minority interests adjust the
Acacia Technologies group's share of the division's earnings or loss of
non-wholly owned subsidiaries.
Financial effects arising from one group that affect Acacia Research
Corporation's results of operations or financial condition could, if
significant, affect the results of operations or financial condition of the
other group and the market price of the class of common stock relating to the
other group. Any division net losses of the CombiMatrix group or the Acacia
Technologies group and dividends or distributions on, or repurchases of,
AR-CombiMatrix stock or AR-Acacia Technologies stock or repurchases of preferred
stock of Acacia Research Corporation will reduce the assets of Acacia Research
Corporation legally available for payment of dividends on AR-CombiMatrix stock
or AR-Acacia Technologies stock.
MANAGEMENT ALLOCATION POLICIES. The management and allocation policies
applicable to the preparation of the financial statements of the CombiMatrix
group and the Acacia Technologies group may be modified or rescinded, or
additional policies may be adopted, at the sole discretion of the Board at any
time without approval of the stockholders. The Acacia Technologies group
financial statements reflect the application of the management and allocation
policies adopted by the Board to various corporate activities, as described
below. Management has no plans to change allocation methods or the composition
of the groups. The Acacia Technologies group financial statements should be read
in conjunction with the Acacia Research Corporation consolidated financial
statements and related notes.
F-84
TREASURY AND CASH MANAGEMENT POLICIES. Cash and short -term investments
were allocated to the groups based on the respective cash and short term
investments balances of the entities comprising each group. Corporate cash
balances have been attributed to the Acacia Technologies group. All cash raised
by CombiMatrix Corporation and Advanced Material Sciences has been allocated to
the CombiMatrix group. Acacia Research Corporation does not currently have any
short term or long-term debt. Should debt arise in future periods, Acacia
Research Corporation will attribute each future incurrence or issuance of
external debt or preferred stock (and the proceeds thereof) between the groups
or entirely to one group as described below. Acacia Research Corporation will
manage most treasury and cash management activities on a de-centralized basis,
with each separate group separately managing its own treasury activities.
Pursuant to treasury and cash management policies adopted by the Board, after
the date on which AR-CombiMatrix stock and AR-Acacia Technologies stock is first
issued, the following will apply:
o Acacia Research Corporation will attribute each future issuance of
AR-Acacia Technologies stock (and the proceeds thereof) to the Acacia
Technologies group and will attribute each future issuance of
AR-CombiMatrix stock (and the proceeds thereof) to the CombiMatrix
group;
o Acacia Research Corporation will attribute each future incurrence or
issuance of external debt or preferred stock (and the proceeds
thereof) between the Acacia Research Corporation or entirely to one
group as determined by the Board, based on the extent to which Acacia
Research Corporation incurs or issues the debt or preferred stock for
the benefit of the CombiMatrix group or the Acacia Technologies group;
o Dividends on AR-Acacia Technologies stock will be charged against the
Acacia Technologies group, and dividends on AR-CombiMatrix stock will
be charged against the CombiMatrix group;
o Repurchases of AR-Acacia Technologies stock will be charged against
the Acacia Technologies group and repurchases of AR-CombiMatrix stock
will be charged against the CombiMatrix group;
o As of immediately prior to the first issuance of AR-CombiMatrix stock
and AR-Acacia Technologies stock, the CombiMatrix group and the Acacia
Technologies group shall be deemed to be allocated the cash and cash
equivalents held by the respective groups as of that date;
o Acacia Research Corporation will account for any cash transfers from
Acacia Research Corporation to or for the account of a group, from a
group to or for the account of Acacia Research Corporation, or from
one group to or for the account of the other group (other than
transfers in return for assets or services rendered) as short-term
loans unless (A) the Board determines that a given transfer (or type
of transfer) should be accounted for as a long-term loan, (B) the
Board determines that a given transfer (or type of transfer) should be
accounted for as a capital contribution or (iii) the Board determines
that a given transfer (or type of transfer) should be accounted for as
a return of capital. There are no specific criteria to determine when
Acacia Research Corporation will account for a cash transfer as a
long-term loan, a capital contribution or a return of capital rather
than an inter-group revolving credit advance; provided, however, that
cash advances from Acacia Research Corporation to the Acacia
Technologies group or to the CombiMatrix group up to $25 million on a
cumulative basis shall be accounted for as short-term or long-term
loans at interest rates at which Acacia Research Corporation could
borrow such funds and shall not be accounted for as a capital
contribution. The Board will make such a determination in the exercise
of its business judgment at the time of such transfer based upon all
relevant circumstances. Factors the Board may consider include,
without limitation, the current and projected capital structure of
each group; the financing needs and objectives of the recipient group;
the availability, cost and time associated with alternative financing
sources; and prevailing interest rates and general economic
conditions; and
o Any cash transfers accounted for as short-term loans will bear
interest at the rate at which Acacia Research Corporation could borrow
such funds. In addition, any cash transfers accounted for as a
long-term loan will have interest rates, amortization, maturity,
redemption and other terms that reflect the then-prevailing terms on
which Acacia Research Corporation could borrow such funds.
F-85
ASSETS AND LIABILITIES. Acacia Research Corporation's assets and
liabilities have been attributed to the Acacia Technologies group and the
CombiMatrix group based on the respective asset and liabilities balances of the
entities comprising each group. Intangible assets recorded at the Acacia
Research Corporation level, primarily consisting of acquired patents and
goodwill balances, have been attributed to the respective groups to which the
intangibles and goodwill relate.
CORPORATE GENERAL AND ADMINISTRATIVE SERVICES AND FACILITIES. Acacia
Research Corporation allocates the cost of corporate general and administrative
services and facilities between the groups generally based upon utilization.
Where determinations based on utilization alone are impracticable, Acacia
Research Corporation will use other methods and criteria that management
believes to be equitable and to provide a reasonable estimate of the cost
attributable to each group. Except as otherwise determined by management, the
allocated costs of providing such services and facilities include, without
limitation, all costs and expenses of personnel employed in connection with such
services and facilities, including, without limitation, all direct costs of such
personnel, such as payroll, payroll taxes and fringe benefit costs (calculated
at the appropriate annual composite rate therefor) and all overhead costs and
expenses directly related to such personnel and the services or facilities
provided by them. In addition, allocated costs include all materials used in
connection with such services or facilities, billed at their net cost to the
provider of the services or facilities plus all overhead costs and expenses
related to such materials.
Except as may otherwise be specifically provided pursuant to the terms of
any agreements among Acacia Research Corporation and the groups or any
resolutions of the Board, the corporate general and administrative services and
facilities to be allocated between the groups include, without limitation, legal
services, accounting services (tax and financial), insurance and deductibles
payable in connection therewith, employee benefit plans and administration
thereof, investor relations, stockholder services, and services relating to the
Board.
Direct salaries, payroll taxes and fringe benefits are allocated to the
groups based on the percentage of actual time incurred by specific employees to
total annual time available and direct costs including, postage, insurance,
legal fees, accounting and tax and other are allocated to the groups based on
specific identification of costs incurred on behalf of each group. Other direct
costs, including direct depreciation expense, computer costs, general office
supplies and rent are allocated to the groups based on the ratio of direct
salaries to total salaries. Indirect costs, including indirect salaries and
benefits, investor relations, rent, general office supplies and indirect
depreciation are allocated to the groups based on the ratio of direct salaries
for each group to total direct salaries. Included in the marketing, general and
administrative expenses of the Acacia Technologies group are allocated corporate
charges of $4.6 million, $7.7 million and $3.1 million relating to the periods
ending December 31, 2001, 2000 and 1999, respectively.
Management believes that the methods and criteria used to allocate costs
are equitable and provide a reasonable approximation of the cost attributable to
the groups. Based on the allocation methods used, the Acacia Research
Corporation believes that the allocation of expenses as presented in the
accompanying financial statements for the groups reflects a reasonable
estimation of expenses that would be recognized if the groups were separate
stand alone registrants.
ALLOCATION OF FEDERAL AND STATE INCOME TAXES. Acacia Research Corporation
determines its federal income taxes and the federal income taxes of its
subsidiaries that own assets allocated between the groups on a consolidated
basis. Acacia Research Corporation allocates consolidated federal income tax
provisions and related tax payments or refunds between the Acacia Technologies
group and the CombiMatrix group based principally on the taxable income and tax
credits directly attributable to each group. Such allocations reflect each
group's contribution, whether positive or negative, to Acacia Research
Corporation's consolidated federal taxable income and consolidated federal tax
liability and tax credit position. Acacia Research Corporation will credit tax
benefits that cannot be used by the group generating those benefits but can be
used on a consolidated basis to the group that generated such benefits.
Inter-group transactions will be treated as taxed as if each group was a
stand-alone company.
Depending on the tax laws of the respective jurisdictions, state and local
income taxes are calculated on either a consolidated or combined basis between
the groups based on their respective contribution to such consolidated or
combined state taxable incomes. State and local income tax provisions and
related tax payments or refunds which are determined on a separate corporation
basis will be allocated between the groups in a manner
F-86
designed to reflect the respective contributions of the groups to Acacia
Research Corporation's separate or local taxable income.
REVENUE RECOGNITION. The Acacia Technologies group recognizes revenue in
accordance with Staff Accounting Bulletin No. 101, "Revenue Recognition in
Financial Statements" ("SAB No. 101"). License fee income is recognized as
revenue when (i) persuasive evidence of an arrangement exists, (ii) all
obligations have been performed pursuant to the terms of the license agreement,
(iii) amounts are fixed or determinable and (iv) collectibility of amounts is
reasonably assured.
Deferred revenue arises from payments received in advance of the
culmination of the earnings process. Deferred revenue expected to be recognized
within the next twelve months is classified as a current liability. At December
31, 2001, the Acacia Technologies group recorded $1.5 million as deferred
revenues related to payments received under multiple-element arrangements and
other advances, which will be recognized as revenue in future periods when the
applicable revenue recognition criteria as described above are met. Direct costs
related to the deferred revenues totaling $0.7 million have been deferred at
December 31, 2001 and will be charged to income when the related revenues are
recognized.
CASH AND CASH EQUIVALENTS. The Acacia Technologies group considers all
highly liquid, short-term investments with original maturities of three months
or less when purchased to be cash equivalents.
SHORT-TERM INVESTMENTS. The Acacia Technologies group's short-term
investments are held in a variety of interest bearing instruments including
high-grade corporate bonds, commercial paper, money market accounts and other
marketable securities. Investments in securities with maturities of greater than
three months and less than one year are classified as short-term investments.
Investments are classified into categories in accordance with the provisions of
Statement of Financial Accounting Standards No. 115, "Accounting for Certain
Investments in Debt and Equity Securities" ("SFAS No. 115"). Certain of the
Acacia Technologies group's investments are classified as trading securities,
which are reported at fair value. Realized and unrealized gains and losses in
the value of trading securities are included in division net income (loss) in
the statements of operations. At December 31, 2001, short-term investments
consist of trading securities with a fair value of $4.4 million.
The fair value of the Acacia Technologies group's investments is primarily
determined by quoted market prices. Realized and unrealized gains and losses are
recorded based on the specific identification method. For investments classified
as available-for-sale, unrealized losses that are other than temporary are
recognized in division net income (loss).
CONCENTRATION OF CREDIT RISKS. Cash and cash equivalents are invested in
deposits with certain financial institutions and may, at times, exceed federally
insured limits. The Acacia Technologies group' has not experienced any losses on
its deposits of cash and cash equivalents.
PROPERTY AND EQUIPMENT. Property and equipment are recorded at cost. Major
additions and improvements are capitalized. When these assets are sold or
otherwise disposed of, the asset and related depreciation are relieved, and any
gain or loss is included in income for the period of sale or disposal.
Depreciation is computed on a straight-line basis over the estimated useful
lives of the assets, ranging from three to ten years.
ORGANIZATION COSTS. Costs of start-up activities, including organization
costs, are expensed as incurred.
PATENTS AND GOODWILL. Patents, once issued, and goodwill are amortized on
the straight-line method over their estimated remaining useful lives, ranging
from three to twenty years. Amortization charged to operations relating to
goodwill amounted to $215,000, $478,000 and $434,000 at December 31, 2001, 2000
and 1999, respectively. Accumulated amortization of goodwill amounted to
$2,258,000 and $1,363,000 at December 31, 2001 and 2000, respectively.
Amortization charged to operations relating to patents amounted to $1,277,000,
$1,159,000 and $1,157,000 at December 31, 2001, 2000 and 1999, respectively.
Accumulated amortization of patents amounted to $5,144,000 and $3,868,000 at
December 31, 2001 and 2000, respectively.
F-87
IMPAIRMENT OF LONG-LIVED ASSETS. Long-lived assets and intangible assets
are reviewed for potential impairment when events or changes in circumstances
indicate the carrying amount of an asset may not be recoverable. In the event
the sum of the expected undiscounted future cash flows resulting from the use of
the asset is less than the carrying amount of the asset, an impairment loss
equal to the excess of the asset's carrying value over its fair value is
recorded. If an asset is determined to be impaired, the loss is measured based
on quoted market prices in active markets, if available. If quoted market prices
are not available, the estimate of fair value is based on various valuation
techniques, including a discounted value of estimated future cash flows.
FAIR VALUE OF FINANCIAL INSTRUMENTS. The carrying value of cash and cash
equivalents, other receivables, accounts payable and accrued expenses
approximate fair value due to their short-term maturity. The fair values of
investments are primarily determined by quoted market prices.
STOCK-BASED COMPENSATION. Compensation cost of stock options issued to
employees is accounted for in accordance with Accounting Principles Board
("APB") Opinion No. 25, "Accounting for Stock Issued to Employees" ("APB No.
25") and related interpretations. Compensation cost attributable to such options
is recognized based on the difference, if any, between the closing market price
of the stock on the date of grant and the exercise price of the option.
Compensation cost is deferred and amortized on an accelerated basis over the
vesting period of the individual option awards using the amortization method
prescribed in Financial Accounting Standards Board ("FASB") Interpretation No.
28, "Accounting for Stock Appreciation Rights and Other Variable Stock Option or
Award Plans" ("FIN No. 28"). The Acacia Technologies group' has adopted the
disclosure only requirements of SFAS No. 123, "Accounting for Stock-Based
Compensation" with respect to options issued to employees. Compensation cost of
stock options and warrants issued to non-employee service providers is accounted
for under the fair value method required by SFAS No. 123 and related
interpretations.
SEGMENTS. The Acacia Technologies group follows SFAS No. 131, "Disclosure
about Segments of an Enterprise and Related Information," which establishes
annual and interim reporting standards for an enterprise's operating segments
and related disclosures about its products, services, geographic areas and major
customers. Management has determined that the group operates in one segment.
The segment disclosure included in Note 13 to Acacia Research Corporation's
consolidated financial statements reflects the information that our chief
operating decision maker regularly reviews to assess performance and make
decisions about resource allocation. This information is presented in accordance
with SFAS No. 131, "Disclosures About Segments of an Enterprise and Related
Information." ("SFAS No. 131"). We believe that investors in our new classes of
common stock will be better served by also having more detailed financial
information about our segments or groups in the form of full group financial
statements. However, in order to appropriately report this expanded financial
information in accordance with generally accepted accounting principles,
differences exist, including the effect of "push down accounting" for certain
intangibles and further allocation of certain corporate charges to the different
groups.
If the recapitalization and merger are approved, Acacia Research
Corporation management intends to reformat its segment reporting, in accordance
with the applicable provisions of SFAS No, 131, to reflect the attribution of
assets and liabilities and the allocation of expenditures consistent with the
proposed management and allocation policies, as this information is the
information that will be used by Acacia Research Corporation's chief operating
decision maker to allocate resources and make decisions relating to each
division and to Acacia Research as a whole.
USE OF ESTIMATES. The preparation of financial statements in conformity
with generally accepted accounting principles in the United States of America
requires management to make estimates and assumptions that affect the reported
amount of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results could differ
from these estimates.
LOSS PER SHARE. Historical per share information is omitted from the Acacia
Technologies group statements of operations because AR-Acacia Technologies stock
was not part of the capital structure of Acacia Research Corporation for the
periods presented. Following implementation of the Recapitalization Proposal,
earnings per share for AR-CombiMatrix stock and AR-Acacia Technologies stock
will be computed using the two-
F-88
class method in accordance with SFAS No. 128 "Earnings per Share," in the Acacia
Research Corporation consolidated financial statements.
RECENT ACCOUNTING PRONOUNCEMENTS. In June 2001, the FASB issued SFAS No.
141, "Business Combinations" ("SFAS No. 141"), and SFAS No. 142, "Goodwill and
Other Intangible Assets" ("SFAS No. 142"). SFAS No. 141 addresses financial
accounting and reporting for business combinations and supersedes APB Opinion
No. 16, "Business Combinations." Changes made by SFAS No. 141 include (1)
requiring the purchase method of accounting be used for all business
combinations initiated after June 30, 2001 and (2) established specific criteria
for the recognition of intangible assets separately from goodwill. These
provisions are effective for business combinations for which the date of
acquisition is subsequent to June 30, 2001.
SFAS No. 142 addresses how goodwill and other intangible assets should be
accounted for after they have been initially recognized in the financial
statements. This standard provides that goodwill is not subject to amortization.
Instead, it is subject to a periodic review that must occur at least annually at
a reporting unit level for possible impairment. This review is known as the
"two-step" impairment test and provides that the initial "first-step" reviews of
each reporting unit must be completed within six months of the adoption of the
standard. The "first step" of the goodwill impairment test, used to identify
potential impairment, compares the fair value of a reporting unit with its
carrying amount, including goodwill. The fair value of the Acacia Technologies
group's one reporting unit will be estimated using the expected present value of
future cash flows, based on the characteristics of the reporting unit including
discount rates and growth rates based on management's estimates. If upon
completion of these initial reviews an impairment of goodwill is indicated, the
"second step" will be performed which will compare the implied fair value of
each reporting unit goodwill with the carrying amount of goodwill. While the
Acacia Technologies group has yet to complete the initial review, management
expects to do so during the second quarter of 2002. The "second step" of the
valuation of the impairment, if necessary, is to occur as soon as possible, but
no later than the end of the Acacia Technologies group's current fiscal year.
Any impairment resulting from the "second step" would be reported as a change in
accounting principle and would require retroactive recognition to the beginning
of this fiscal year. The Acacia Technologies group currently does not expect to
record an impairment charge upon completion of the impairment review; however,
there can be no assurance that at the time the review is completed a material
impairment charge will not be recorded. The Acacia Technologies group has
$1,776,000 of goodwill at December 31, 2001 (net of $2,258,000 of accumulated
amortization) and recorded approximately $216,000 of goodwill amortization
expense during 2001. The only identifiable intangible assets are patents of
$5,554,000 at December 31, 2001 (net of $5,144,000 of accumulated amortization),
which the Acacia Technologies group does not expect to be impacted by the
adoption of this standard.
The Acacia Technologies group adopted SFAS No. 142 effective January 1,
2002 and ceased amortizing goodwill on that date. (See also Note 11.) Division
net income (loss), adjusted to exclude goodwill amortization expense, for the
twelve months ended December 31, 2001, 2000 and 1999, are as follows (in
thousands):
FOR THE YEARS ENDED DECEMBER 31,
--------------------------------
2001 2000 1999
------ -------- --------
Reported net income (loss) $5,757 $(24,197) $(6,594)
Add back: Goodwill amortization 216 451 435
------ -------- -------
Adjusted net income (loss) $5,973 $(23,746) $(6,159)
====== ======== =======
The gross carrying amounts and accumulated amortization related to acquired
intangible assets, all related to patents, as of December 31, 2001 and 2000, are
as follows (in thousand):
AT DECEMBER 31,
-----------------
2001 2000
------- -------
Gross carrying amount - patents $10,698 $ 6,083
Accumulated amortization (5,144) (3,868)
------- -------
Patents, net $ 5,554 $ 2,215
======= =======
F-89
The estimated aggregate amortization expense for each of the five
succeeding years is as follows (in thousands):
ESTIMATED
AMORTIZATION
YEAR ENDED DECEMBER 31, EXPENSE
----------------------- ------------
2002 1,522
2003 500
2004 500
2005 500
2006 500
At December 31, 2001, all of the Acacia Technologies group's acquired
intangible assets were subject to amortization.
In August 2001, the FASB issued SFAS No. 144, "Accounting for the
Impairment or Disposal of Long-Lived Assets" ("SFAS No. 144"), which addresses
financial accounting and reporting for the impairment of long-lived assets and
for long-lived assets to be disposed of. SFAS No. 144 supersedes SFAS No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
Be Disposed Of." SFAS No. 144 also supersedes the accounting and reporting
provisions of APB Opinion No. 30, "Reporting the Results of Operations -
Reporting the Effects of Disposal of a Segment of a Business, and Extraordinary,
Unusual and Infrequently Occurring Events and Transactions," for segments of a
business to be disposed of. SFAS No. 144 also amends ARB No. 51, "Consolidated
Financial Statements," to eliminate the exception to consolidation for a
temporarily controlled subsidiary. SFAS No. 144 requires long-lived assets to be
tested for recoverability whenever events or changes in circumstances indicate
that its carrying amount may not be recoverable. In conjunction with such tests,
it may be necessary to review depreciation estimates and methods as required by
APB Opinion No. 20, "Accounting Changes," or the amortization period as required
by SFAS No. 142. The Acacia Technologies group adopted SFAS No. 144 effective
January 1, 2002. Management is currently assessing the impact of SFAS No. 144 on
the Acacia Technologies group financial position and results of operations.
3. PROPERTY AND EQUIPMENT
Property and equipment consists of the following at December 31, 2001 and
2000 (in thousands):
2001 2000
----- ------
Furniture and fixtures............ $ 320 $ 440
Computer hardware and software.... 320 670
Leasehold improvements............ 185 156
----- ------
825 1,266
Less: accumulated depreciation.... (467) (395)
----- ------
$ 358 $ 871
===== ======
Depreciation expense was $218,000, $206,000 and $148,000 for the years
ended December 31, 2001, 2000 and 1999, respectively.
F-90
4. ACCOUNTS PAYABLE, ACCRUED EXPENSES AND OTHER
Accounts payable, accrued expenses and other consists of the following at
December 31, 2001 and December 31, 2000 (in thousands):
2001 2000
------ ------
Accounts payable ........................................... $ 210 $ 61
Payroll, vacation and other employee benefits .............. 415 257
Accrued liabilities of discontinued operations ............. 1,342 3,599
Taxes payable .............................................. 356 --
Accrued stockholder redemption payments .................... 217 --
Other accrued liabilities .................................. 385 1,158
------ ------
$2,925 $5,075
====== ======
5. INVESTMENTS IN AFFILIATES
In the first quarter of 2000, Acacia Research Corporation acquired a 7.6%
interest in Advanced Data Exchange for $3.0 million out of a $17.3 million
private placement of "non-voting" Series B preferred stock. Advanced Data
Exchange is a corporation engaged in business-to-business Internet exchange
transactions that allow mid-sized companies to exchange purchase orders,
purchase order acknowledgments, advance ship notices, invoices and other
business documents over the Internet with supply chain partners and emerging
digital marketplaces. Subsequent to an additional $30.0 million equity financing
completed in the second quarter of 2000, Acacia Research Corporation currently
owns a 4.9% interest in Advanced Data Exchange and has no board of directors
representation. Acacia Research Corporation does not have the ability to control
decision making at Advanced Data Exchange.
In the fourth quarter of 2000, in connection with a review of the carrying
value of Acacia Research Corporation's investment portfolio, it determined that
certain of its early stage investments accounted for under the equity method and
certain consolidated subsidiaries had experienced significant losses in value
that were determined to be other than temporary. The decline in value of these
investments, which were primarily start up phase businesses, was attributed to
the existence of continuing operating losses, management's determination that
the associated business models were no longer viable and in some cases the
cessation of operations of the respective entities, and management's assessment
that such investments were not recoverable. Acacia Technologies group recorded
$1,016,000 in write-offs of early stage investments and $2,603,000 in write-offs
of certain equity investments. The investments written-off were not individually
material.
6. PROVISIONS FOR INCOME TAXES
Acacia Technologies group's allocated provision (benefit) for income taxes
consists of the following (in thousands):
2001 2000 1999
---- ---- ----
Current:
U.S. Federal tax ....................................... $776 $ 3 $12
State taxes ............................................ 183 3 6
---- --- ---
959 6 18
---- --- ---
Deferred:
U.S. Federal tax ....................................... (24) -- --
State taxes ............................................ -- -- --
---- --- ---
(24) -- --
---- --- ---
$935 $ 6 $18
==== === ===
F-91
The tax effects of temporary differences and carryforwards that give rise
to significant portions of deferred assets and liabilities consist of the
following at December 31, 2001 and 2000 (in thousands):
2001 2000
-------- --------
Basis of investments in affiliates ...................... $ 16,920 $ 9,362
Intangibles ............................................. (1,298) --
Depreciation and amortization ........................... 37 (74)
Stock compensation ...................................... 733 507
Accrued liabilities ..................................... 545 711
Net operating loss carryforwards and credits ............ 11,222 21,623
-------- --------
28,159 32,129
Less: valuation allowance ............................... (29,457) (32,129)
-------- --------
$ (1,298) $ --
======== ========
At December 31, 2001, Acacia Technologies group had U.S. Federal and
California state income tax net operating loss carry forwards ("NOLs") of
approximately $29,680,000 and $16,531,000, expiring between 2002 and 2021. In
addition, the Company had tax credit carryforwards of approximately $102,000.
As of December 31, 2001, the aggregate tax NOLs at other non-consolidating
subsidiaries are $46,399,000 and $8,999,000 for federal and state income tax
purposes, respectively, expiring between 2001 and 2021. The other
non-consolidating subsidiaries have tax credit carryforwards of approximately
$27,000. However, the use of these NOLs and tax credits are limited to the
separate earnings of the respective subsidiaries. In addition, ownership changes
may also restrict the use of NOLs and tax credits.
7. DISCONTINUED OPERATIONS
On February 13, 2001, the board of directors of Soundbreak.com Incorporated
("Soundbreak.com"), a majority-owned subsidiary of Acacia Research Corporation,
resolved to cease operations as of February 15, 2001 and liquidate the remaining
assets and liabilities of the subsidiary. Accordingly, Acacia Technologies group
has reported the results of operations and the estimated loss on disposal of
Soundbreak.com as discontinued operations in the 2000 statements of operations.
Following is summary financial information for the discontinued operations
(In thousands):
2000 1999
------- -------
Net sales ................................................. $ 4 $ --
======= =======
Loss from discontinued operations:
Before minority interests .............................. $16,437 $ 1,784
Minority interests ..................................... (8,994) (1,008)
------- -------
Net .................................................... $ 7,443 $ 776
======= =======
Estimated loss on disposal:
Before minority interests .............................. $ 5,066 $ --
Minority interests ..................................... (2,955) --
------- -------
Net .................................................... $ 2,111 $ --
======= =======
Discontinued operations did not have an impact on the December 31, 2001
Acacia Technologies group statement of operations.
The assets and liabilities of the discontinued operations at December 31,
2001 consist primarily of $4,014,000 of cash and cash equivalents and $1,342,000
of accounts payable and accrued expenses.
F-92
The assets and liabilities of the discontinued operations at December 31,
2000 primarily consist of $6,620,000 of cash and cash equivalents, $10,000 of
management fees and other receivables, $74,000 of prepaid expenses, $164,000 of
other assets, $207,000 in property and equipment and $3,599,000 of accounts
payable and accrued expenses.
8. COMMITMENTS AND CONTINGENCIES
OPERATING LEASES
Acacia Technologies group leases certain office furniture and equipment and
office space under various operating lease agreements expiring over the next 2
years. Minimum annual rental commitments for Acacia Technologies group operating
leases of continuing operations having initial or remaining non-cancelable lease
terms in excess of one year are as follows (In thousands):
YEAR
----
2002...................................... $190
2003...................................... 174
----
Total minimum lease payments.............. $364
====
Rent expense of continuing operations for the years ended December 31,
2001, 2000 and 1999 approximated $529,000, $621,000 and $172,000, respectively.
LITIGATION
Acacia Technologies group is subject to other claims and legal actions that
arise in the ordinary course of business. Management believes that the ultimate
liability with respect to these claims and legal actions, if any, will not have
a material effect on the Acacia Technologies group's financial position, results
of operations or cash flows. However, the Acacia Technologies group could be
subject to claims and legal actions relating to the CombiMatrix group.
9. ALLOCATED NET WORTH
The Acacia Technologies group statement of allocated net worth presents the
equity transactions of Acacia Research Corporation which are attributed to the
Acacia Technologies group as "Net assets attributed to the Acacia Technologies
group". This presentation reflects the fact that the Acacia Technologies group
does not have legally issued common or preferred stock, nor are warrant
issuances or employee stock transactions legal transactions of the Acacia
Technologies group. Presented below is a detail of the equity transactions of
Acacia Research Corporation which relate to the businesses of the Acacia
Technologies group and which therefore comprise the balances reflected in the
group's "Net assets attributed to Acacia Technologies group."
F-93
ACACIA
TECHNOLOGIES
GROUP
------------
1999
Units issued in private placements, net $16,773
Allocated corporate charges (311)
Shares issued to purchase equity investments 288
Stock options exercised 758
Warrants exercised 14,444
Increase in capital due to issuance of stock by subsidiaries 262
Compensation expense relating to stock options and warrants 27
--------
Net assets attributed to the Acacia Technologies group - 1999 $32,241
========
2000
Units issued in private placements, net $ 2,786
Allocated corporate charges (783)
Stock options exercised 2,132
Warrants exercised 4,820
Change in capital due to issuance of stock by subsidiaries 126
Compensation expense relating to stock options and warrants 599
--------
Net assets attributed to the Acacia Technologies group - 2000 $ 9,680
========
2001
Allocated corporate charges $(1,118)
Units issued in private placement, net 18,361
Stock options exercised 1,252
Change in capital due to issuance of stock by subsidiaries 737
Compensation expense relating to stock options and warrants 47
Stock dividend (2)
--------
Net assets attributed to the Acacia Technologies group - 2001 $19,277
========
FOR THE SIX MONTHS ENDED JUNE 30, 2002 (UNAUDITED)
Allocated corporate charges $ (561)
Stock options exercised 136
Compensation expense relating to stock options and warrants 15
--------
Net assets attributed to the Acacia Technologies group
For the Six Months Ended June 30, 2002 $ (410)
========
10. SUBSEQUENT EVENTS
In February 2002, in conjunction with the relocation of Acacia Research
Corporation's corporate headquarters, Acacia Research Corporation entered into a
non-cancelable lease agreement to lease approximately 7,143 square feet of
office space in Newport Beach, California through February 2007. Minimum annual
rental
F-94
commitments under this operating lease are $255,000 in 2002; $286,000 in 2003;
$295,000 in 2004; $303,000 in 2005; $312,000 in 2006; and $39,000, thereafter.
Such operating lease expense will be allocated to the groups.
In March 2002, the Board approved the 2002 AR-CombiMatrix Stock Incentive
Plan (the "CombiMatrix Plan") and the 2002 AR-Acacia Technologies Stock
Incentive Plan (the "Acacia Technologies Plan"), subject to stockholder
approval. The CombiMatrix Plan authorizes grants of stock options, stock awards
and performance shares with respect to the AR-CombiMatrix stock. The Acacia
Technologies Plan authorizes grants of stock options, stock awards and
performance shares with respect to the AR-Acacia Technologies stock. It is
intended, that certain directors, officers and key employees of Acacia Research
Corporation with responsibilities involving both the CombiMatrix group and the
Acacia Technologies group and certain key employees of each group may be granted
awards under both incentive plans in a manner which reflects their
responsibilities. The Board believes that permitting incentive awards to be made
to participants with respect to the class of common stock which reflects the
performance of the Acacia Technologies group's business in which the
participants work and, in certain cases the other group, is in the best interest
of Acacia and its stockholders.
If the recapitalization is implemented, each outstanding stock option under
Acacia Research Corporation's existing stock option plans will be converted into
separately exercisable options to acquire approximately 0.5582 of a share of
AR-CombiMatrix stock and one share of AR-Acacia Technologies stock. The exercise
price for the resulting AR-Acacia Technologies stock options and AR-CombiMatrix
stock options will be calculated by multiplying the exercise price under such
existing stock option by a fraction, the numerator of which is the opening price
of the applicable class of common stock underlying such option on the first date
such stocks are traded after the recapitalization, and the denominator of which
is the sum of such prices for the AR-CombiMatrix stock and the AR-Acacia
Technologies stock.
If the recapitalization is implemented, warrants to purchase shares of
existing common stock will become exercisable for a number of shares of
AR-CombiMatrix stock and a number of shares of AR-Acacia Technologies stock
equal to the numbers of shares which the holder of such warrant would receive in
the recapitalization had such warrant been exercised immediately prior to the
recapitalization. The warrants will not be separately exercisable into solely
AR-CombiMatrix stock or solely AR-Acacia Technologies stock. The exercise price
and expiration date of each warrant will not be affected by the
recapitalization.
11. SUPPLEMENTAL CASH FLOW INFORMATION (IN THOUSANDS)
FOR THE YEARS ENDED
DECEMBER 31,
-------------------
2001 2000 1999
----- ---- ----
Supplemental disclosures of cash flow information:
Cash paid for income taxes ......................................... $597 $-- $ 7
Supplemental schedule of non-cash investing and financing activities:
Liabilities assumed in acquisition of minority ownership interest in
subsidiary ....................................................... 200 -- --
Accrued payments for purchase of common stock from former minority
stockholders of subsidiary ....................................... 217 -- --
12. INTERIM FINANCIAL INFORMATION (UNAUDITED)
UNAUDITED INTERIM INFORMATION
The unaudited Acacia Technologies group financial statements as of June 30,
2002, and for the three and six month periods ended June 30, 2002 and 2001, have
been prepared in accordance with generally accepted accounting principles for
interim financial information. These interim financial statements should be read
in conjunction with the Acacia Technologies group financial statements and
Acacia Research Corporation's financial statements and notes thereto for the
year ended December 31, 2001.
The Acacia Technologies group financial statements include all adjustments
of a normal recurring nature which, in the opinion of management, are necessary
for a fair presentation of its financial position as of June 30,
F-95
2002, the results of its operations for the three and six months ended June 30,
2002 and 2001, its cash flows for the six months ended June 30, 2002 and 2001
and allocated net worth for the six months ended June 30, 2002. The results of
operations for the three and six months ended June 30, 2002 are not necessarily
indicative of the results to be expected for the entire year.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 2001, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 141, "Business
Combinations" ("SFAS No. 141"), and SFAS No. 142, "Goodwill and Other Intangible
Assets" ("SFAS No. 142"). SFAS No. 141 addresses financial accounting and
reporting for business combinations and supersedes Accounting Principles Board
("APB") Opinion No. 16, "Business Combinations." Changes made by SFAS No. 141
include (1) requiring the purchase method of accounting be used for all business
combinations initiated after June 30, 2001 and (2) establishing specific
criteria for the recognition of intangible assets separately from goodwill.
These provisions are effective for business combinations for which the date of
acquisition is subsequent to June 30, 2001.
The Acacia Technologies group adopted SFAS No. 142 effective January 1,
2002 and ceased amortizing goodwill on that date. SFAS No. 142 addresses how
goodwill and other intangible assets should be accounted for after they have
been initially recognized in the financial statements. This standard provides
that goodwill is not subject to amortization. Instead, it is subject to a
periodic review that must occur at least annually at a reporting unit level for
possible impairment. This review is known as the "two-step" impairment test and
provides that the initial "first-step" reviews of each reporting unit must be
completed within six months of the adoption of the standard. The "first-step" of
the goodwill impairment test, used to identify potential impairment, compares
the fair value of each reporting unit with its carrying amount, including
goodwill. If upon completion of these initial reviews an impairment of goodwill
is indicated, the "second-step" is required to be performed, which will compare
the implied fair value of each reporting unit goodwill with the carrying amount
of goodwill. In connection with the adoption of SFAS No. 142, the Acacia
Technologies group performed a transitional goodwill impairment assessment and
determined that there was no impairment of goodwill. The fair value of the
Acacia Technologies group's one reporting unit was estimated using a discounted
cash flow analysis. There can be no assurance that a future goodwill impairment
test will not result in a charge to earnings.
The Acacia Media Technologies Group had $1,776,000 of goodwill at June 30,
2002 and December 31, 2001 (net of $2,258,000 of accumulated amortization) and
recorded approximately $45,000 and $89,000 of goodwill amortization expense
during the three and six months ended June 30, 2001, respectively.
The Acacia Technologies group's net loss, adjusted to exclude goodwill
amortization expense, for the three and six months ended June 30, 2002 and 2001
are as follows (in thousands, except earnings per share amounts):
THREE MONTHS ENDED SIX MONTHS ENDED
------------------- -------------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30,
2002 2001 2002 2001
-------- -------- -------- --------
Reported net income (loss) $(3,806) $3,097 $(6,645) $1,892
Add back: goodwill amortization -- 45 -- 89
------- ------ ------- ------
Adjusted net income (loss) $(3,806) $3,142 $(6,645) $1,981
======= ====== ======= ======
F-96
The Acacia Technologies group 's only identifiable intangible assets are
patents. The gross carrying amounts and accumulated amortization related to
acquired intangible assets as of June 30, 2002 and December 31, 2001 are as
follows (in thousands):
AT AT
JUNE 30, DECEMBER 31,
2002 2001
-------- ------------
Gross carrying amount - patents $10,798 $10,698
Accumulated amortization (6,072) (5,144)
------- -------
Patents, net $ 4,726 $ 5,554
======= =======
Aggregate patent amortization expense was $465,000 and $291,000 for the
three months ended June 30, 2002 and 2001, respectively. Aggregate patent
amortization expense was $930,000 and $582,000 for the six months ended June 30,
2002 and 2001, respectively.
The estimated aggregate amortization expense for the years ended December
31, 2002 through 2006 is as follows (in thousands):
ESTIMATED
AMORTIZATION
YEAR ENDED DECEMBER 31, EXPENSE
----------------------- ------------
2002 1,522
2003 500
2004 500
2005 500
2006 500
At June 30, 2002 and December 31, 2001, all of the Acacia
Technologies group's acquired intangible assets were subject to amortization.
On January 1, 2002, the Acacia Technologies group adopted SFAS No. 144,
"Accounting for the Impairment or Disposal of Long-Lived Assets" ("SFAS No.
144"), which addresses financial accounting and reporting for the impairment of
long-lived assets and for long-lived assets to be disposed of. SFAS No. 144
supersedes SFAS No. 121, "Accounting for the Impairment of Long-Lived Assets and
for Long-Lived Assets to Be Disposed Of." SFAS No. 144 also supersedes the
accounting and reporting provisions of APB Opinion No. 30, "Reporting the
Results of Operations - Reporting the Effects of Disposal of a Segment of a
Business, and Extraordinary, Unusual and Infrequently Occurring Events and
Transactions," for segments of a business to be disposed of. SFAS No. 144 also
amends Accounting Research Bulletin No. 51, "Consolidated Financial Statements,"
to eliminate the exception to consolidation for a temporarily controlled
subsidiary. SFAS No. 144 requires long-lived assets to be tested for
recoverability whenever events or changes in circumstances indicate that its
carrying amount may not be recoverable. In conjunction with such tests, it may
be necessary to review depreciation estimates and methods as required by APB
Opinion No. 20, "Accounting Changes," or the amortization period as required by
SFAS No. 142. The adoption of SFAS No. 144 did not have a material effect on the
Acacia Technologies group's consolidated results of operations or financial
position.
In April 2002, the FASB issued SFAS No. 145, "Rescission of FASB Statements
No. 4, 44 and 64, Amendment of FASB Statement No. 13, and Technical
Corrections," ("SFAS No. 145"), which is effective for transactions occurring
after May 15, 2002. SFAS No. 145 rescinds SFAS No. 4 and SFAS No. 64, which
addressed the accounting for gains and losses from extinguishment of debt. SFAS
No. 44 set forth industry-specific transitional guidance that did not apply to
us. SFAS No. 145 amends SFAS No. 13 to require that certain lease modifications
that have economic effects similar to sale-leaseback transactions be accounted
for in the same manner as sale-leaseback transactions. SFAS No. 145 also makes
technical corrections to certain existing pronouncements
F-97
that are not substantive in nature. The Acacia Technologies group does not
expect the adoption of SFAS No. 145 to have a significant impact on its
financial position or results of operations.
In June 2002, the FASB issued SFAS No. 146, "Accounting for Costs
Associated with Exit or Disposal Activities" ("SFAS No. 146"). SFAS No. 146
nullifies Emerging Issues Task Force ("EITF") Issue No. 94-3, "Liability
Recognition for Certain Employee Termination Benefits and Other Costs to Exit an
Activity," under which a liability for an exit cost was recognized at the date
of an entity's commitment to an exit plan. SFAS No. 146 requires that a
liability for a cost associated with an exit or disposal activity be recognized
at fair value when the liability is incurred. The provisions of this statement
are effective for exit or disposal activities that are initiated after December
31, 2002. The Acacia Technologies group does not expect the adoption of SFAS No.
146 to have a significant impact on its financial position or results of
operation.
SUBSEQUENT EVENTS
In August 2002, Soundview Technologies filed a federal patent infringement
lawsuit against seventeen television manufacturers in the United States District
Court for the District of Nevada. In this lawsuit, Soundview alleges that
television sets fitted with V-chips and sold in the United States infringe
Soundview Technologies' patent. As a result of the summary judgment ruling in
the case before the United States District Court for the District of
Connecticut, in October 2002, Soundview Technologies voluntarily filed to
dismiss, without prejudice, the Nevada infringement lawsuit. By voluntarily
dismissing this lawsuit at this time, Soundview Technologies will be able to
refile the action in the event that a favorable final decision is reached with
respect to the issue of infringement in the Connecticut lawsuit.
In our subsidiary Soundview Technologies' pending litigation against
certain television manufacturers, the Consumer Electronics Manufacturers
Association and the Consumer Electronics Association in which Soundview
Technologies has alleged that the defendants have infringed on Soundview
Technologies' V-chip patent and committed antitrust violations, in September
2002, the court granted a motion for summary judgment filed by the defendants.
In granting the motion, the court ruled that the defendants have not infringed
on Soundview Technologies' patent. While we are currently exploring strategies
in response to this ruling and intend to appeal it, litigation is inherently
uncertain and we can give no assurance that we will be successful in any such
appeal.
In September 2002, the Acacia Technologies group recorded an impairment
charge of $2.7 million for an other-than-temporary decline in the fair value of
our cost method investment.
F-98
COMBIMATRIX GROUP
(A DEVELOPMENT STAGE DIVISION OF ACACIA RESEARCH CORPORATION)
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and
Stockholders of Acacia Research Corporation
In our opinion, the accompanying balance sheets and the related statements
of operations, allocated net worth and cash flows present fairly, in all
material respects, the financial position of the CombiMatrix group (a
development stage division of Acacia Research Corporation as described in Note
1) at December 31, 2001 and December 31, 2000, and the results of its operations
and its cash flows for each of the three years in the period ended December 31,
2001 and the period from inception (October 4, 1995) to December 31, 2001, in
conformity with accounting principles generally accepted in the United States of
America. These financial statements are the responsibility of Acacia Research
Corporation's management; our responsibility is to express an opinion on these
financial statements based on our audits. We conducted our audits of these
statements in accordance with auditing standards generally accepted in the
United States of America, which require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements, assessing
the accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
As discussed in Note 2 to the financial statements, effective January 1,
2001, Acacia Research Corporation changed its balance sheet classification for
accrued subsidiary employee stock-based compensation charges, resulting in no
cumulative effect on income.
As discussed in Note 2 to the financial statements, effective October 1,
2000, Acacia Research Corporation adopted Emerging Issues Task Force Consensus
on Issue No. 00-27, "Application of Issue No. 98-5 to Certain Convertible
Instruments," resulting in a charge of $246,000 in the year ended December 31,
2000 for cumulative effect of change in accounting principle due to beneficial
conversion feature of debt.
As more fully described in Note 1 to the financial statements, CombiMatrix
group is a division of Acacia Research Corporation; accordingly, the financial
statements of the CombiMatrix group should be read in conjunction with the
consolidated financial statements of Acacia Research Corporation.
/s/ PricewaterhouseCoopers LLP
Los Angeles, California
May 2, 2002
F-99
COMBIMATRIX GROUP
A DEVELOPMENT STAGE DIVISION OF ACACIA RESEARCH CORPORATION
BALANCE SHEETS
(IN THOUSANDS)
AT DECEMBER 31, AT JUNE 30,
------------------- -----------
2001 2000 2002
-------- -------- -----------
(UNAUDITED)
ASSETS
CURRENT ASSETS:
Cash and cash equivalents .................................. $ 12,592 $ 6,558 $ 6,838
Short-term investments ..................................... 20,738 40,600 15,934
Prepaid expenses, other receivables and other assets ....... 813 1,148 1,595
-------- -------- --------
Total current assets ............................... 34,143 48,306 24,367
Property and equipment, net of accumulated depreciation and
amortization ............................................... 4,548 2,856 4,260
Patents, net of accumulated amortization ...................... 6,301 6,823 6,131
Goodwill, net of accumulated amortization ..................... 2,851 3,478 2,851
Other assets .................................................. 120 98 94
-------- -------- --------
$ 47,963 $ 61,561 $ 37,703
======== ======== ========
LIABILITIES AND ALLOCATED NET WORTH
Current liabilities:
Accounts payable, accrued expenses and other ............... $ 2,831 $ 2,879 $ 2,954
Current portion of deferred revenues ....................... 5,588 -- 7,342
Current portion of capital lease obligation ................ 934 -- 976
Accrued stock compensation ................................. -- 10,205 --
-------- -------- --------
Total current liabilities .......................... 9,353 13,084 11,272
-------- -------- --------
Payable to Acacia Technologies group .......................... 30 107 88
Deferred income taxes ......................................... 2,531 2,689 2,452
Deferred revenues, net of current portion ..................... 372 -- 266
Capital lease obligation, net of current portion .............. 1,845 -- 1,346
-------- -------- --------
Total liabilities .................................. 14,131 15,880 15,424
-------- -------- --------
Commitments and contingencies (Note 8)
Minority interests ......................................... 30,109 15,512 27,480
-------- -------- --------
Allocated net worth:
Funds allocated by Acacia Research Corporation ............. 51,473 49,891 52,031
Accumulated net losses ..................................... (47,750) (19,722) (57,232)
-------- -------- --------
Total allocated net worth .......................... 3,723 30,169 (5,201)
-------- -------- --------
$ 47,963 $ 61,561 $ 37,703
======== ======== ========
The accompanying notes are an integral part of these financial statements.
F-100
COMBIMATRIX GROUP
A DEVELOPMENT STAGE DIVISION OF ACACIA RESEARCH CORPORATION
STATEMENTS OF OPERATIONS
(IN THOUSANDS)
FOR THE
PERIOD FROM
INCEPTION
(OCTOBER 4,
FOR THE YEARS ENDED DECEMBER 31, 1995) TO
-------------------------------- JUNE 30,
2001 2000 1999 2002
-------- -------- ------- -----------
(UNAUDITED)
Revenues:
Grant and contract revenues ....................... $ 456 $ 17 $ 144 $ 1,029
Product revenues .................................. -- -- -- 274
-------- -------- ------- --------
Total revenues ................................. 456 17 144 1,303
-------- -------- ------- --------
Operating expenses:
Cost of sales ..................................... -- -- -- 253
Research and development expenses ................. 18,839 11,812 1,806 44,867
Marketing, general and administrative expenses .... 29,470 12,122 933 48,240
Amortization of patents and goodwill .............. 1,203 640 30 4,377
-------- -------- ------- --------
Total operating expenses ....................... 49,512 24,574 2,769 97,737
-------- -------- ------- --------
Operating loss ........................................ (49,056) (24,557) (2,625) (96,434)
-------- -------- ------- --------
Other income (expense):
Interest income ................................... 2,120 1,662 43 4,322
Interest expense .................................. (65) -- (264) (570)
Other income ...................................... -- -- (3) 15
-------- -------- ------- --------
Total other income (expense) ................... 2,055 1,662 (224) 3,767
-------- -------- ------- --------
Loss from operations before income taxes and minority
interests ......................................... (47,001) (22,895) (2,849) (92,667)
Benefit (provision) for income taxes .................. 155 79 (2) 313
-------- -------- ------- --------
Loss from operations before minority interests ........ (46,846) (22,816) (2,851) (92,354)
Minority interests .................................... 18,817 8,300 1,248 35,368
-------- -------- ------- --------
Loss from operations before cumulative effect of
change in accounting principle .................... (28,029) (14,516) (1,603) (56,986)
-------- -------- ------- --------
Cumulative effect of change in accounting principle
due to beneficial conversion feature of debt ...... -- (246) -- (246)
-------- -------- ------- --------
Division net loss ..................................... $(28,029) $(14,762) $(1,603) $(57,232)
======== ======== ======= ========
The accompanying notes are an integral part of these financial statements.
F-101
COMBIMATRIX GROUP
A DEVELOPMENT STAGE DIVISION OF ACACIA RESEARCH CORPORATION
STATEMENTS OF OPERATIONS
(IN THOUSANDS)
FOR THE THREE MONTHS ENDED FOR THE SIX MONTHS ENDED
----------------------------- -----------------------------
JUNE 30, 2002 JUNE 30, 2001 JUNE 30, 2002 JUNE 30, 2001
------------- ------------- ------------- -------------
(UNAUDITED) (UNAUDITED)
Revenues:
Grant and contract revenues ......................... $ 164 $ 91 $ 413 $ 274
Product revenue ..................................... 274 -- 274 --
-------- -------- -------- --------
Total revenues ................................... 438 $ 91 $ 687 $ 274
-------- -------- -------- --------
Operating expenses:
Cost of sales ....................................... 253 -- 253 --
Research and development expenses ................... 5,026 2,651 7,694 5,802
Non-cash stock compensation expense - R&D ........... 692 2,013 1,113 4,411
Marketing, general and administrative expenses ...... 2,927 3,747 5,211 7,446
Non-cash stock compensation expense - MG&A .......... 1,443 5,166 2,434 10,364
Amortization of patents and goodwill ................ 99 301 198 599
-------- -------- -------- --------
Total operating expenses ......................... 10,440 13,878 16,903 28,622
-------- -------- -------- --------
Operating loss ......................................... (10,002) (13,787) (16,216) (28,348)
-------- -------- -------- --------
Other income (expense):
Interest income ..................................... 146 558 399 1,291
Interest expense .................................... (57) -- (121) --
-------- -------- -------- --------
Total other income ............................... 89 558 278 1,291
-------- -------- -------- --------
Loss from operations before income taxes and minority
interests ........................................... (9,913) (13,229) (15,938) (27,057)
Benefit for income taxes ............................... 39 39 79 75
-------- -------- -------- --------
Loss from operations before minority interests ......... (9,874) (13,190) (15,859) (26,982)
Minority interests ..................................... 3,979 5,321 6,377 10,839
-------- -------- -------- --------
Division net loss ...................................... $ (5,895) $ (7,869) $ (9,482) $(16,143)
======== ======== ======== ========
The accompanying notes are an integral part of these financial statements.
F-102
COMBIMATRIX GROUP
A DEVELOPMENT STAGE DIVISION OF ACACIA RESEARCH CORPORATION
STATEMENTS OF ALLOCATED NET WORTH
(IN THOUSANDS)
Balances at inception (October 4, 1995) ....................... $ --
Net assets attributed to the CombiMatrix group ................ 2,678
Division net loss ............................................. (3,582)
--------
Balance at December 31, 1998 .................................. (904)
--------
Net assets attributed to the CombiMatrix group ................ 3,277
Division net loss ............................................. (1,603)
--------
Balance at December 31, 1999 .................................. 770
--------
Net assets attributed to the CombiMatrix group ................ 44,161
Division net loss ............................................. (14,762)
--------
Balance at December 31, 2000 .................................. 30,169
--------
Net assets attributed to the CombiMatrix group ................ 1,583
Division net loss ............................................. (28,029)
--------
Balance at December 31, 2001 .................................. 3,723
--------
Net assets attributed to the CombiMatrix group ................ 558
Division net loss ............................................. (9,482)
--------
Balance at June 30, 2002 (unaudited) .......................... $ (5,201)
========
The accompanying notes are an integral part of these financial statements.
F-103
COMBIMATRIX GROUP
A DEVELOPMENT STAGE DIVISION OF ACACIA RESEARCH CORPORATION
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
FOR THE PERIOD
FROM INCEPTION
(OCTOBER 4, FOR THE SIX MONTHS ENDED
FOR THE YEARS ENDED DECEMBER 31, 1995) TO JUNE 30,
-------------------------------- JUNE 30, ------------------------
2001 2000 1999 2002 2002 2001
-------- -------- -------- -------------- -------- --------
(UNAUDITED) (UNAUDITED)
Cash flows from operating activities:
Division net loss from continuing operations: $(28,029) $(14,516) $(1,603) $(55,765) $ (9,482) $(16,143)
Adjustments to reconcile division net loss from
continuing operations to net cash used in
operating activities:
Cumulative effect of accounting change -- -- -- 246 -- --
Depreciation and amortization 2,159 906 83 4,105 866 952
Stock-based compensation 19,963 9,995 36 33,751 3,547 14,775
Charge for acquired in-process research and
development -- 2,508 -- 2,508 -- --
Minority interests (18,817) (8,300) (1,248) (35,368) (6,377) (10,839)
Deferred tax benefit (155) (79) -- (313) (79) (79)
Write-off of other assets 918 -- -- -- -- --
Other 314 (105) 149 79 26 52
Changes in assets and liabilities:
Prepaid expenses, other receivables and other
assets (258) (989) (11) (2,079) (697) (644)
Accounts payable, accrued expenses and other 775 1,891 (77) 3,025 180 169
Deferred revenues 5,960 -- -- 7,608 1,648 --
-------- -------- ------- -------- -------- --------
Net cash used in operating activities of continuing
operations (17,170) (8,689) (2,671) (42,203) (10,368) (11,757)
-------- -------- ------- -------- -------- --------
Cash flows from investing activities:
Purchase of property and equipment (3,756) (2,004) (88) (6,473) (367) (2,537)
Proceeds from sale and leaseback arrangement 3,000 -- -- 4,450 -- --
Purchase of short-term investments (30,765) (44,606) -- (80,529) (5,158) --
Sale of short-term investments 50,354 3,975 -- 64,206 9,877 11,923
-------- -------- ------- -------- -------- --------
Net cash provided by (used) in investing
activities 18,833 (42,635) (88) (18,346) 4,352 9,386
-------- -------- ------- -------- -------- --------
Cash flows from financing activities:
Net cash attributed to the CombiMatrix group 4,496 56,423 1,146 67,421 171 3,263
-------- -------- ------- -------- -------- --------
Increase (decrease) in cash and cash equivalents 6,159 5,099 (1,613) 6,872 (5,845) 892
Cash and cash equivalents, beginning 6,558 1,459 3,072 -- 12,592 6,558
Effect of exchange rate on cash (125) -- -- (34) 91 --
-------- -------- ------- -------- -------- --------
Cash and cash equivalents, ending $ 12,592 $ 6,558 $ 1,459 $ 6,838 $ 6,838 $ 7,450
======== ======== ======= ======== ======== ========
The accompanying notes are an integral part of these financial statements
F-104
COMBIMATRIX GROUP
A DEVELOPMENT STAGE DIVISION OF ACACIA RESEARCH CORPORATION
NOTES TO FINANCIAL STATEMENTS
1. DESCRIPTION OF BUSINESS
Acacia Research Corporation is comprised of two separate divisions: the
CombiMatrix group and the Acacia Technologies group ("groups").
The CombiMatrix group, a development stage division of Acacia Research
Corporation, is intended to reflect the performance of Acacia Research
Corporation's majority-owned subsidiaries, CombiMatrix Corporation and Advanced
Material Sciences, Inc. ("Advanced Material Sciences"), and also the assets,
liabilities and related transactions of Acacia Research Corporation attributed
to the CombiMatrix group. The CombiMatrix group's core technology opportunity in
the life sciences sector has been primarily developed through Acacia Research
Corporation's majority-owned subsidiary, CombiMatrix Corporation. CombiMatrix
Corporation is a life science technology company with a proprietary system for
rapid, cost competitive creation of DNA and other compounds on a programmable
semiconductor chip (referred to as active biochips or microarrays). This
proprietary technology has significant applications relating to genomic and
proteomic research. Acacia Research Corporation's majority-owned subsidiary,
Advanced Material Sciences, holds the exclusive license for CombiMatrix
Corporation's biological array processor technology in certain fields of
material sciences.
COMBIMATRIX CORPORATION
Since inception, CombiMatrix Corporation has been in the development stage
and the activities have principally consisted of obtaining financing, recruiting
personnel and conducting research and development. CombiMatrix Corporation has
several ongoing long-term development projects that involve experimental
technology and may require several years and substantial expenditures to
complete. No revenues have been recognized to date from the CombiMatrix
Corporation's planned principal operations. Management believes that existing
cash and cash equivalents and short-term investments are adequate to fund
operations through December 31, 2002. However, the ability to meet business
objectives is dependent upon CombiMatrix Corporation's ability to raise
additional financing, substantiate its technology and ultimately to fund its
operations from revenues.
In May 2001, CombiMatrix Corporation formed CombiMatrix International
Holdings Corporation ("Holdings"), a Delaware corporation and a wholly-owned
subsidiary of CombiMatrix Corporation. Additionally, CombiMatrix Corporation
formed CombiMatrix K.K. ("CombiMatrix KK"), a Japanese corporation, which was a
wholly-owned subsidiary of Holdings at formation. In October 2001, the
CombiMatrix KK sold 10% of its voting common stock to Marubeni Japan, a leading
trading company in Japan. Marubeni Japan made a $1.0 million investment to
acquire a 10% minority interest in the joint venture. CombiMatrix KK, which is
based in Tokyo, Japan, will focus on development and licensing opportunities for
the CombiMatrix Corporation's microarray technology with pharmaceutical and
biotechnology companies in the Asian market.
In the first quarter of 2000, CombiMatrix Corporation completed a private
equity financing raising gross proceeds of $17.5 million through the sale of
3,500,000 shares of CombiMatrix Corporation common stock. Acacia Research
Corporation invested $10.0 million in this private placement to acquire
2,000,000 shares of CombiMatrix Corporation common stock. The transaction was
accounted for as a step acquisition using the purchase method of accounting. The
total purchase price was allocated to the fair value of assets acquired and
liabilities assumed. As a result of the transaction, Acacia Research Corporation
increased its consolidated ownership interest in CombiMatrix Corporation from
50.01% to 51.8%.
In the third quarter of 2000, Acacia Research Corporation increased its
consolidated ownership interest in CombiMatrix Corporation from 51.8% to 61.4%
by acquiring from existing stockholders of CombiMatrix Corporation 1,163,850
shares of CombiMatrix Corporation common stock in exchange for 488,557 shares of
Acacia Research's common stock. The transaction was accounted for as a step
acquisition using the purchase method of accounting. The fair value of the
Acacia Research Corporation shares issued in the transaction was based on the
quoted market price of Acacia Research Corporation's stock averaged over a
five-day period (including two days
F-105
before and after the June 28, 2000 announcement date). The total purchase price
of $11.6 million was allocated to the fair value of assets acquired and
liabilities assumed, including acquired in-process research and development. The
amount attributable to goodwill was $2.9 million, which is amortized using the
straight-line method over the estimated remaining useful life of five years. The
amount attributable to in-process research and development of $2.5 million was
charged to expense and is included in the CombiMatrix group's statement of
operations for the year ended December 31, 2000.
In the third quarter of 2000, CombiMatrix Corporation completed a private
equity financing raising gross proceeds of $36.0 million through the sale of
4,000,000 shares of CombiMatrix Corporation common stock. Acacia Research
Corporation invested $17.5 million in this private placement to acquire
1,944,445 shares. The transaction was accounted for as a step acquisition using
the purchase method of accounting. As a result of the transaction, Acacia
Research Corporation's consolidated interest in CombiMatrix Corporation
decreased from 61.4% to 58.4%, and we recognized a gain which is reflected in
Acacia Research Corporation's statement of stockholders' equity as a direct
increase to capital in excess of par.
ADVANCED MATERIAL SCIENCES
Advanced Material Sciences was formed in November 2000 and holds an
exclusive license to CombiMatrix Corporation's biological processor technology
within the field of material science. Initial investments for Advanced Material
Sciences consisted of $2.0 million from Acacia Research Corporation and $1.0
million from CombiMatrix Corporation. Acacia Research Corporation's effective
interest of approximately 75% in Advance Material Sciences has been attributed
to the CombiMatrix group.
In May 2001, Advanced Material Sciences completed a private equity
financing raising gross proceeds of $2.0 million through the issuance of
2,000,000 shares of common stock. Acacia Research Corporation invested $155,000
in this private placement to acquire 155,000 shares. As a result of the
transaction, Acacia Research Corporation's equity ownership in Advanced Material
Sciences decreased from 66.7% to 58.1%. Acacia Research Corporation accounted
for its purchase of 155,000 shares of Advanced Material Sciences as a step
acquisition using the purchase method of accounting. The total purchase price
was allocated to the fair value of assets acquired and liabilities assumed. As a
result of the decrease in ownership interest due to the disproportionate
purchase of additional shares in Advanced Material Sciences, a gain was
reflected in Acacia Research Corporation's statement of stockholders' equity as
a direct increase to capital in excess of par. Advanced Material Sciences issued
an additional 29,750 shares of common stock, in lieu of cash payments, and
warrants to purchase approximately 54,000 shares of common stock, for finders'
fees in connection with the private placement. Each common stock purchase
warrant entitles the holder to purchase shares of Advanced Material Sciences
common stock at a price of $1.10 per share. The value of such warrants is not
material.
THE PROPOSED TRANSACTIONS
On March 20, 2002, Acacia Research's board of directors (the "Board")
approved a plan that would create two new classes of common stock called Acacia
Research Corporation-CombiMatrix common stock ("AR-CombiMatrix stock") and
Acacia Research Corporation-Acacia Technologies common stock ("AR-Acacia
Technologies stock") (the "Recapitalization Proposal"). AR-CombiMatrix stock is
intended to reflect separately the performance of the CombiMatrix group.
AR-Acacia Technologies stock is intended to reflect separately the performance
of Acacia Research Corporation's media technology business. Each share of
existing Acacia Research Corporation common stock will be converted into
approximately 0.5582 of a share of AR-CombiMatrix stock and one share of
AR-Acacia Technologies stock. Acacia Research Corporation intends to list the
AR-CombiMatrix stock and the AR-Acacia Technologies stock on the NASDAQ National
Market under the symbols "CBMX" and "ACTG," respectively.
The Board also approved an agreement whereby Acacia Research Corporation
would acquire the minority stockholder interest in CombiMatrix Corporation. The
acquisition would be accomplished through a merger in which the minority
stockholders of CombiMatrix Corporation would receive one share of the to be
formed AR-CombiMatrix stock in exchange for one share of their existing
CombiMatrix Corporation common stock. The acquisition is subject to approval by
the stockholders of Acacia Research Corporation.
F-106
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION. AR-CombiMatrix stock is intended to reflect the
separate performance of the respective division of Acacia Research Corporation.
The CombiMatrix group is not a separate legal entity. Holders of AR-CombiMatrix
stock will be stockholders of Acacia Research Corporation. As a result, holders
of AR-CombiMatrix stock will continue to be subject to all of the risks of an
investment in Acacia Research Corporation and all of its businesses, assets and
liabilities. The assets Acacia Research Corporation attributes to the
CombiMatrix group could be subject to the liabilities of the Acacia Technologies
group.
The CombiMatrix group financial statements have been prepared in accordance
with generally accepted accounting principles in the United States of America,
and taken together with the Acacia Technologies group financial statements,
comprise all the accounts included in the corresponding consolidated financial
statements of Acacia Research Corporation. The financial statements of
CombiMatrix group reflect the financial condition, results of operations, and
cash flows of the businesses included therein. The financial statements of the
CombiMatrix group include the accounts or assets of Acacia Research Corporation
specifically attributed to the CombiMatrix group and where prepared using
amounts included in Acacia Research Corporation's consolidated financial
statements.
Minority interests represent participation of other stockholders in the
allocated net assets and in the division earnings and losses of the CombiMatrix
group and are reflected in the caption "Minority interests" in CombiMatrix
group's financial statements. Minority interests adjust CombiMatrix group's net
results of operations to reflect only CombiMatrix group's share of the division
earnings or losses of non-wholly-owned investees.
Financial effects arising from one group that affect Acacia Research
Corporation's results of operations or financial condition could, if
significant, affect the results of operations or financial condition of the
other group and the market price of the class of common stock relating to the
other group. Any division net losses of the CombiMatrix group or the Acacia
Technologies group and dividends or distributions on, or repurchases of,
AR-CombiMatrix stock or AR-Acacia Technologies stock or repurchases of preferred
stock of Acacia Research Corporation will reduce the assets of Acacia Research
Corporation legally available for payment of dividends on AR-CombiMatrix stock
or AR-Acacia Technologies stock.
MANAGEMENT ALLOCATION POLICIES. The management and allocation policies
applicable to the preparation of the financial statements of the CombiMatrix
group and the Acacia Technologies group may be modified or rescinded, or
additional policies may be adopted, at the sole discretion of the Board at any
time without approval of the stockholders. The CombiMatrix group's financial
statements reflect the application of the management and allocation policies
adopted by the Board to various corporate activities, as described below.
Management has no plans to change allocation methods or the composition of the
groups. The CombiMatrix group financial statements should be read in conjunction
with the Acacia Research Corporation consolidated financial statements and
related notes.
TREASURY AND CASH MANAGEMENT POLICIES. Cash and short-term investments
were attributed to the groups based on the respective cash and short term
investments balances of the entities comprising each group. Corporate cash
balances have been attributed to the Acacia Technologies group. All cash raised
by CombiMatrix Corporation and Advanced Material Sciences has been attributed to
the CombiMatrix group. Acacia Research Corporation does not currently have any
short term or long term debt. Should debt arise in future periods, Acacia
Research Corporation will attribute each future incurrence or issuance of
external debt or preferred stock (and the proceeds thereof) between the groups
or entirely to one group as described below. Acacia Research Corporation will
manage most treasury activities on a de-centralized basis, with each separate
group separately managing its own treasury activities. Pursuant to treasury and
cash management policies adopted by the Board, after the date on which
AR-CombiMatrix stock and AR-Acacia Technologies stock is first issued, the
following will apply:
o Acacia Research Corporation will attribute each future issuance of
AR-Acacia Technologies stock (and the proceeds thereof) to the Acacia
Technologies group and will attribute each future issuance of
AR-CombiMatrix stock (and the proceeds thereof) to the CombiMatrix
group;
F-107
o Acacia Research Corporation will attribute each future incurrence or
issuance of external debt or preferred stock (and the proceeds
thereof) between the groups or entirely to one group as determined by
the Board, based on the extent to which Acacia Research Corporation
incurs or issues the debt or preferred stock for the benefit of the
CombiMatrix group or the Acacia Technologies group;
o Dividends on AR-Acacia Technologies stock will be charged against the
AR-Acacia Technologies group, and dividends on AR-CombiMatrix stock
will be charged against the CombiMatrix group;
o Repurchases of AR-Acacia Technologies stock will be charged against
the Acacia Technologies group and Repurchases of AR-CombiMatrix stock
will be charged against the CombiMatrix group;
o As of immediately prior to the first issuance of AR-CombiMatrix stock
and AR-Acacia Technologies stock, the CombiMatrix group and the Acacia
Technologies group shall be deemed to be allocated the cash and cash
equivalents held by the respective groups as of that date;
o Acacia Research Corporation will account for any cash transfers from
Acacia Research Corporation to or for the account of a group, from a
group to or for the account of Acacia Research Corporation, or from
one group to or for the account of the other group (other than
transfers in return for assets or services rendered) as short-term
loans unless (A) the Board determines that a given transfer (or type
of transfer) should be accounted for as a long-term loan, (B) the
Board determines that a given transfer (or type of transfer) should be
accounted for as a capital contribution or (iii) the Board determines
that a given transfer (or type of transfer) should be accounted for as
a return of capital. There are no specific criteria to determine when
Acacia Research Corporation will account for a cash transfer as a
long-term loan, a capital contribution or a return of capital rather
than an inter-group revolving credit advance; provided, however, that
cash advances from Acacia Research Corporation to the Acacia
Technologies group or to the CombiMatrix group up to $25 million on a
cumulative basis shall be accounted for as short-term or long-term
loans at interest rates at which Acacia Research Corporation could
borrow such funds and shall not be accounted for as a capital
contribution. The Board will make such a determination in the exercise
of its business judgment at the time of such transfer based upon all
relevant circumstances. Factors the Board may consider include,
without limitation, the current and projected capital structure of
each group; the financing needs and objectives of the recipient group;
the availability, cost and time associated with alternative financing
sources; and prevailing interest rates and general economic
conditions; and
o Any cash transfers accounted for as short-term loans will bear
interest at the rate at which Acacia Research Corporation could borrow
such funds. In addition, any cash transfers accounted for as a
long-term loan will have interest rates, amortization, maturity,
redemption and other terms that reflect the then-prevailing terms on
which Acacia Research Corporation could borrow such funds.
ASSETS AND LIABILITIES. Acacia Research Corporation's assets and
liabilities have been attributed to the Acacia Technologies group and the
CombiMatrix group based on the respective asset and liabilities of the
businesses comprising each group. Intangible assets recorded at the Acacia
Research Corporation level, primarily consisting of acquired patents and
goodwill balances, have been attributed to the respective businesses to which
the intangibles and goodwill relate.
CORPORATE GENERAL AND ADMINISTRATIVE SERVICES AND FACILITIES. Acacia
Research Corporation allocates the cost of corporate general and administrative
services and facilities between the groups generally based upon utilization.
Where determinations based on utilization alone are impracticable, Acacia
Research Corporation will use other methods and criteria that management
believes to be equitable and to provide a reasonable estimate of the cost
attributable to each group. Except as otherwise determined by management, the
allocated costs of providing such services and facilities include, without
limitation, all costs and expenses of personnel employed in connection with such
services and facilities, including, without limitation, all direct costs of such
personnel, such as payroll, payroll taxes and fringe benefit costs (calculated
at the appropriate annual composite rate therefor) and all overhead costs and
expenses directly related to such personnel and the services or facilities
provided by them. In addition, allocated costs include all materials used in
connection with such services or facilities, billed at their net cost to the
provider of the services or facilities plus all overhead costs and expenses
related to such materials.
F-108
Except as may otherwise be specifically provided pursuant to the terms of
any agreements among Acacia Research Corporation and the groups or any
resolutions of the Board, the corporate general and administrative services and
facilities to be allocated between the groups include, without limitation, legal
services, accounting services (tax and financial), insurance and deductibles
payable in connection therewith, employee benefit plans and administration
thereof, investor relations, stockholder services, and services relating to the
board of directors.
Direct salaries, payroll taxes and fringe benefits are allocated to the
groups based on the percentage of actual time incurred by specific employees to
total annual time available and direct costs including postage, insurance, legal
fees, accounting and tax are attributed to the groups based on specific
identification of costs incurred on behalf of each group. Other direct costs,
including direct depreciation expense, computer costs, general office supplies
and rent are attributed to the groups based on the ratio of direct salaries to
total salaries. Indirect costs, including indirect salaries and benefits,
investor relations, rent, general office supplies and indirect depreciation are
allocated to the groups based on the ratio of direct salaries for each group to
total direct salaries. Included in marketing, general and administrative
expenses of the CombiMatrix group are allocated corporate charges of $1.4
million, $0.9 million and $0.4 million relating to the periods ending December
31, 2001, 2000 and 1999, respectively.
Management believes that the methods and criteria used to allocate costs
are equitable and provide a reasonable approximation of the cost attributable to
the groups. Based on the allocation methods used, Acacia Research Corporation
believes that the allocation of expenses as presented in the accompanying
financial statements for the groups reflects a reasonable estimation of expenses
that would be recognized if the groups were separate stand alone registrants.
ALLOCATION OF FEDERAL AND STATE INCOME TAXES. Acacia Research Corporation
determines its federal income taxes and the federal income taxes of its
subsidiaries that own assets allocated between the groups on a consolidated
basis. Acacia Research Corporation allocates consolidated federal income tax
provisions and related tax payments or refunds between the Acacia Technologies'
group and CombiMatrix group based principally on the taxable income and tax
credits directly attributable to each group. Such allocations reflect each
group's contribution, whether positive or negative, to Acacia Research
Corporation's consolidated federal taxable income and consolidated federal tax
liability and tax credit position. Acacia Research Corporation will credit tax
benefits that cannot be used by the group generating those benefits but can be
used on a consolidated basis to the group that generated such benefits.
Inter-group transactions will be treated as taxed as if each group was a
stand-alone company.
Depending on the tax laws of the respective jurisdictions, state and local
income taxes are calculated on either a consolidated or combined basis between
the groups based on their respective contribution to such consolidated or
combined state taxable incomes. State and local income tax provisions and
related tax payments or refunds which are determined on a separate corporation
basis will be allocated between the groups in a manner designed to reflect the
respective contributions of the groups to Acacia Research Corporation's separate
or local taxable income.
REVENUE RECOGNITION. The CombiMatrix group recognizes revenue in accordance
with Staff Accounting Bulletin No. 101, "Revenue Recognition in Financial
Statements" ("SAB No. 101"). Revenue from government grant and contract
activities are recognized as the related services are performed and when the
services have been approved by the grantor and collectibility is reasonably
assured. Amounts recognized are limited to amounts due from customers based on
contract or grant terms.
Revenue from the sale of products and services is recognized when (i)
persuasive evidence of an arrangement exists, (ii) delivery has occurred or
services have been rendered, (iii) the fees are fixed and determinable and (iv)
collectibility is reasonably assured.
Revenues from multiple-element arrangements involving license fees,
up-front payments and milestone payments, which are received or billable by the
CombiMatrix group in connection with other rights and services that represent
continuing obligations, are deferred until all of the elements have been
delivered or until the CombiMatrix group has established objective and
verifiable evidence of the fair value of the undelivered elements.
F-109
Deferred revenue arises from payments received in advance of the
culmination of the earnings process. Deferred revenue expected to be recognized
within the next twelve months is classified as a current liability. At December
31, 2001, the CombiMatrix group recorded $6.0 million as deferred revenues
related to payments received under multiple-element arrangements and other
advances, which will be recognized as revenue in future periods when the
applicable revenue recognition criteria as describe above are met.
CASH AND CASH EQUIVALENTS. The CombiMatrix group considers all highly
liquid, short-term investments with original maturities of three months or less
when purchased to be cash equivalents.
SHORT-TERM INVESTMENTS. Short-term investments are diversified among
high-credit quality securities in accordance with the Acacia Research's
investment policy. Investments in securities with maturities of greater than
three months and less than one year are classified as short-term investments.
Investments are classified into categories in accordance with the provisions of
Statement of Financial Accounting Standards ("SFAS") No. 115, "Accounting for
Certain Investments in Debt and Equity Securities" ("SFAS No. 115"). Investments
are classified as available-for-sale, which are reported at fair value with
related unrealized gains and losses in the value of such securities recorded as
a separate component of comprehensive income (loss) in the CombiMatrix group
allocated net worth until realized.
The fair value of our investments is determined by quoted market prices.
Realized and unrealized gains and losses are recorded based on the specific
identification method. For investments classified as available-for-sale,
unrealized losses that are other than temporary are recognized in division net
income (loss).
The cost of debt securities is adjusted for amortization of premiums and
accretion of discounts to maturity. Such amortization is included in interest
income (expense). Interest and dividends on all securities are included in
interest income.
CONCENTRATION OF CREDIT RISKS. Cash and cash equivalents are invested in
deposits with certain financial institutions and may, at times, exceed federally
insured limits. The CombiMatrix group has not experienced any losses on its
deposits of cash and cash equivalents.
INVENTORY. Inventory, which consists primarily of raw materials to be used
in the production of our microarray products, is stated at the lower of cost or
market using the first-in, first-out method.
PROPERTY AND EQUIPMENT. Property and equipment is recorded at cost.
Depreciation is provided over the estimated useful lives of the depreciable
assets, ranging from two to ten years, using the straight-line method. Leasehold
improvements are amortized over the shorter of the applicable lease or useful
life of the asset. Certain leasehold improvements, furniture and equipment held
under capital leases are classified as property and equipment and are amortized
over their useful lives using the straight-line method. Lease amortization is
included in depreciation expense. Additions and improvements that increase the
value or extend the life of an asset are capitalized. Maintenance and repairs
are expensed as incurred. Disposals are removed at cost less accumulated
depreciation or amortization and any gain or loss from disposition is reflected
in the statement of operations in the year of disposition.
PREPAID PUBLIC OFFERING COSTS. During 2000, CombiMatrix Corporation
capitalized $1,353,000 of costs incurred in connection with the filing of a
registration statement with the Securities and Exchange Commission in November
2000. At December 31, 2000, $918,000 of these deferred costs are included in
current assets in CombiMatrix group's balance sheet. In 2001, all of these
deferred costs were charged to operations and are included as a component of
marketing, general and administrative expense.
ORGANIZATION COSTS. Costs of start-up activities, including organization
costs, are expensed as incurred.
PATENTS AND GOODWILL. Patents, once issued, and goodwill are amortized on
the straight-line method over their estimated remaining useful lives, ranging
from three to twenty years. Amortization charged to operations relating to
goodwill amounted to $862,000, $470,000 and $31,000 at December 31, 2001, 2000
and 1999, respectively and $1,394,000 for the period from inception (October 4,
1995) to December 31, 2001. Accumulated
F-110
amortization of goodwill amounted to $1,312,000 and $504,000 at December 31,
2001 and 2000, respectively. Amortization charged to operations relating to
patents amounted to $341,000, $170,000 and $0 at December 31, 2001, 2000 and
1999, respectively. Accumulated amortization of patents amounted to $511,000 and
$170,000 at December 31, 2001 and 2000, respectively.
IMPAIRMENT OF LONG-LIVED ASSETS. Long-lived assets and intangible assets
are reviewed for potential impairment when events or changes in circumstances
indicate the carrying amount of an asset may not be recoverable. In the event
the sum of the expected undiscounted future cash flows resulting from the use of
the asset is less than the carrying amount of the asset, an impairment loss
equal to the excess of the asset's carrying value over its fair value is
recorded. If an asset is determined to be impaired, the loss is measured based
on quoted market prices in active markets, if available. If quoted market prices
are not available, the estimate of fair value is based on various valuation
techniques, including a discounted value of estimated future cash flows.
FAIR VALUE OF FINANCIAL INSTRUMENTS. The carrying value of cash and cash
equivalents, other receivables, accounts payable, deferred revenues and accrued
expenses approximate fair value due to their short-term maturity. The carrying
value of the capital lease obligation approximates its fair value based on the
current interest rate for similar type of instruments. The fair values of
investments are primarily determined by quoted market prices.
FOREIGN CURRENCY TRANSLATION. The functional currency of CombiMatrix KK
foreign entity is the local currency. Foreign currency translation is reported
pursuant to SFAS No. 52, "Foreign Currency Translation" ("SFAS No. 52"). Assets
and liabilities recorded in foreign currencies are translated at the exchange
rate on the balance sheet date. Translation adjustments resulting from this
process are charged or credited to other comprehensive income. Revenue and
expenses are translated at average rates of exchange prevailing during the year.
Foreign currency transactions gains and losses were insignificant for the years
ended December 31, 2001, 2000 and 1999.
STOCK-BASED COMPENSATION. Compensation cost of stock options issued to
employees is accounted for in accordance with Accounting Principles Board
("APB") Opinion No. 25, "Accounting for Stock Issued to Employees" ("APB No.
25") and related interpretations. Compensation cost attributable to such options
is recognized based on the difference, if any, between the closing market price
of the stock on the date of grant and the exercise price of the option.
Compensation cost is deferred and amortized on an accelerated basis over the
vesting period of the individual option awards using the amortization method
prescribed in Financial Accounting Standards Board ("FASB") Interpretation No.
28, "Accounting for Stock Appreciation Rights and Other Variable Stock Option or
Award Plans" ("FIN No. 28"). The CombiMatrix group has adopted the disclosure
only requirements of Statement of Financial Accounting Standards ("SFAS") No.
123, "Accounting for Stock-Based Compensation" ("SFAS No. 123") with respect to
options issued to employees. Compensation cost of stock options and warrants
issued to non-employee service providers is accounted for under the fair value
method required by SFAS No. 123 and related interpretations.
RESEARCH AND DEVELOPMENT EXPENSES. Research and development expenses
consist of costs incurred for direct and overhead-related research expenses and
are expensed as incurred. Costs to acquire technologies which are utilized in
research and development and which have no alternative future use are expensed
when incurred. Costs related to filing and pursuing patent applications are
expensed as incurred, as recoverability of such expenditures is uncertain.
Software developed for use in our products is expensed as incurred until both
(i) technological feasibility for the software has been established and (ii) all
research and development activities for the other components of the system have
been completed. Management believes these criteria are met after the CombiMatrix
group has received evaluations from third-party test sites and completed any
resulting modifications to the products. Expenditures to date have been
classified as research and development expense.
ACQUIRED IN-PROCESS RESEARCH AND DEVELOPMENT. The CombiMatrix group
incurred research and development expenses of $18.8 million, $11.8 million and
$1.8 million in 2001, 2000, and 1999, respectively, including amounts assigned
to acquired in-process technology of $2.5 million in 2000. The value assigned to
acquired in-process technology was determined by identifying those acquired
specific in-process research and development projects that would be continued
and for which (a) technological feasibility had not been established at the
acquisition date, (b) there was no alternative future use and (c) the fair value
was estimable with reasonable reliability.
F-111
SEGMENTS. The CombiMatrix group follows SFAS No. 131, "Disclosure about
Segments of an Enterprise and Related Information," which establishes annual and
interim reporting standards for an enterprise's operating segments and related
disclosures about its products, services, geographic areas and major customers.
Management has determined that the CombiMatrix group operates in one segment.
The segment disclosure included in Note 13 to Acacia Research Corporation's
consolidated financial statements reflects the information that our chief
operating decision maker regularly reviews to assess performance and make
decisions about resource allocation. This information is presented in accordance
with SFAS No. 131, "Disclosures About Segments of an Enterprise and Related
Information." ("SFAS No. 131"). We believe that investors in our new classes of
common stock will be better served by also having more detailed financial
information about our segments or groups in the form of full group financial
statements. However, in order to appropriately report this expanded financial
information in accordance with generally accepted accounting principles,
differences exist, including the effect of "push down accounting" for certain
intangibles and further allocation of certain corporate charges to the different
groups.
If the recapitalization and merger are approved, Acacia Research
Corporation management intends to reformat its segment reporting, in accordance
with the applicable provisions of SFAS No. 131, to reflect the attribution of
assets and liabilities and the allocation of expenditures consistent with the
proposed management and allocation policies, as this information is the
information that will be used by Acacia Research Corporation's chief operating
decision maker to allocate resources and make decisions relating to each
division and to Acacia Research as a whole.
USE OF ESTIMATES. The preparation of financial statements in conformity
with generally accepted accounting principles in the United States of America
requires management to make estimates and assumptions that affect the reported
amount of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the combined financial statements and the reported
amounts of revenues and expenses during the reporting period. Actual results
could differ from these estimates.
LOSS PER SHARE. Historical per share information is omitted from the
CombiMatrix group statements of operations because AR-CombiMatrix stock was not
part of the capital structure of Acacia Research Corporation for the periods
presented. Following implementation of the Recapitalization Proposal, earnings
per share for AR-CombiMatrix stock and AR-Acacia Technologies stock will be
computed using the two-class method in accordance with SFAS No 128, "Earnings
per Share", in the Acacia Research Corporation consolidated financial
statements.
ACCOUNTING CHANGES. Effective January 1, 2001, Acacia Research Corporation
changed the accounting policy for balance sheet classification of employee
stock-based compensation resulting from awards in consolidated subsidiaries.
Historically, Acacia Research Corporation's consolidated financial statements
have accounted for cumulative earned employee stock-based compensation related
to subsidiaries as a liability, under the caption "Accrued stock compensation."
Acacia Research Corporation's management believes a change to reflect these
cumulative changes as minority interests is preferable as it better reflects the
underlying economics of the stock-based compensation transaction. As a result of
the change, effective January 1, 2001, minority interests has been increased by
$10.2 million, and accrued stock compensation of $10.2 million has been
decreased. The change in accounting policy does not affect division of net
income.
During March 1998, CombiMatrix Corporation issued $1,450,000 principal
amount of 6% unsecured subordinated convertible promissory notes due in 2001.
The notes had a contingent beneficial conversion feature with intrinsic value of
$246,000. The CombiMatrix group adopted Emerging Issues Task Force Consensus of
Issues No. 00-27, "Application of Issue No. 98-5 to Certain Convertible
Instruments" ("EITF 00-27"), in the fourth quarter of 2000. The adoption of EITF
00-27 resulted in a charge of $246,000 in the year ended December 31, 2000 for
the cumulative effect of a change in accounting principle in accordance with APB
Opinion No. 20, "Accounting Changes."
CERTAIN RISKS AND UNCERTAINTIES. The CombiMatrix group is in the
development stage and its planned products and services will be concentrated in
a highly competitive market that is characterized by rapid technological
advances, frequent changes in customer requirements and evolving regulatory
requirements and
F-112
industry standards. Failure to anticipate or respond adequately to technological
advances, changes in customer requirements, changes in regulatory requirements
or industry standards, or any significant delays in the development or
introduction of planned products or services, could have a material adverse
effect on the Company's business and operating results.
RECENT ACCOUNTING PRONOUNCEMENTS. In June 2001, the FASB issued SFAS No.
141, "Business Combinations" ("SFAS No. 141"), and SFAS No. 142, "Goodwill and
Other Intangible Assets" ("SFAS No. 142"). SFAS No. 141 addresses financial
accounting and reporting for business combinations and supersedes APB Opinion
No. 16, "Business Combinations." Changes made by SFAS No. 141 include (1)
requiring the purchase method of accounting be used for all business
combinations initiated after June 30, 2001 and (2) established specific criteria
for the recognition of intangible assets separately from goodwill. These
provisions are effective for business combinations for which the date of
acquisition is subsequent to June 30, 2001.
SFAS No. 142 addresses how goodwill and other intangible assets should be
accounted for after they have been initially recognized in the financial
statements. This standard provides that goodwill is not subject to amortization.
Instead, it is subject to a periodic review that must occur at least annually at
a reporting unit level for possible impairment. This review is known as the
"two-step" impairment test and provides that the initial "first-step" reviews of
each reporting unit must be completed within six months of the adoption of the
standard. The "first step" of the goodwill impairment test, used to identify
potential impairment, compares the fair value of a reporting unit with its
carrying amount, including goodwill. The fair value of the CombiMatrix group's
one reporting unit will be estimated using the expected present value of future
cash flows, based on the characteristics of the reporting units including
discount rates and growth rates based on management's estimates. If upon
completion of these initial reviews an impairment of goodwill is indicated, the
"second step" will be performed which will compare the implied fair value of
each reporting unit goodwill with the carrying amount of goodwill. While the
CombiMatrix group has yet to complete the initial review, management expects to
do so during the second quarter of 2002. The "second step" of the valuation of
the impairment, if necessary, is to occur as soon as possible, but no later than
the end of the CombiMatrix group's current fiscal year. Any impairment resulting
from the "second step" would be reported as a change in accounting principle and
would require retroactive recognition to the beginning of this fiscal year. The
CombiMatrix group currently does not expect to record an impairment charge upon
completion of the impairment review; however, there can be no assurance that at
the time the review is completed a material impairment charge will not be
recorded. The CombiMatrix group has $2,851,000 of goodwill at December 31, 2001
(net of $1,312,000 of accumulated amortization) and recorded approximately
$862,000 of goodwill amortization expense during 2001. The only identifiable
intangible assets are patents of $6,301,000 at December 31, 2001 (net of
$511,000 of accumulated amortization), which the CombiMatrix group does not
expect to be impacted by the adoption of this standard.
The CombiMatrix group adopted SFAS No. 142 effective January 1, 2002 and
ceased amortizing goodwill on that date. (See also Note 13.) Division net loss,
adjusted to exclude goodwill amortization expense, for the twelve months ended
December 31, 2001, 2000 and 1999, are as follows (in thousands):
FOR THE YEARS ENDED DECEMBER 31,
--------------------------------
2001 2000 1999
-------- -------- -------
Reported net loss $(28,029) $(14,762) $(1,603)
Add back: Goodwill amortization 862 470 30
-------- -------- -------
Adjusted net loss $(27,167) $(14,292) $(1,573)
======== ======== =======
F-113
The gross carrying amounts and accumulated amortization related to acquired
intangible assets, all related to patents, as of December 31, 2001 and 2000, are
as follows (in thousands):
AT DECEMBER 31,
---------------
2001 2000
------ ------
Gross carrying amount - patents $6,812 $6,993
Accumulated amortization (511) (170)
------ ------
Patents, net $6,301 $6,823
====== ======
The estimated aggregate amortization expense for each of the five
succeeding years is as follows (in thousands):
ESTIMATED
AMORTIZATION
YEAR ENDED DECEMBER 31, EXPENSE
----------------------- ------------
2002 341
2003 341
2004 341
2005 341
2006 341
At December 31, 2001, all of the CombiMatrix group's acquired intangible
assets were subject to amortization.
In August 2001, the FASB issued SFAS No. 144, "Accounting for the
Impairment or Disposal of Long-Lived Assets" ("SFAS No. 144"), which addresses
financial accounting and reporting for the impairment of long-lived assets and
for long-lived assets to be disposed of. SFAS No. 144 supersedes SFAS No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
Be Disposed Of." SFAS No. 144 also supersedes the accounting and reporting
provisions of APB Opinion No. 30, "Reporting the Results of Operations -
Reporting the Effects of Disposal of a Segment of a Business, and Extraordinary,
Unusual and Infrequently Occurring Events and Transactions," for segments of a
business to be disposed of. SFAS No. 144 also amends ARB No. 51, "Consolidated
Financial Statements," to eliminate the exception to consolidation for a
temporarily controlled subsidiary. SFAS No. 144 requires long-lived assets to be
tested for recoverability whenever events or changes in circumstances indicate
that its carrying amount may not be recoverable. In conjunction with such tests,
it may be necessary to review depreciation estimates and methods as required by
APB Opinion No. 20, "Accounting Changes," or the amortization period as required
by SFAS No. 142. Management is currently assessing the impact of SFAS No. 144 on
the CombiMatrix group financial position and results of operations.
F-114
3. SHORT-TERM INVESTMENTS
Short-term investments consists of the following at December 31, 2001 and
2000 (in thousands):
AMORTIZED FAIR
COST VALUE
--------- -------
2001
Available-for-sale-securities:
Corporate bonds and notes ............................. $14,427 $14,869
U.S. government securities ............................ 5,643 5,869
------- -------
$20,070 $20,738
======= =======
AMORTIZED FAIR
COST VALUE
--------- -------
2000
Available-for-sale-securities:
Corporate bonds and notes ............................. $37,689 $38,622
U.S. government securities ............................ 1,971 1,978
------- -------
$39,660 $40,600
======= =======
Gross unrealized gains and losses related to available-for-sale securities
were not material for 2001 and 2000.
Contractual maturities for investments in debt securities classified as
available-for-sale as of December 31, 2001 are as follows (in thousands):
FAIR
COST VALUE
------- -------
Due within one year ........................................ $ 5,103 $ 5,669
Due after one year through two years ....................... 14,967 15,069
------- -------
$20,070 $20,738
======= =======
4. PROPERTY AND EQUIPMENT
Property and equipment consists of the following at December 31, 2001 and
2000 (in thousands):
2001 2000
------ ------
Machine shop and laboratory equipment ....................... $ 844 $1,224
Furniture and fixtures ...................................... 125 110
Computer hardware and software .............................. 883 440
Leasehold improvements ...................................... 380 72
Facilities and equipment held under capital lease ........... 3,000 --
Construction in progress .................................... 84 1,346
------ ------
5,316 3,192
Less: accumulated depreciation and amortization ............. (768) (336)
------ ------
$4,548 $2,856
====== ======
Depreciation and amortization expense was $955,000, $266,000 and $52,000
for the years ended December 31, 2001, 2000 and 1999, respectively and
$1,364,000 for the period from inception (October 4, 1995) through December 31,
2001. Amortization of assets held under capital lease was $161,000 for the year
ended December 31, 2001.
F-115
During 2001, CombiMatrix Corporation entered into a sale and leaseback
transaction with a commercial bank. Approximately $3,000,000 of property and
equipment was financed, resulting in a gain of approximately $443,000 (Note 9).
At December 31, 2000, accounts payable included approximately $918,000
related to the acquisition of property and equipment.
5. BALANCE SHEET COMPONENTS
Accounts payable, accrued expenses and other consists of the following at
December 31, 2001 and December 31, 2000 (in thousands):
2001 2000
------ ------
Accounts payable ............................................. $ 627 $2,224
Payroll, vacation and other employee benefits ................ 1,325 454
Other accrued liabilities .................................... 879 201
------ ------
$2,831 $2,879
====== ======
Deferred revenues consist of the following at December 31, 2001 (in
thousands):
2001 2000
------ ----
Milestone and up-front payments .............................. $5,960 $--
Less: current portion ........................................ (372) --
------ ---
$5,588 $--
====== ===
6. PROVISIONS FOR INCOME TAXES
CombiMatrix group's allocated provision (benefit) for income taxes consists
of the following (in thousands):
2001 2000 1999
----- ---- ----
Current:
U.S. Federal tax ...................................... $ -- $ -- $--
State taxes ........................................... 3 -- 2
----- ---- ---
3 -- 2
----- ---- ---
Deferred:
U.S. Federal tax ...................................... (158) (79) --
State taxes ........................................... -- -- --
----- ---- ---
(158) (79) --
----- ---- ---
$(155) $(79) $ 2
===== ==== ===
At December 31, 2001, the CombiMatrix group has net federal deferred tax
assets totaling approximately $17.9 million, which are fully offset by a
valuation allowance due to management's determination that the criteria for
recognition have not been met.
F-116
The tax effects of temporary differences and carryforwards that give rise
to significant portions of deferred assets and liabilities consist of the
following at December 31, 2001 and 2000 (in thousands):
2001 2000
-------- -------
Net operating loss carryforwards and credits ............. $ 13,049 $ 4,928
-------- -------
Intangibles .............................................. (2,531) (2,689)
Depreciation and amortization ............................ (41) (44)
Stock compensation ....................................... 6,260 2,231
Research and development credit carryforwards ............ 813 706
Other .................................................... 386 28
-------- -------
17,936 5,160
Less: valuation allowance ................................ (20,467) (7,849)
-------- -------
$ (2,531) $(2,689)
======== =======
At December 31, 2001, the CombiMatrix group had federal net operating loss
carryforwards of approximately $38.1 million, which will begin to expire in 2010
through 2021. Utilization of net operating loss carryforwards is subject to the
"change of ownership" provisions under Section 382 of the Internal Revenue Code.
The amount of such limitations, if any, has not been determined. In addition,
the CombiMatrix group has tax credit carryforwards of approximately $813,000.
7. DEFERRED STOCK COMPENSATION
During the years ended December 31, 2001 and 2000, in connection with the
granting of stock options to CombiMatrix Corporation employees and members of
the CombiMatrix Corporation's board of directors at exercise prices below fair
market value, CombiMatrix group recorded deferred compensation aggregating
$729,000 and $52.5 million, respectively, which is being amortized over an
accelerated vesting period as prescribed by FIN No. 28. Amortization expense
associated with deferred stock compensation totaled approximately $18.8 million
and $10.2 million for the years ended December 31, 2001 and 2000, respectively.
As a result of stock option cancellations and forfeitures during 2001, deferred
stock compensation and amortization of deferred stock compensation were reduced
by approximately $13.2 million and $4.7 million, respectively. The impact of
stock option cancellations and forfeitures to deferred stock compensation and
amortization of deferred stock compensation prior to 2001 were not significant.
Stock-based compensation expense related to stock options granted to
non-employees is recognized as the stock options are earned. The fair value of
these stock options granted was calculated using the Black-Scholes option
pricing model as prescribed by SFAS No. 123 using the following assumptions:
Risk free interest rate 5.04% to 6.52%
Expected life (in years) 10
Dividend yield --
Expected volatility 75%
In connection with the grant of stock options to non-employees, the
CombiMatrix group recognized deferred stock-based compensation of approximately
$1.2 million during the year ended December 31, 2000. There were no stock
options granted to non-employees during 2001 and 1999.
8. COMMITMENTS AND CONTINGENCIES
SALE AND LEASEBACK ARRANGEMENT
In September 2001, CombiMatrix Corporation entered into a sale and
leaseback arrangement with a bank, providing up to $7,000,000 in financing for
equipment and other capital purchases. Pursuant to the terms of the agreement,
certain equipment and leasehold improvements, totaling $2,557,000 in net book
value were sold to the
F-117
bank at a purchase price of $3,000,000, resulting in a deferred gain on the sale
of assets of $443,000. The deferred gain is being amortized over 4 years, the
term of the related lease arrangement. In addition, CombiMatrix Corporation
entered into a capital lease arrangement to lease the fixed assets from the
bank. The term of the lease is three years, over which monthly principal and
interest payments will approximate $95,000. The capital lease obligation is
collateralized by the property and equipment under lease. CombiMatrix
Corporation is required to maintain certain financial covenants during the term
of the lease. As of December 31, 2001, CombiMatrix Corporation was in compliance
with all covenants. At December 31, 2001, the fair value of the capital lease
obligation was approximately $2.8 million. The capital lease agreement provides
CombiMatrix Corporation with the option to purchase the equipment for a nominal
amount at the end of the lease term, which expires in September 2004.
CombiMatrix group's future minimum lease payments under scheduled capital
leases that have initial or remaining non-cancelable terms in excess of one year
are as follows (in thousands):
YEAR
----
2002.................................. $1,141
2003.................................. 1,141
2004.................................. 855
------
Total minimum payments................ 3,137
Less: amount representing interest... (358)
------
Obligations under capital lease....... 2,779
Less: current portion................ (934)
------
$1,845
======
OPERATING LEASES
In October 2000, CombiMatrix Corporation entered into a non-cancelable
operating lease for office space. A security deposit in the form of a $783,000
letter of credit was issued November 1, 2000, which was increased to $1.2
million during 2001. Future minimum operating lease payments as of December 31,
2001 are as follows (in thousands):
YEAR
----
2002.................................. $ 1,452
2003.................................. 1,720
2004.................................. 1,650
2005.................................. 1,721
2006.................................. 1,735
Thereafter............................ 3,312
-------
Total minimum lease payments.......... $11,590
=======
Rent expense for the years ended December 31, 2001, 2000 and 1999 was
$1,518,000, $478,000 and $278,000, respectively. Rent expense was $2,400,000 for
the cumulative period from October 4, 1995 (date of inception) to December 31,
2001.
COLLABORATIVE AND RESEARCH AGREEMENTS
In July 2001, CombiMatrix Corporation entered into a non-exclusive
worldwide license, supply, research and development agreement with Roche
Diagnostics GmbH ("Roche"). Under the terms of the agreement, Roche will
purchase, use and resell CombiMatrix Corporation's microarray and related
technologies for rapid production of customizable biochips. Additionally,
CombiMatrix Corporation and Roche will develop a platform technology, providing
a range of standardized biochips for use in research applications. The agreement
has a 15-year term and provides for minimum payments by Roche to CombiMatrix
Corporation over the first three years, including payments upon the achievement
of certain milestone and payments for products, royalties and research and
F-118
development projects. For the year ended December 31, 2001, CombiMatrix
Corporation received $5.3 million in milestone payments and product sales, which
have been classified as deferred revenue in the CombiMatrix group December 31,
2001 balance sheet.
RESEARCH AND DEVELOPMENT
In January 2001, CombiMatrix Corporation entered into a design commitment
to develop a next generation microarray. If this design project is successful
pursuant to the terms of the agreement, CombiMatrix Corporation will be
obligated to a one-year commitment to purchase a specific number of
semiconductor wafers at a total cost of $1.1 million.
HUMAN RESOURCES
In October 2001, CombiMatrix Corporation's Board of Directors amended its
existing general severance plan for executive officers, which provides that if
CombiMatrix Corporation terminates an executive who is a vice president or
higher for other than cause, death or disability, the executive will receive
payments equal to three months' base salary and target bonus and other benefits
on a bi-weekly basis over a three-month period. If termination occurs as a
result of a change in control transaction, these benefits will be extended by
three months.
CombiMatrix Corporation also offers a general severance plan providing all
employees with certain benefits upon their termination of employment due to lack
of work. Under this plan, terminated employees will be provided with either
four-weeks' notice or four-weeks' salary in lieu of notice, and paid a lump-sum
amount based on the employee's length of service, plus accrued benefits. The
terminated employees will also be provided continuing medical and dental
benefits, as well as continuation of life insurance, for a period ranging from
two to 26 weeks subsequent to the date of termination, depending upon the
employee's length of service.
LITIGATION
On November 28, 2000, Nanogen, Inc. filed suit against CombiMatrix
Corporation and one of its principal stockholders, executive officers and
members of the CombiMatrix Corporation's Board of Directors. The Nanogen suit
alleges, among other things, that CombiMatrix Corporation's issued patent and
certain pending patent applications, trade secrets and related technologies that
were inappropriately obtained by CombiMatrix Corporation and that Nanogen is the
legal owner of the patents, trade secrets and related technologies. The suit
seeks, among other things, correction of inventorship on CombiMatrix
Corporation's issued patent, the assignment of rights in the issued patent and
pending patent applications to Nanogen, an injunction preventing disclosure of
trade secrets, damages for trade secret misappropriation and the imposition of a
constructive trust.
The litigation is in the early stages, and CombiMatrix Corporation cannot
predict its outcome. While management believes that CombiMatrix Corporation has
defenses to Nanogen's claims, if Nanogen were to prevail in its suit and obtain
the injunction, monetary and other relief that is being sought, CombiMatrix
Corporation would incur significant financial liabilities that would materially
affect CombiMatrix group's financial condition and operating results.
The CombiMatrix group is subject to other claims and legal actions that
arise in the ordinary course of business. Management believes that the ultimate
liability with respect to these claims and legal actions, if any, will not have
a material effect on CombiMatrix group's financial position, results of
operations or cash flows.
9. RETIREMENT SAVINGS PLAN
CombiMatrix Corporation has an employee savings and retirement plan under
section 401(k) of the Internal Revenue Code (the "Plan"). The Plan is a defined
contribution plan in which eligible employees may elect to have a percentage of
their compensation contributed to the Plan, subject to certain guidelines issued
by the Internal Revenue Service. CombiMatrix may contribute to the Plan at the
discretion of the Board of Directors. There were no contributions made by the
CombiMatrix group during the years ended December 31, 1999, 2000 and 2001.
F-119
10. ALLOCATED NET WORTH
The CombiMatrix group statement of allocated net worth presents the equity
transactions of Acacia Research Corporation which are attributed to the
CombiMatrix group as "Net assets attributed to the CombiMatrix group". This
presentation reflects the fact that the CombiMatrix group does not have legally
issued common or preferred stock, nor are warrant issuances or employee stock
transactions legal transactions of the CombiMatrix group. Presented below is a
detail of the equity transactions of Acacia Research Corporation which relate to
the businesses of the CombiMatrix group and which therefore comprise the
balances reflected in the group's "Net assets attributed to CombiMatrix group:"
COMBIMATRIX
GROUP
-----------
1999
Units issued in private placements, net $ 2,300
Allocated corporate charges 311
Increase in capital due to issuance of stock by subsidiaries 666
Compensation expense relating to stock options and warrants --
-------
Net assets attributed to the CombiMatrix group - 1999 $ 3,277
=======
2000
Units issued in private placements, net $19,500
Allocated corporate charges 783
Stock issuance related to acquisition of additional CombiMatrix 11,634
shares Warrants exercised 10,000
Change in capital due to issuance of stock by subsidiaries 2,167
Unrealized gain on short-term investments 77
-------
Net assets attributed to the CombiMatrix group - 2000 $44,161
=======
2001
Allocated corporate charges $ 1,118
Change in capital due to issuance of stock by subsidiaries 546
Unrealized loss on short-term investments (9)
Unrealized loss on foreign currency translation (72)
-------
Net assets attributed to the CombiMatrix group - 2001 $ 1,583
=======
FOR THE SIX MONTHS ENDED JUNE 30, 2002 (UNAUDITED)
Allocated corporate charges $ 561
Unrealized loss on short-term investments (48)
Unrealized loss on foreign currency translation 53
Other (8)
-------
Net assets attributed to the CombiMatrix group
For the Six Months Ended June 30, 2002 $ 558
=======
During February 2000, an officer of the CombiMatrix Corporation entered
into an employment agreement with the CombiMatrix Corporation. Among other
items, the agreement required the officer to purchase
F-120
125,000 shares of CombiMatrix Corporation common stock at $2.00 per share. The
shares were purchased in June 2000 resulting in cash proceeds to the CombiMatrix
group of $250,000.
During October 2001, the KK issued 10% of its common stock to an unrelated
company for $1.0 million. The per-share price paid for these shares exceeded the
price per share paid by Holdings to capitalize the KK. As a result, CombiMatrix
group recognized a change of interest gain of approximately $951,000. The gain,
net of minority interests, has been recorded as an increase to division equity.
WARRANTS
Pursuant to the issuance of convertible promissory notes in March 1998 as
discussed in Note 2, CombiMatrix Corporation issued warrants to purchase 145,000
shares of its common stock at a price of $2.00 per share. These warrants were
exercised in 2000 and 2001, resulting in proceeds to the CombiMatrix group of
$33,000 and $257,000, respectively, which was allocated to the CombiMatrix
group.
11. SUBSEQUENT EVENTS
In February 2002, CombiMatrix was awarded a SBIR Phase I National
Institutes of Health grant for the development of its protein biochip
technology. The title of the grant is "Self-Assembling Protein Microchips." This
grant is in addition to a three-year SBIR Phase I and a Phase II SBIR grants
from the U.S. Department of Defense for the development of multiplexed chip
based assays for chemical and biological warfare agent detection.
In March 2002, the Board has approved the 2002 CombiMatrix Stock Incentive
Plan (the "CombiMatrix Plan") and the 2002 Acacia Technologies Stock Incentive
Plan (the "Acacia Technologies Plan"), subject to Acacia Research Corporation
stockholder approval. The CombiMatrix Plan authorizes grants of stock options,
stock awards and performance shares with respect to the AR-CombiMatrix stock.
The Acacia Technologies Plan authorizes grants of stock options, stock awards
and performance shares with respect to the AR-Acacia Technologies stock. It is
intended, that certain directors, officers and key employees of Acacia Research
Corporation with responsibilities involving both the CombiMatrix group and the
Acacia Technologies group and certain key employees of each group may be granted
awards under both incentive plans in a manner which reflects their
responsibilities. The Board believes that permitting incentive awards to be made
to participants with respect to the class of common stock which reflects the
performance of the group's business in which the participants work and, in
certain cases the other group, is in the best interest of Acacia Research
Corporation and its stockholders.
If the Recapitalization Proposal is implemented, each outstanding stock
option under Acacia Research Corporation's existing stock option plans will be
converted into separately exercisable options to acquire approximately 0.5582 of
a share of AR-CombiMatrix stock and one share of AR-Acacia Technologies stock.
The exercise price for the resulting AR-Acacia Technologies stock options and
AR-CombiMatrix stock options will be calculated by multiplying the exercise
price under such existing stock option by a fraction, the numerator of which is
the opening price of the applicable class of common stock underlying such option
on the first date such stocks are traded after the recapitalization, and the
denominator of which is the sum of such prices for the AR-CombiMatrix stock and
the AR-Acacia Technologies stock.
On April 25, 2002, CombiMatrix Corporation purchased Acacia Research
Corporation's interest in Advanced Material Sciences, Inc., a development stage
company that holds the exclusive license for CombiMatrix Corporation's
biological array processor technology in certain fields of material science.
CombiMatrix Corporation issued 180,982 shares of its common stock in exchange
for Acacia Research Corporation's 58% direct interest in Advanced Material
Sciences, Inc. CombiMatrix Corporation currently owns 87% of Advanced Material
Sciences and the remaining interests are owned by unaffiliated entities.
F-121
12. SUPPLEMENTAL CASH FLOW INFORMATION (IN THOUSANDS)
FOR THE YEARS ENDED FOR THE PERIOD FROM
DECEMBER 31, INCEPTION
-------------------------- (OCTOBER 4, 1995) TO
2001 2000 1999 DECEMBER 31, 2001
------- ------- ------ --------------------
Supplemental disclosures of cash flow information:
Cash paid for interest .............................................. $ 42 $ -- $ -- $ 42
Supplemental schedule of non-cash investing and financing activities:
Fixed assets purchased with accounts payable ........................ (918) 918 -- --
Purchase of equipment under capital lease agreement ................. (3,000) -- -- (3,000)
Capital lease obligation incurred ................................... 3,000 -- -- 3,000
Conversion of promissory notes to common stock ...................... -- -- 1,291 1,291
Fair value of options and warrants issued for services .............. -- 1,239 36 1,486
Intangibles attributed to the CombiMatrix group ..................... -- 11,634 288 11,922
13. INTERIM FINANCIAL INFORMATION (UNAUDITED)
UNAUDITED INTERIM INFORMATION
The unaudited CombiMatrix group financial statements as of June 30, 2002,
and for the six months ended June 30, 2002 and 2001, have been prepared in
accordance with generally accepted accounting principles for interim financial
information. These interim financial statements should be read in conjunction
with the CombiMatrix group financial statements and Acacia Research
Corporation's financial statements and notes thereto for the year ended December
31, 2001.
The CombiMatrix group financial statements include all adjustments of a
normal recurring nature which, in the opinion of management, are necessary for a
fair presentation of its financial position as of June 30, 2002, the results of
its operations for the three and six months ended June 30, 2002 and 2001, its
cash flows for the six months ended June 30, 2002 and 2001 and allocated net
worth for the six months ended June 30, 2002. The results of operations for the
three and six months ended June 30, 2002 are not necessarily indicative of the
results to be expected for the entire year.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 2001, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 141, "Business
Combinations" ("SFAS No. 141"), and SFAS No. 142, "Goodwill and Other Intangible
Assets" ("SFAS No. 142"). SFAS No. 141 addresses financial accounting and
reporting for business combinations and supersedes Accounting Principles Board
("APB") Opinion No. 16, "Business Combinations." Changes made by SFAS No. 141
include (1) requiring the purchase method of accounting be used for all business
combinations initiated after June 30, 2001 and (2) establishing specific
criteria for the recognition of intangible assets separately from goodwill.
These provisions are effective for business combinations for which the date of
acquisition is subsequent to June 30, 2001.
The CombiMatrix group adopted SFAS No. 142 effective January 1, 2002 and
ceased amortizing goodwill on that date. SFAS No. 142 addresses how goodwill and
other intangible assets should be accounted for after they have been initially
recognized in the financial statements. This standard provides that goodwill is
not subject to amortization. Instead, it is subject to a periodic review that
must occur at least annually at a reporting unit level for possible impairment.
This review is known as the "two-step" impairment test and provides that the
initial "first-step" reviews of each reporting unit must be completed within six
months of the adoption of the standard. The "first-step" of the goodwill
impairment test, used to identify potential impairment, compares the fair value
of each reporting unit with its carrying amount, including goodwill. If upon
completion of these initial reviews an impairment of goodwill is indicated, the
"second-step" is required to be performed, which will compare the implied
F-122
fair value of each reporting unit goodwill with the carrying amount of goodwill.
In connection with the adoption of SFAS No. 142, the CombiMatrix group performed
a transitional goodwill impairment assessment and determined that there was no
impairment of goodwill. The fair value of the CombiMatrix group's one reporting
unit was estimated using a discounted cash flow analysis. There can be no
assurance that a future goodwill impairment test will not result in a charge to
earnings.
The CombiMatrix group had $2,851,000 of goodwill at June 30, 2002 and
December 31, 2001 (net of $1,311,000 of accumulated amortization) and recorded
approximately $203,000 and $402,000 of goodwill amortization expense during the
three and six months ended June 30, 2001, respectively.
The CombiMatrix group's net loss, adjusted to exclude goodwill amortization
expense, for the three and six months ended June 30, 2002 and 2001 are as
follows (in thousands, except earnings per share amounts):
THREE MONTHS ENDED SIX MONTHS ENDED
------------------- -------------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30,
2002 2001 2002 2001
-------- -------- -------- --------
Reported net loss $(5,895) $(7,869) $(9,482) $(16,143)
Add back: goodwill amortization -- 203 -- 402
------- ------- ------- --------
Adjusted net loss $(5,895) $(7,666) $(9,482) $(15,741)
======= ======= ======= ========
The CombiMatrix group 's only identifiable intangible assets are patents.
The gross carrying amounts and accumulated amortization related to acquired
intangible assets as of June 30, 2002 and December 31, 2001 are as follows (in
thousands):
AT AT
JUNE 30, DECEMBER 31,
2002 2001
-------- ------------
Gross carrying amount - patents $6,812 $6,812
Accumulated amortization (681) (511)
------ ------
Patents, net $6,131 $6,301
====== ======
Aggregate patent amortization expense was $99,000 for the three months
ended June 30, 2002 and 2001, respectively. Aggregate patent amortization
expense was $198,000 for the six months ended June 30, 2002 and 2001,
respectively.
The estimated aggregate amortization expense for the years ended December
31, 2002 through 2006 is as follows (in thousands):
ESTIMATED
YEAR ENDED AMORTIZATION
DECEMBER 31, EXPENSE
------------ ------------
2002 341
2003 341
2004 341
2005 341
2006 341
At June 30, 2002 and December 31, 2001, all of the CombiMatrix group's
acquired intangible assets were subject to amortization.
On January 1, 2002, the CombiMatrix group adopted SFAS No. 144, "Accounting
for the Impairment or Disposal of Long-Lived Assets" ("SFAS No. 144"), which
addresses financial accounting and reporting for the
F-123
impairment of long-lived assets and for long-lived assets to be disposed of.
SFAS No. 144 supersedes SFAS No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of." SFAS No. 144
also supersedes the accounting and reporting provisions of APB Opinion No. 30,
"Reporting the Results of Operations - Reporting the Effects of Disposal of a
Segment of a Business, and Extraordinary, Unusual and Infrequently Occurring
Events and Transactions," for segments of a business to be disposed of. SFAS No.
144 also amends Accounting Research Bulletin No. 51, "Consolidated Financial
Statements," to eliminate the exception to consolidation for a temporarily
controlled subsidiary. SFAS No. 144 requires long-lived assets to be tested for
recoverability whenever events or changes in circumstances indicate that its
carrying amount may not be recoverable. In conjunction with such tests, it may
be necessary to review depreciation estimates and methods as required by APB
Opinion No. 20, "Accounting Changes," or the amortization period as required by
SFAS No. 142. The adoption of SFAS No. 144 did not have a material effect on the
CombiMatrix group's consolidated results of operations or financial position.
In April 2002, the FASB issued SFAS No. 145, "Rescission of FASB Statements
No. 4, 44 and 64, Amendment of FASB Statement No. 13, and Technical
Corrections," ("SFAS No. 145"), which is effective for transactions occurring
after May 15, 2002. SFAS No. 145 rescinds SFAS No. 4 and SFAS No. 64, which
addressed the accounting for gains and losses from extinguishment of debt. SFAS
No. 44 set forth industry-specific transitional guidance that did not apply to
us. SFAS No. 145 amends SFAS No. 13 to require that certain lease modifications
that have economic effects similar to sale-leaseback transactions be accounted
for in the same manner as sale-leaseback transactions. SFAS No. 145 also makes
technical corrections to certain existing pronouncements that are not
substantive in nature. The CombiMatrix group does not expect the adoption of
SFAS No. 145 to have a significant impact on its financial position or results
of operations.
In June 2002, the FASB issued SFAS No. 146, "Accounting for Costs
Associated with Exit or Disposal Activities" ("SFAS No. 146"). SFAS No. 146
nullifies Emerging Issues Task Force ("EITF") Issue No. 94-3, "Liability
Recognition for Certain Employee Termination Benefits and Other Costs to Exit an
Activity," under which a liability for an exit cost was recognized at the date
of an entity's commitment to an exit plan. SFAS No. 146 requires that a
liability for a cost associated with an exit or disposal activity be recognized
at fair value when the liability is incurred. The provisions of this statement
are effective for exit or disposal activities that are initiated after December
31, 2002. The CombiMatrix group does not expect the adoption of SFAS No. 146 to
have a significant impact on its financial position or results of operations.
COMMITMENTS AND CONTINGENCIES
On November 28, 2000, Nanogen, Inc. filed a complaint in the United States
District Court for the Southern District of California against CombiMatrix and
Donald D. Montgomery, Ph.D., Senior Vice President, Chief Technology Officer and
a director of CombiMatrix. Dr. Montgomery was employed by Nanogen as a senior
research scientist between May 1994 and August 1995. The Nanogen complaint
alleges, among other things, breach of contract, trade secret misappropriation
and that U.S. Patent No. 6,093,302 and other proprietary information belonging
to CombiMatrix are instead the property of Nanogen. The complaint seeks, among
other things, correction of inventorship on the patent, the assignment of rights
in the patent and pending patent applications to Nanogen, an injunction
preventing disclosure of trade secrets, damages for trade secret
misappropriation and the imposition of a constructive trust. On December 15,
2000, CombiMatrix and Dr. Montgomery filed a motion to dismiss the lawsuit,
which was denied in part and granted in part on February 1, 2001. On March 9,
2001, CombiMatrix and Dr. Montgomery filed a counterclaim, alleging breach of
express covenants not to sue or otherwise interfere with Dr. Montgomery arising
out of a release signed by Nanogen in 1996. On April 4, 2001, Nanogen filed a
motion to dismiss the counterclaim, which the court denied in its entirety on
July 27, 2001. On July 31, 2002, the court denied a motion filed by CombiMatrix
for partial summary judgment regarding Donald Montgomery's prior settlement
agreement with Nanogen.
F-124
SUBSEQUENT EVENTS
On September 30, 2002, CombiMatrix Corporation and Dr. Donald Montgomery,
an officer and stockholder of CombiMatrix Corporation, entered into a settlement
agreement with Nanogen, Inc. to settle all pending litigation between the
parties. Pursuant to the terms of the settlement agreement, CombiMatrix
Corporation agreed to pay Nanogen $500,000 within 30 days of the settlement and
an additional $500,000 within one year of the settlement. CombiMatrix
Corporation also agreed to make quarterly payments to Nanogen equal to 12.5% of
total sales of products developed by CombiMatrix Corporation and its affiliates
and based on the patents that had been in dispute in the litigation, up to an
annual maximum of $1,500,000. The minimum quarterly payments under the
settlement agreement will be $37,500 per quarter for the period from October 1,
2003 through October 1, 2004, and $25,000 per quarter thereafter until the
patents expire. Also pursuant to the settlement agreement, CombiMatrix
Corporation agreed to issue 4,016,346 shares, or 17.5% of its outstanding shares
post issuance, to Nanogen, subject to antidilution provisions under specified
circumstances, including the exercise of outstanding options and warrants and
issuances of additional capital stock of CombiMatrix Corporation, for a period
of up to three years.
The issuance of shares by CombiMatrix Corporation to Nanogen, Inc.
decreases Acacia Research Corporations consolidated ownership interest in
CombiMatrix Corporation from 58% to 48%. Acacia Research Corporation continues
to possess the ability to direct or cause the direction of the management and
policies of CombiMatrix Corporation, primarily through Acacia Research
Corporation's ability to elect the majority of the board of directors of
CombiMatrix Corporation, pursuant to a stockholder agreement with an officer of
CombiMatrix Corporation. This stockholder agreement stipulates that,
collectively, Acacia Research Corporation and the officer who is party to the
stockholder agreement, will vote their shares such that the board will be
comprised of the directors nominated by Acacia Research Corporation and the
stockholder. The stockholder is generally prohibited from selling his shares and
Acacia Research Corporation has a right of first refusal should the stockholder
wish to sell his shares. Accordingly, the Company will continue to account for
its investment in CombiMatrix Corporation under the consolidation method of
accounting.
CombiMatrix Corporation will account for the issuance of the CombiMatrix
Corporation common shares in settlement of the litigation with Nanogen, Inc. as
a nonmonetary transaction. Accordingly, in the third quarter of 2002,
CombiMatrix Corporation will record a litigation settlement charge in the
consolidated statement of operations of approximately $18.0 million, which is
based on the fair value of the CombiMatrix Corporation common shares issued to
Nanogen, Inc. The fair value of the common shares issued and the related
litigation charge was based on a third-party valuation of CombiMatrix
Corporation.
In October 2002, CombiMatrix was in non-compliance with one of its
covenants under its capital lease obligation with a commercial bank. CombiMatrix
paid the remaining balance of the obligation in the amount of $2.1 million on
November 1, 2002.
F-125
ANNEX A
-------
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
ACACIA RESEARCH CORPORATION,
COMBI ACQUISITION CORP.
AND
COMBIMATRIX CORPORATION
DATED AS OF MARCH 20, 2002
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I THE MERGER.................................................A-2
1.1 The Merger.................................................A-2
1.2 Filing of Certificate of Merger; Effective Time............A-2
1.3 Effect of the Merger.......................................A-2
1.4 The Closing................................................A-3
1.5 Acacia Charter Amendment and Common Stock Policies.........A-3
1.6 Conversion of CombiMatrix Common Stock.....................A-3
1.7 Conversion of CombiMatrix Options..........................A-4
1.8 Restricted Stock...........................................A-5
1.9 Appraisal Rights...........................................A-5
1.10 Exchange Procedures........................................A-5
1.11 Dividends, Fractional Shares, Etc..........................A-6
1.12 Tax Consequences...........................................A-8
1.13 Further Action.............................................A-8
ARTICLE II REPRESENTATIONS AND WARRANTIES OF ACACIA AND ACQUISITION
COMPANY....................................................A-8
2.1 Organization of Acacia and Acquisition Company.............A-8
2.2 Acacia Capital Structure...................................A-9
2.3 Authority..................................................A-9
2.4 No Conflict...............................................A-10
2.5 Consents..................................................A-10
2.6 SEC Documents and Acacia Financial Statements.............A-11
2.7 Acacia CombiMatrix Stock..................................A-11
2.8 Ownership of Acquisition Company; No Prior Activities.....A-12
2.9 Brokers' and Finders' Fees................................A-12
2.10 Acacia Charter Amendment and Acacia Common Stock Policies.A-12
2.11 Reorganization............................................A-12
ARTICLE III REPRESENTATIONS AND WARRANTIES OF COMBIMATRIX.............A-12
3.1 Organization, Standing and Power..........................A-13
3.2 Authority; No Conflict; Consents..........................A-13
3.3 CombiMatrix Capital Structure.............................A-14
3.4 CombiMatrix Financial Statements..........................A-15
3.5 No Undisclosed Liabilities................................A-15
3.6 No Changes................................................A-15
3.7 Restrictions on Business Activities.......................A-15
3.8 Brokers' and Finders' Fees................................A-16
3.9 Reorganization............................................A-16
ARTICLE IV COVENANTS.................................................A-16
4.1 Registration Statement; Proxy Statement;
Prospectus/Information Statement..........................A-16
A-i
4.2 Stockholder Meetings......................................A-17
4.3 Cooperation; Access to Information........................A-17
4.4 Conduct of Business of CombiMatrix........................A-18
4.5 Expenses..................................................A-18
4.6 Public Disclosure.........................................A-18
4.7 Consents..................................................A-18
4.8 Reasonable Efforts........................................A-19
4.9 Notification of Certain Matters...........................A-19
4.10 Additional Documents and Further Assurances...............A-19
4.11 Assumption of CombiMatrix Options; Form S-8...............A-19
4.12 [Intentionally Omitted]...................................A-20
4.13 Officers' and Directors' Indemnification..................A-20
4.14 Certain Tax Matters.......................................A-21
4.15 Exemption from Liability Under Section 16(b)..............A-22
4.16 Agreements from Certain Affiliates of CombiMatrix.........A-22
ARTICLE V CONDITIONS TO THE MERGER..................................A-23
5.1 Conditions to Obligations of Each Party...................A-23
5.2 Conditions to Obligations of Acacia.......................A-24
5.3 Conditions to the Obligations of CombiMatrix..............A-25
ARTICLE VI TERMINATION, AMENDMENT AND WAIVER.........................A-27
6.1 Termination...............................................A-27
6.2 Effect of Termination.....................................A-28
6.3 Amendment.................................................A-28
6.4 Extension; Waiver.........................................A-28
ARTICLE VII GENERAL PROVISIONS........................................A-29
7.1 Survival..................................................A-29
7.2 Disclaimer of Other Representations and Warranties........A-29
7.3 Notices...................................................A-29
7.4 Interpretation............................................A-30
7.5 Counterparts..............................................A-30
7.6 Entire Agreement; Assignment..............................A-30
7.7 Severability..............................................A-30
7.8 Other Remedies............................................A-30
7.9 Governing Law.............................................A-31
7.10 Rules of Construction.....................................A-31
7.11 Specific Performance......................................A-31
A-ii
INDEX
-----
PAGE(S)
-------
Acacia.......................................................................A-1
Acacia Capital Stock.........................................................A-4
Acacia Charter Amendment.....................................................A-3
Acacia CombiMatrix Option....................................................A-4
Acacia CombiMatrix Stock.....................................................A-4
Acacia Common Stock..........................................................A-4
Acacia Common Stock Policies.................................................A-3
Acacia Disclosure Schedule...................................................A-8
Acacia SEC Documents........................................................A-11
Acacia Stock Plans...........................................................A-9
Acacia Stockholders Meeting.................................................A-17
Acacia Technologies Stock....................................................A-4
Acquisition Company..........................................................A-1
Acquisition Company Capital Stock............................................A-9
Affiliate Agreement..........................................................A-8
Affiliates..................................................................A-22
Agreement....................................................................A-1
Certificate of Merger........................................................A-2
Certificates.................................................................A-6
Change of Law...............................................................A-24
Closing......................................................................A-3
Closing Date.................................................................A-3
Closing Tax Certificate.....................................................A-21
Code.........................................................................A-1
CombiMatrix..................................................................A-1
CombiMatrix Capital Stock....................................................A-4
CombiMatrix Common Stock.....................................................A-4
CombiMatrix Corporation......................................................A-2
CombiMatrix Disclosure Schedule.............................................A-12
CombiMatrix Financials......................................................A-15
CombiMatrix Insiders........................................................A-22
CombiMatrix Option...........................................................A-4
CombiMatrix Option Plans....................................................A-14
CombiMatrix Stockholders Meeting............................................A-17
Conflict....................................................................A-10
DGCL.........................................................................A-2
Dissenting Shares............................................................A-5
Effective Time...............................................................A-2
Exchange Act................................................................A-10
Exchange Agent...............................................................A-5
Exchange Ratio...............................................................A-3
Form S-4 Registration Statement.............................................A-11
GAAP........................................................................A-11
Governmental Body...........................................................A-11
A-iii
PAGE(S)
-------
Indemnified Party...........................................................A-20
Material Adverse Effect......................................................A-8
Merger.......................................................................A-2
Proxy Statement.............................................................A-10
PWC Closing Tax Opinion.....................................................A-23
Required Acacia Stockholder Vote............................................A-17
Required CombiMatrix Stockholder Vote.......................................A-17
SEC.........................................................................A-10
Section 16 Information......................................................A-22
Securities Act...............................................................A-8
Surviving Corporation........................................................A-2
A-iv
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made
and entered into as of March 20, 2002 by and among Acacia Research Corporation,
a Delaware corporation ("Acacia"), Combi Acquisition Corp., a Delaware
corporation and wholly owned subsidiary of Acacia ("Acquisition Company"), and
CombiMatrix Corporation, a Delaware corporation ("CombiMatrix").
R E C I T A L S :
- - - - - - - -
A. The Boards of Directors of each of Acacia, CombiMatrix and
Acquisition Company believe that it is in the best interests of each such
company and its respective stockholders to consummate the reorganization
provided for herein, pursuant to which Acacia will directly acquire all of the
capital stock of CombiMatrix through a merger of CombiMatrix with and into
Acquisition Company, with Acquisition Company being the surviving corporation.
B. Immediately prior to the effective time of such merger, the
Certificate of Incorporation of Acacia will be amended and restated to, among
other things, authorize 50,000,000 shares of Acacia CombiMatrix Stock (as
defined below) and 50,000,000 shares of Acacia Technologies Stock (as defined
below), both of which will be new classes of common stock of Acacia.
C. In the merger, the non-dissenting stockholders of CombiMatrix
other than Acacia will receive shares of Acacia CombiMatrix Stock in exchange
for their shares of capital stock of CombiMatrix.
D. The parties intend that the merger will qualify as a
reorganization under the provisions of Section 368(a)(1)(A) of the United States
Internal Revenue Code of 1986, as amended (the "Code"), by reason of Section
368(a)(2)(D) thereof.
E. Acacia, Acquisition Company and CombiMatrix desire to make
certain representations, warranties, covenants and other agreements in
connection with the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the covenants, promises,
representations and warranties set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
A-1
ARTICLE I
---------
THE MERGER
----------
1.1. THE MERGER.
----------
Subject to the terms and conditions of this Agreement and in accordance
with the Delaware General Corporation Law (the "DGCL"), at the Effective Time,
CombiMatrix shall merge (the "Merger") with and into Acquisition Company in
accordance with the applicable provisions of the DGCL, whereupon CombiMatrix's
separate corporate existence shall cease and Acquisition Company shall be the
surviving corporation in the Merger (the "Surviving Corporation") and shall
continue its corporate existence under the laws of the State of Delaware. The
effects and consequences of the Merger shall be as set forth in Section 1.3
below.
1.2 FILING OF CERTIFICATE OF MERGER; EFFECTIVE TIME.
-----------------------------------------------
Acquisition Company shall cause a certificate of merger with respect to
the Merger in such form as is required by and executed in accordance with the
relevant provisions of the DGCL (the "Certificate of Merger") to be filed on the
date of the Closing (as defined in Section 1.4), or such other date as
CombiMatrix, Acacia and Acquisition Company may agree, with the Secretary of
State of the State of Delaware as provided in the DGCL. The Merger shall become
effective at the time and date on which the Certificate of Merger has been duly
filed with the Secretary of State or such time and date as is agreed upon by the
parties and specified in the Certificate of Merger, and such time and date are
referred to herein as the "Effective Time."
1.3 EFFECT OF THE MERGER.
---------------------
The parties agree to the following provisions with respect to the
Merger:
(a) NAME OF SURVIVING CORPORATION.
-----------------------------
The name of the Surviving Corporation from and after the Effective Time
shall be "CombiMatrix Corporation."
(b) CERTIFICATE OF INCORPORATION.
----------------------------
Article First of the Certificate of Incorporation of Acquisition
Company shall be amended as of the Effective Time so as to read in its entirety:
"The name of the Corporation is CombiMatrix Corporation." and, as so amended,
such Certificate of Incorporation shall be the Certificate of Incorporation of
the Surviving Corporation until thereafter amended as provided by law and such
Certificate of Incorporation.
A-2
(c) BYLAWS.
------
The Bylaws of Acquisition Company shall be the Bylaws of the Surviving
Corporation until thereafter amended as provided by law and such Bylaws, except
that the name of the corporation set forth therein shall be changed to
CombiMatrix Corporation.
(d) DIRECTORS.
----------
The directors of Acquisition Company immediately prior to the Effective
Time shall be the directors of the Surviving Corporation as of the Effective
Time and until their successors are duly appointed or elected in accordance with
applicable law, or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Certificate of Incorporation and
Bylaws.
(e) OFFICERS.
--------
The officers of the Surviving Corporation at the Effective Time shall
be the officers of CombiMatrix immediately prior to the Effective Time until
their successors are duly appointed or elected in accordance with applicable
law, or until their earlier death, resignation or removal in accordance with the
Surviving Corporation's Certificate of Incorporation and Bylaws.
1.4 THE CLOSING.
-----------
Subject to the terms and conditions of this Agreement, the closing of
the transactions contemplated by this Agreement (the "Closing") shall take place
at the offices of Allen Matkins Leck Gamble & Mallory LLP, 1901 Avenue of the
Stars, Suite 1800, Los Angeles, CA 90067-6019, at 10:00 a.m., local time, on (a)
the next business day after the last to be fulfilled or waived of the conditions
set forth in Article V shall be fulfilled or waived in accordance herewith
(other than conditions which by their nature are to be satisfied at the Closing,
but subject to such conditions) or (b) at such other time, date or place as
CombiMatrix and Acacia may agree in writing. The date on which the Closing
occurs is referred to herein as the "Closing Date."
1.5 ACACIA CHARTER AMENDMENT AND COMMON STOCK POLICIES.
---------------------------------------------------
On the Closing Date, immediately prior to the consummation of the
Merger and the filing of the Certificate of Merger, Acacia shall file the
proposed amendment and restatement of the Certificate of Incorporation of Acacia
substantially as set forth as EXHIBIT A hereto (the "Acacia Charter Amendment")
with the Secretary of State of the State of Delaware. The Board of Directors has
adopted resolutions approving the Acacia Charter Amendment and certain policies
pertaining to the Acacia Common Stock (as defined in Section 1.6) substantially
as set forth as EXHIBIT B hereto (the "Acacia Common Stock Policies").
1.6 CONVERSION OF COMBIMATRIX COMMON STOCK.
---------------------------------------
(a) At the Effective Time, by virtue of the Merger and without any
action on the part of the holders thereof:
A-3
(i) Each issued and outstanding share of CombiMatrix Capital
Stock (other than shares owned by Acacia, shares held in CombiMatrix's
treasury, and any Dissenting Shares) shall be converted into and
represent the right to receive 1.00 share of Acacia CombiMatrix Stock
(the "Exchange Ratio");
(ii) Each share of CombiMatrix Capital Stock owned by Acacia
or held in CombiMatrix's treasury shall be canceled and retired without
payment of any consideration therefor.
(b) If, between the date of this Agreement and the Effective Time, the
outstanding shares of CombiMatrix Common Stock are changed into, or there is a
record date for a transaction in which the outstanding shares of CombiMatrix
Common Stock will be changed into, a different number or class of shares by
reason of any stock split, stock dividend, reverse stock split,
reclassification, recapitalization or other similar transaction, then the
Exchange Ratio shall be appropriately adjusted.
(c) For purposes of this Agreement, (i) "CombiMatrix Common Stock"
means the common stock, par value $0.001 per share, of CombiMatrix; (ii)
"CombiMatrix Capital Stock" means all shares of CombiMatrix Common Stock and all
shares of any other capital stock of CombiMatrix; (iii) "Acacia CombiMatrix
Stock" means the Acacia Research--CombiMatrix Common Stock, par value $0.001 per
share, of Acacia, a new class of Acacia Capital Stock that will have the terms
and features set forth in the Acacia Charter Amendment; (iv) "Acacia
Technologies Stock" means the Acacia Research--Acacia Technologies Common Stock,
par value $0.001 per share, of Acacia, a new class of Acacia Capital Stock that
will have the terms and features set forth in the Acacia Charter Amendment; (v)
"Acacia Common Stock" means the common stock, par value $0.001 per share, of
Acacia; and (vi) "Acacia Capital Stock" means all shares of Acacia Common Stock
and all shares of any other capital stock of Acacia.
1.7 CONVERSION OF COMBIMATRIX OPTIONS.
---------------------------------
At the Effective Time, each issued and outstanding option and warrant
to acquire or receive CombiMatrix Capital Stock (whether or not vested) (each a
"CombiMatrix Option") shall be transferred to and assumed by Acacia in such
manner that it is converted into an option to purchase shares of Acacia
CombiMatrix Stock (each an "Acacia CombiMatrix Option"), as provided below.
Following the Effective Time, each such Acacia CombiMatrix Option shall be
exercisable upon the same terms and conditions as then are applicable to such
CombiMatrix Option, except that (i) each such Acacia CombiMatrix Option shall be
exercisable for that number of shares of Acacia CombiMatrix Stock equal to the
product obtained by multiplying the number of shares of CombiMatrix Capital
Stock that were issuable upon exercise in full of such assumed CombiMatrix
Option immediately prior to the Effective Time by the Exchange Ratio, rounded
down to the nearest whole number of shares of Acacia CombiMatrix Stock and (ii)
the per share exercise price for the shares of Acacia CombiMatrix Stock issuable
upon exercise of such Acacia CombiMatrix Option shall be equal to the quotient
obtained by dividing the exercise price per share of CombiMatrix Capital Stock
A-4
at which such CombiMatrix Option was exercisable immediately prior to the
Effective Time by the Exchange Ratio, rounded up to the nearest whole cent. It
is the intention of the parties that, to the extent that any such CombiMatrix
Option constituted an "incentive stock option" (within the meaning of Section
422 of the Code) immediately prior to the Effective Time, the Acacia CombiMatrix
Option shall continue to qualify as an incentive stock option to the maximum
extent permitted by Section 422 of the Code, and that the assumption of
CombiMatrix Options provided by this Section 1.7 shall satisfy the conditions of
Section 424(a) of the Code.
1.8 RESTRICTED STOCK.
----------------
If any shares of CombiMatrix Capital Stock outstanding immediately
prior to the Effective Time are unvested or are subject to a repurchase option,
risk of forfeiture or other condition under any applicable restricted stock
purchase agreement or other agreement with CombiMatrix or under which
CombiMatrix has any rights, then the shares of Acacia CombiMatrix Stock issued
in exchange for such shares of CombiMatrix Capital Stock will also be unvested
and subject to the same repurchase option, risk of forfeiture or other
condition, and the certificates representing such shares of Acacia CombiMatrix
Stock may accordingly be marked with appropriate legends. CombiMatrix shall take
all action that may be necessary to ensure that, from and after the Effective
Time, Acacia is entitled to exercise any such repurchase option or other right
set forth in any such restricted stock purchase agreement or other agreement.
1.9 APPRAISAL RIGHTS.
-----------------
Notwithstanding anything in this Agreement to the contrary, shares of
CombiMatrix Capital Stock held by a holder who, pursuant to Section 262 of the
DGCL or any successor provision, has the right to demand and properly demands an
appraisal of such shares of CombiMatrix Capital Stock ("Dissenting Shares"),
shall not be converted into the right to receive Acacia CombiMatrix Stock as set
forth in Section 1.6, unless such holder fails to perfect or otherwise loses
such holder's right to such appraisal, if any. If, after the Effective Time,
such holder fails to perfect or loses any such right to appraisal, such holder's
Dissenting Shares shall be treated as having been converted as of the Effective
Time into the right to receive Acacia CombiMatrix Stock as set forth in Section
1.6. At the Effective Time, any holder of Dissenting Shares shall cease to have
any rights with respect thereto, except the rights provided in Section 262 of
the DGCL or any successor provision and as provided in the immediately preceding
sentence. CombiMatrix shall give prompt notice to Acacia of any demands received
by CombiMatrix for appraisal of shares of CombiMatrix Capital Stock and the
opportunity to participate in all negotiations and proceedings with respect to
any such demand. Except to the extent otherwise required by the DGCL,
CombiMatrix shall not make any payment or settlement offer prior to the
Effective Time with respect to any such demand unless Acacia shall have
consented in writing to such payment or settlement offer.
1.10 EXCHANGE PROCEDURES.
--------------------
(a) Acacia shall appoint a bank trust company or other reputable
institution reasonably acceptable to CombiMatrix to serve as exchange agent (the
"Exchange Agent") in the Merger.
A-5
(b) Promptly after the Effective Time, Acacia shall make available to
the Exchange Agent for exchange in accordance with this Article I the shares of
Acacia CombiMatrix Stock issuable pursuant to this Article I in exchange for all
of the outstanding shares of CombiMatrix Capital Stock.
(c) Promptly after the Effective Time, Acacia shall cause the Exchange
Agent to mail to each holder of record (as of the Effective Time) a certificate
or certificates (the "Certificates"), which immediately prior to the Effective
Time represented outstanding shares of CombiMatrix Capital Stock whose shares
were converted into shares of Acacia CombiMatrix Stock pursuant to Section 1.6
and any dividends or other distributions pursuant to Section 1.11, (i) a letter
of transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall contain such other provisions as
Acacia may reasonably specify) and (ii) instructions for use in effecting the
surrender of the Certificates in exchange for certificates representing shares
of Acacia CombiMatrix Stock and any dividends or other distributions pursuant to
Section 1.11. Upon surrender of Certificates for cancellation to the Exchange
Agent, together with such letter of transmittal, duly completed and validly
executed in accordance with the instructions thereto, the holders of such
Certificates shall be entitled to receive in exchange therefor certificates
representing the number of whole shares of Acacia CombiMatrix Stock into which
their shares of CombiMatrix Capital Stock were converted at the Effective Time
and any dividends or distributions payable pursuant to Section 1.11, and the
Certificates so surrendered shall forthwith be canceled. Until so surrendered,
outstanding Certificates will be deemed from and after the Effective Time, for
all corporate purposes, subject to Section 1.11 as to the payment of dividends,
to evidence the ownership of the number of full shares of Acacia CombiMatrix
Stock into which such shares of CombiMatrix Capital Stock shall have been so
converted and any dividends or distributions payable pursuant to Section 1.11.
If any portion of the Acacia CombiMatrix Stock, and cash in lieu of fractional
shares thereof (and any dividends or distributions thereon) otherwise payable
hereunder to any person, is to be issued or paid to a person other than the
person in whose name the Certificate is registered, it shall be a condition to
such issuance or payment that the Certificate so surrendered shall be properly
endorsed or otherwise be in proper form for transfer and that the person
requesting such issuance or payment shall pay to the Exchange Agent any transfer
or other taxes required as a result of such issuance or payment to a person
other than the registered holder of such Certificate or establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
payable.
1.11 DIVIDENDS, FRACTIONAL SHARES, ETC.
---------------------------------
(a) Notwithstanding any other provisions of this Agreement, no
dividends or other distributions declared after the Effective Time on Acacia
CombiMatrix Stock shall be paid with respect to any shares of CombiMatrix
Capital Stock represented by a Certificate, nor shall any cash payment in lieu
of fractional shares be paid with respect to any such shares, until such
Certificate is surrendered for exchange as provided herein. Subject to the
effect of applicable laws, following surrender of any such Certificate, there
shall be paid to the holder of the Acacia CombiMatrix Stock certificates issued
A-6
in exchange therefor, without interest, (i) at the time of such surrender, the
amount of dividends or other distributions with a record date after the
Effective Time theretofore payable with respect to such whole shares of Acacia
CombiMatrix Stock and not paid, less the amount of any withholding taxes which
may be required thereon and (ii) at the appropriate payment date, the amount of
dividends or other distributions with a record date after the Effective Time but
prior to surrender and a payment date subsequent to surrender payable with
respect to such whole shares of Acacia CombiMatrix Stock, less the amount of any
withholding taxes which may be required thereon.
(b) All shares of Acacia CombiMatrix Stock issued upon surrender of
Certificates in accordance with this Article I shall be deemed to be in full
satisfaction of all rights pertaining to the shares of CombiMatrix Capital Stock
represented thereby, and from and after the Effective Time, there shall be no
transfers on the stock transfer books of CombiMatrix of the shares of
CombiMatrix Capital Stock. If, after the Effective Time, certificates
representing any such shares are presented to the Surviving Corporation, they
shall be canceled and exchanged for certificates for the consideration, if any,
deliverable in respect thereof pursuant to this Agreement in accordance with the
procedures set forth in this Article I.
(c) No fractional shares of Acacia CombiMatrix Stock shall be issued
pursuant to the Merger. In lieu of the issuance of any fractional share of
Acacia CombiMatrix Stock pursuant to the Merger, cash adjustments will be paid
to holders in respect of any fractional share of Acacia CombiMatrix Stock that
would otherwise be issuable, and the amount of such cash adjustment shall be
equal to the product of such fractional amount and the average closing price of
Acacia CombiMatrix Stock for the first trading day commencing on and immediately
following the Closing Date.
(d) Upon demand by Acacia, the Exchange Agent shall deliver to Acacia
any portion of the Acacia CombiMatrix Stock made available to the Exchange Agent
pursuant to Section 1.10 hereof, and cash in lieu of fractional shares thereof,
that remains undistributed to holders of CombiMatrix Capital Stock one year
after the Effective Time. Holders of Certificates who have not complied with
this Article I prior to such demand shall thereafter look only to Acacia for
payment of any claim to such Acacia CombiMatrix Stock and dividends or
distributions, if any, in respect thereof.
(e) None of Acacia, Acquisition Company, CombiMatrix, the Exchange
Agent or any other person shall be liable to any former holder of shares of
CombiMatrix Capital Stock for any amount properly delivered to a public official
pursuant to applicable abandoned property, escheat or similar laws. Any amounts
remaining unclaimed by any holder of CombiMatrix Capital Stock immediately prior
to such time when such amounts would otherwise escheat to or become the property
of any Governmental Body (as defined in Section 2.5), shall, to the extent
permitted by applicable laws, become the property of Acacia, free and clear of
all claims or interest of any person previously entitled thereto.
A-7
(f) Each of the Surviving Corporation and Acacia shall be entitled to
deduct and withhold from the Acacia CombiMatrix Stock, and cash in lieu of
fractional shares thereof (and any dividends or distributions thereon) otherwise
payable hereunder to any person such amounts as it is required to deduct and
withhold with respect to the making of such payment under any provision of
federal, state, local or foreign income tax law. To the extent that the
Surviving Corporation or Acacia so withholds those amounts, such withheld
amounts shall be treated for all purposes of this Agreement as having been paid
to the holder of CombiMatrix Capital Stock in respect of which such deduction
and withholding was made by the Surviving Corporation or Acacia, as the case may
be.
(g) In the event that any CombiMatrix Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
Acacia, the posting by such person of a bond in such reasonable amount as Acacia
may direct as indemnity against any claim that may be made against it with
respect to such Certificate, the Exchange Agent will issue in exchange for such
lost, stolen or destroyed CombiMatrix the applicable merger consideration, cash
in lieu of fractional shares, and unpaid dividends and distributions on shares
of Acacia CombiMatrix Stock deliverable in respect thereof pursuant to this
Agreement.
(h) Subject to applicable law, Certificates surrendered for exchange by
any person constituting an "affiliate" of CombiMatrix for purposes of Rule
145(c) under the Securities Act of 1933, as amended (the "Securities Act"),
shall not be exchanged until Acacia has received a written agreement in form and
substance acceptable to Acacia (an "Affiliate Agreement") from such person
agreeing to comply with the provisions of Rule 145 under the Securities Act.
1.12 TAX CONSEQUENCES.
-----------------
It is intended by the parties hereto that the Merger shall constitute a
reorganization within the meaning of Section 368(a)(1)(A) of the Code. The
parties hereto adopt this Agreement as a "plan of reorganization" within the
meaning of Section 1.368-2(g) and 1.368-3(a) of the United States Income Tax
Regulations.
1.13 FURTHER ACTION.
--------------
If, at any time after the Effective Time, any further action is
determined by Acacia to be necessary or desirable to carry out the purposes of
this Agreement or to vest the Surviving Corporation with full right, title and
possession of and to all rights and property of Acquisition Company and
CombiMatrix, the officers and directors of the Surviving Corporation and Acacia
shall be fully authorized (in the name of Acquisition Company, in the name of
CombiMatrix and otherwise) to take such action.
ARTICLE II
----------
REPRESENTATIONS AND WARRANTIES OF ACACIA
----------------------------------------
AND ACQUISITION COMPANY
-----------------------
Each of Acacia and Acquisition Company hereby, jointly and severally,
represents and warrants to CombiMatrix, subject to such exceptions as are
specifically disclosed in the disclosure schedule supplied by Acacia to
CombiMatrix (the "Acacia Disclosure Schedule"), as of the date hereof and as of
the Effective Time as though made at the Effective Time, as follows:
2.1 ORGANIZATION OF ACACIA AND ACQUISITION COMPANY.
----------------------------------------------
Each of Acacia and Acquisition Company is a corporation duly organized,
validly existing and in good standing under Delaware law. Each of Acacia and
A-8
Acquisition Company has the corporate power to own its properties and to carry
on its business as now being conducted. Acacia is duly qualified to do business
and in good standing as a foreign corporation in each jurisdiction in which the
failure to be so qualified would have a Material Adverse Effect on Acacia or
CombiMatrix. For all purposes of this Agreement, the term "Material Adverse
Effect" means any change, event or effect that would be reasonably likely to
have a material adverse effect on the business, assets (including intangible
assets), financial condition or results of operations of the entity or business
referred to together with its subsidiaries, if any, taken as a whole; provided,
however, that any adverse change, event or effect that is caused by (i) the
announcement or pendency of the Merger shall not be taken into account in
determining whether there has been or would be a Material Adverse Effect with
respect to any party and (ii) any breach of any covenant hereunder by any action
or failure to act by Acacia or CombiMatrix shall not be taken into account in
determining whether there has been or would be a Material Adverse Effect on the
other party.
2.2 ACACIA CAPITAL STRUCTURE.
------------------------
(a) The authorized capital stock of Acacia consists of 60,000,000
shares of Acacia Common Stock, of which 19,629,376 shares were issued and
outstanding as of March 15, 2002 and 20,000,000 shares of preferred stock, par
value $0.001 per share, of which no shares were issued and outstanding as of
March 15, 2002. All outstanding shares of Acacia Capital Stock are duly
authorized, validly issued, fully paid and non-assessable and not subject to
preemptive rights created by statute, the Certificate of Incorporation or Bylaws
of Acacia or any agreement to which Acacia is a party or by which it is bound
and have been issued in compliance with federal and state securities laws. There
are no accrued or unpaid dividends with respect to any shares of Acacia Capital
Stock. Acacia has no other capital stock authorized, issued or outstanding.
(b) Except for those plans of Acacia set forth in the Acacia SEC
Documents (as defined in Section 2.6) or set forth in Section 2.2(b) of the
Acacia Disclosure Schedule (the "Acacia Stock Plans"), there is no stock option
plan or other plan providing for equity compensation maintained by Acacia. There
are no other options, warrants, calls, rights, commitments or agreements of any
character, written or oral, to which Acacia is a party or by which it is bound
obligating Acacia to issue, deliver, sell, repurchase or redeem, or cause to be
issued, delivered, sold, repurchased or redeemed, any shares of Acacia Capital
Stock or obligating Acacia to grant, extend, accelerate the vesting of, change
the price of, otherwise amend or enter into any such option, warrant, call,
right, commitment or agreement. To Acacia's knowledge, there are no voting
trusts, proxies, or other agreements or understandings with respect to the
voting stock of Acacia.
(c) The authorized capital stock of Acquisition Company ("Acquisition
Company Capital Stock") consists of 1,000 shares of common stock, of which 100
shares are issued and outstanding as of the date hereof and as of the Effective
Time. All outstanding shares of Acquisition Company Capital Stock are duly
authorized, validly issued, fully paid and non-assessable and not subject to
preemptive rights created by statute, the Certificate of Incorporation or Bylaws
of Acquisition Company or any agreement to which Acquisition Company is a party
or by which it is bound and have been issued in compliance with federal and
state securities laws. There are no declared or accrued unpaid dividends with
respect to any shares of Acquisition Company Capital Stock. Acquisition Company
has no other capital stock authorized, issued or outstanding.
2.3 AUTHORITY.
---------
Each of Acacia and Acquisition Company has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of each of Acacia and Acquisition
Company, and no further action is required on the part of Acacia or Acquisition
Company to authorize this Agreement and the transactions contemplated hereby,
subject only to the approval of the holders of Acacia Common Stock of the Acacia
Charter Amendment and the issuance of the Acacia CombiMatrix Stock in connection
with the Merger. This Agreement, the Acacia Charter Amendment and the Merger
have been approved unanimously by the Boards of Directors of Acacia and, as
A-9
applicable, Acquisition Company and by the stockholder of Acquisition Company.
This Agreement has been, and all agreements to be executed and delivered in
connection with the transactions contemplated hereby by Acacia or Acquisition
Company will be, duly executed and delivered by Acacia or Acquisition Company,
as the case may be, and, assuming the due authorization, execution and delivery
by the other parties hereto and thereto, constitute the valid and binding
obligation of Acacia or Acquisition Company, as the case may be, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by principles of public policy and subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors and to
rules of law governing specific performance, injunctive relief or other
equitable remedies.
2.4 NO CONFLICT.
-----------
Except as set forth in Section 2.4 of the Acacia Disclosure Schedule,
the execution and delivery of this Agreement do not, and all agreements to be
executed and delivered in connection with the transactions contemplated hereby
by Acacia or Acquisition Company will not, and the performance and consummation
of the transactions contemplated hereby and thereby will not, conflict with, or
result in any violation of, or default under (with or without notice or lapse of
time, or both), or give rise to a right of termination, cancellation,
modification or acceleration of any obligation or loss of any benefit under (any
such event, a "Conflict"), (i) any provision of the Certificate of Incorporation
or Bylaws of Acacia or Certificate of Incorporation or Bylaws of Acquisition
Company, (ii) any material mortgage, indenture, lease, contract or other
agreement or instrument, permit, concession, franchise or license to which
Acacia or Acquisition Company or any of their material properties or assets are
subject or (iii) any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Acacia or Acquisition Company or their respective
material properties or assets, except, in the case of clauses (ii) and (iii)
above, as would not have a Material Adverse Effect on Acacia or CombiMatrix.
2.5 CONSENTS.
--------
Except as set forth in Section 2.5 of the Acacia Disclosure Schedule,
no consent, waiver, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Body or any other party is required
by or with respect to Acacia or Acquisition Company in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby, except for (i) the filing with the Securities and Exchange
Commission (the "SEC") of the Proxy Statement of Acacia, as amended from time to
time through effectiveness (the "Proxy Statement"), pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), for the solicitation of
the approval of the stockholders of Acacia of the Acacia Charter Amendment and
the issuance of the Acacia CombiMatrix Stock in connection with the Merger, (ii)
the filing with the SEC of a Registration Statement on Form S-4 (the "Form S-4
Registration Statement") pursuant to the Securities Act with respect to those
shares of Acacia CombiMatrix Stock issuable in the Merger, in which the Proxy
Statement will be included as part of the Form S-4 Registration Statement, (iii)
such consents, waivers, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable federal and state
securities laws, (iv) the filing of the Acacia Charter Amendment and the
Certificate of Merger with the Secretary of State of the State of Delaware, (v)
the approval of the stockholders of Acacia of the Acacia Charter Amendment and
the issuance of the Acacia CombiMatrix Stock in connection with the Merger, (vi)
any other such filings or approvals as may be required under Delaware law and
(vii) such consents, waivers, approvals, orders authorizations, registrations,
declarations, and filings, which, if not obtained or made, would not,
individually or in the aggregate, have a Material Adverse Effect on Acacia or
CombiMatrix or prevent or materially delay the consummation of the transactions
contemplated hereby. For purposes of this Agreement, "Governmental Body" shall
mean any: (a) nation, state, commonwealth, province, territory, county,
municipality, district or other jurisdiction of any nature; (b) federal, state,
local, municipal, foreign or other government or (c) governmental or
quasi-governmental authority of any nature (including any governmental division,
department, agency, commission, instrumentality, official, organization, unit,
body or entity and any court or other tribunal).
A-10
2.6 SEC DOCUMENTS AND ACACIA FINANCIAL STATEMENTS.
---------------------------------------------
Acacia has furnished CombiMatrix with a true and complete copy of all
of its filings with the SEC since January 1, 2002 through the date hereof (the
"Acacia SEC Documents"). Each of the Acacia SEC Documents when filed (i)
complied as to form in all material respects with the applicable requirements of
the Exchange Act and (ii) was true and correct in all material respects and did
not omit to state any material fact required to be stated therein or necessary
to make the statements made therein, in light of the circumstances under which
they were made, not misleading, except in each case as superseded in any
subsequent filings. All financial statements (including any related schedules or
notes) of Acacia included in the Acacia SEC Documents were prepared in
accordance with United States generally accepted accounting principals,
consistently applied ("GAAP"), are consistent with each other and present fairly
in all material respects the consolidated financial condition and consolidated
operating results and cash flows of Acacia as of their respective dates and
during the periods indicated therein, subject, in the case of unaudited
statements, to normal year-end adjustments, which will not be material in
amount.
2.7 ACACIA COMBIMATRIX STOCK.
-------------------------
When issued and delivered in accordance with the terms of this
Agreement, the Acacia CombiMatrix Stock will be duly authorized, validly issued,
fully paid and nonassessable and free of any preemptive or similar right. Except
as set forth in Section 2.7 of the Acacia Disclosure Schedule, there are no
other options, warrants, calls, rights, commitments or agreements of any
character, written or oral, to which Acacia or any subsidiary of Acacia is a
party or by which it is bound obligating Acacia or any subsidiary of Acacia to
issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered,
sold, repurchased or redeemed, any shares of Acacia CombiMatrix Stock (except in
exchange for CombiMatrix Options pursuant to Section 1.7 above). Except as set
forth in Section 2.7 of the Acacia Disclosure Schedule, there are no outstanding
or authorized stock appreciation, phantom stock, profit participation or other
similar rights with respect to Acacia CombiMatrix Stock.
A-11
2.8 OWNERSHIP OF ACQUISITION COMPANY; NO PRIOR ACTIVITIES.
-----------------------------------------------------
Acquisition Company is a wholly owned, direct subsidiary of Acacia
created solely for the purpose of effecting the Merger. As of the date hereof
and the Effective Time, except for obligations or liabilities incurred in
connection with its incorporation or organization and the transactions
contemplated by this Agreement and except for this Agreement and any other
agreements or arrangements contemplated by this Agreement, Acquisition Company
has not and will not have incurred, directly or indirectly, through any
subsidiary or affiliate, any material obligations or liabilities or engaged in
any material business activities of any type or kind whatsoever or entered into
any agreements or arrangements with any person.
2.9 BROKERS' AND FINDERS' FEES.
--------------------------
Except with respect to fees to be paid to William Blair & Company,
Acacia has not incurred, nor will it incur, directly or indirectly, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement or any transaction contemplated
hereby.
2.10 ACACIA CHARTER AMENDMENT AND ACACIA COMMON STOCK POLICIES.
----------------------------------------------------------
The Board of Directors of Acacia has unanimously approved (i) the
Acacia Charter Amendment, which amendment, subject to the approval of the
holders of a majority of the shares of Acacia Common Stock outstanding as of the
record date for the Acacia Stockholders Meeting (as defined in Section 4.2) and
the filing thereof with the Secretary of State of Delaware, will become
effective immediately prior to the Effective Time and (ii) the Acacia Common
Stock Policies which will become effective as of the Effective Time.
2.11 REORGANIZATION.
--------------
As of the date hereof, Acacia does not have any knowledge of any fact
or circumstance that is reasonably likely to prevent the Merger from qualifying
as a reorganization described in section 368(a) of the Code.
ARTICLE III
-----------
REPRESENTATIONS AND WARRANTIES OF COMBIMATRIX
---------------------------------------------
CombiMatrix hereby represents and warrants to Acacia, subject to such
exceptions as are specifically disclosed in the disclosure schedule supplied by
CombiMatrix to Acacia (the "CombiMatrix Disclosure Schedule"), as of the date
hereof and as of the Effective Time as though made at the Effective Time, as
follows:
A-12
3.1 ORGANIZATION, STANDING AND POWER.
--------------------------------
CombiMatrix is a corporation duly organized, validly existing and in
good standing under Delaware law. CombiMatrix has the corporate power to own,
lease and operate its properties and to carry on its business as now being
conducted and is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the failure to be so qualified
would have a Material Adverse Effect on CombiMatrix. CombiMatrix has delivered
to Acacia a true and correct copy of the Certificate of Incorporation and Bylaws
of CombiMatrix, as amended to date. Except for CBMX International Holdings
Corporation, CombiMatrix does not have any subsidiaries.
3.2 AUTHORITY; NO CONFLICT; CONSENTS.
--------------------------------
CombiMatrix has all requisite corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement, and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of CombiMatrix, and no further action is required
on the part of CombiMatrix to authorize this Agreement or the transactions
contemplated hereby, subject only to the approval of this Agreement by
CombiMatrix's stockholders. This Agreement has been, and all agreements to be
executed and delivered in connection with the transactions contemplated hereby
by CombiMatrix will be, duly executed and delivered by CombiMatrix and, assuming
the due authorization, execution and delivery by the other parties hereto and
thereto, constitute the valid and binding obligations of CombiMatrix,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by principles of public policy and subject to the
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and to rules of law governing specific performance, injunctive relief or
other equitable remedies. The execution and delivery by CombiMatrix of this
Agreement does not, and all agreements to be executed and delivered in
connection with the transactions contemplated hereby by CombiMatrix will not,
and the performance and consummation of the transactions contemplated hereby and
thereby will not, result in any Conflict with (i) any provision of the
Certificate of Incorporation or Bylaws of CombiMatrix, (ii) any material
mortgage, indenture, lease, contract or other agreement or instrument, permit,
concession, franchise or license to which CombiMatrix or any of its properties
or assets are subject, or (iii) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to CombiMatrix or its properties or
assets, except in the case of clauses (ii) and (iii) above, as would not have a
Material Adverse Effect on CombiMatrix. Except as set forth in Section 3.2 of
CombiMatrix Disclosure Schedule, no consent, waiver, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Body or any other party is required by or with respect to CombiMatrix in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby, except for (i) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware, (ii)
such consents, waivers, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable federal and state
securities laws, (iii) the approval of this Agreement and the Merger by
CombiMatrix's stockholders, (iv) any other such filings or approvals as may be
required under Delaware law and (vi) such consents, waivers, approvals, orders
authorizations, registrations, declarations, and filings, which, if not obtained
or made, would not, individually or in the aggregate, have a Material Adverse
Effect on CombiMatrix or prevent or materially delay the consummation of the
transactions contemplated hereby.
A-13
3.3 COMBIMATRIX CAPITAL STRUCTURE.
-----------------------------
(a) The authorized capital stock of CombiMatrix consists of 30,000,000
shares of CombiMatrix Common Stock of which 18,753,223 shares are issued and
outstanding as of March 15, 2002, and 1,000,000 shares of preferred stock, par
value $.001 per share, of which no shares are issued and outstanding as of the
date hereof. All issued and outstanding shares of CombiMatrix Capital Stock have
been duly authorized, and are validly issued, fully paid and non-assessable and
not subject to preemptive rights created by statute, the Certificate of
Incorporation or Bylaws of CombiMatrix or any agreement to which CombiMatrix is
a party or by which it is bound and have been issued in compliance with federal
and state securities laws. There are no declared or accrued unpaid dividends
with respect to any shares of CombiMatrix Capital Stock. CombiMatrix has no
other capital stock authorized, issued or outstanding.
(b) Except for those option plans of CombiMatrix set forth in Section
3.3(b) of CombiMatrix Disclosure Schedule (the "CombiMatrix Option Plans"),
there is no stock option plan or other plan providing for equity compensation of
any person maintained by CombiMatrix. As of March 15, 2002, CombiMatrix has
reserved 5,500,000 shares of CombiMatrix Capital Stock for issuance to employees
and consultants pursuant to CombiMatrix Option Plans, of which options to
purchase 3,873,725 shares remain outstanding and unexercised as of the date
hereof. Warrants to purchase 38,050 shares of CombiMatrix Capital Stock have
been issued as of the date hereof, all of which remain unexercised as of the
date hereof. Section 3.3(b) of CombiMatrix Disclosure Schedule sets forth the
name of the holder of any CombiMatrix Capital Stock subject to vesting, the
number of shares of CombiMatrix Capital Stock subject to vesting and the vesting
schedule for such CombiMatrix Capital Stock, including the extent vested as of
the most recent practicable date, and sets forth the name of the holder of any
CombiMatrix Options, the number of shares of CombiMatrix Capital Stock subject
to such CombiMatrix Options and the vesting schedule for such CombiMatrix
Options, including the extent vested to date. Except as set forth in Section
3.3(b) of CombiMatrix Disclosure Schedule, there is no outstanding CombiMatrix
Capital Stock which is subject to vesting or CombiMatrix Options, and there are
no options, warrants, calls, rights, commitments or agreements of any character,
written or oral, to which CombiMatrix is a party or by which it is bound
obligating CombiMatrix to issue, deliver, sell, repurchase or redeem, or cause
to be issued, delivered, sold, repurchased or redeemed, any shares of
CombiMatrix Capital Stock, or obligating CombiMatrix to grant, extend,
accelerate the vesting of, change the price of, otherwise amend or enter into
any such option, warrant, call, right, commitment or agreement. The consummation
of the Merger and the transactions contemplated thereby will not result in the
acceleration of the vesting of any outstanding CombiMatrix Option under any
CombiMatrix Option Plan. There are no outstanding or authorized stock
appreciation, phantom stock, profit participation, or other similar rights with
respect to CombiMatrix. Except as contemplated by this Agreement and the
Shareholder Agreement dated April 19, 1996, by and between Acacia and Donald
Montgomery, which agreement will terminate on the closing of the Merger, to
CombiMatrix's knowledge, there are no voting trusts, proxies, or other
agreements or understandings with respect to the voting stock of CombiMatrix.
A-14
3.4 COMBIMATRIX FINANCIAL STATEMENTS.
--------------------------------
The CombiMatrix Financials (as defined below) were prepared in
accordance with GAAP, are consistent with each other, and fairly present in all
material respects the financial condition and operating results and cash flows
of CombiMatrix as of their respective dates and during the periods indicated
therein, subject, in the case of unaudited financial statements, to normal
year-end adjustments, which will not be material in amount. CombiMatrix's
audited consolidated balance sheet as of December 31, 2001 and its audited
consolidated statements of operations and cash flows for the period then ended
are referred to herein as the "CombiMatrix Financials."
3.5 NO UNDISCLOSED LIABILITIES.
---------------------------
Except (i) as reflected in the CombiMatrix Financials, (ii) as set
forth in Section 3.5 of the CombiMatrix Disclosure Schedule, or (iii) with
respect to any matter arising in the ordinary course of business consistent with
past practices since December 31, 2001, CombiMatrix has no liability,
indebtedness, obligation, expense, claim, deficiency, guarantee or endorsement
of any type, including any related to Taxes, whether accrued, absolute,
contingent, matured, unmatured or other, which individually or in the aggregate
are required to be reflected or reserved against on the balance sheet of
CombiMatrix in accordance with GAAP, or that, individually or in the aggregate,
would have a Material Adverse Effect on CombiMatrix. In addition, since December
31, 2001, there has not been any declaration, setting aside or payment of a
dividend or other distribution with respect to CombiMatrix Capital Stock or any
material change in accounting methods or practices by CombiMatrix.
3.6 NO CHANGES.
----------
Since the date of CombiMatrix Financials, except as otherwise expressly
contemplated by this Agreement, CombiMatrix has conducted its business in the
ordinary course consistent with past practice and there has not been any action,
event, occurrence, development, change in method of doing business or state of
circumstances or facts that, individually or in the aggregate, has had a
Material Adverse Effect on CombiMatrix.
3.7 RESTRICTIONS ON BUSINESS ACTIVITIES.
------------------------------------
Except as described in Section 3.7 of the CombiMatrix Disclosure
Schedule as of the date hereof, there is no agreement (non-compete or
otherwise), commitment, judgment, injunction, order or decree to which
CombiMatrix is a party or otherwise binding upon CombiMatrix which has the
effect of prohibiting any business practice of CombiMatrix, any acquisition or
property (tangible or intangible) by CombiMatrix or the conduct of the business
by CombiMatrix which would have a Material Adverse Effect on CombiMatrix.
Without limiting the foregoing, as of the date hereof, CombiMatrix has not
entered into any agreement under which CombiMatrix is restricted from selling,
licensing or otherwise distributing any of its material technology or products
to or providing services to or selling advertising to, customers or potential
customers or any class of customers, in any geographic area, during any period
of time or in any market which would have a Material Adverse Effect on
CombiMatrix.
A-15
3.8 BROKERS' AND FINDERS' FEES.
--------------------------
Except with respect to a fee of $300,000 to be paid to A.G. Edwards,
CombiMatrix has not incurred, nor will it incur, directly or indirectly, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement or any transaction contemplated
hereby.
3.9 REORGANIZATION.
--------------
As of the date hereof, CombiMatrix does not have any knowledge of any
fact or circumstance that is reasonably likely to prevent the Merger from
qualifying as a reorganization described in section 368(a) of the Code.
ARTICLE IV
----------
COVENANTS
---------
4.1 REGISTRATION STATEMENT; PROXY STATEMENT; PROSPECTUS/INFORMATION
----------------------------------------------------------------
STATEMENT.
---------
(a) As soon as practicable after the execution of this Agreement,
Acacia shall, with the assistance and cooperation of CombiMatrix, prepare and
cause to be filed with the SEC the Form S-4 Registration Statement. The
Registration Statement shall include a Proxy Statement to be used for the
purpose of soliciting Acacia stockholder approval of the Merger and the issuance
of the Acacia CombiMatrix Stock and the Acacia Technologies Stock, and a
Prospectus/Information statement to be used for the purpose of offering the
Acacia CombiMatrix Stock to CombiMatrix stockholders. The Acacia Common Stock
Policies shall be set forth and described in detail in the Form S-4 Registration
Statement. Each of Acacia and CombiMatrix shall use all reasonable efforts to
cause the Form S-4 Registration Statement to comply with applicable law and the
rules and regulations promulgated by the SEC, to respond promptly to any
comments of the SEC or its staff and to have the Form S-4 Registration Statement
declared effective under the Securities Act as promptly as practicable after it
is filed with the SEC, and Acacia and CombiMatrix shall use all reasonable
efforts to cause the Proxy Statement and Prospectus/Information Statement to be
mailed to their respective stockholders as promptly as practicable after the
Form S-4 Registration Statement is declared effective under the Securities Act.
Each of the parties hereto shall promptly furnish to the other party all
information concerning itself, its stockholders and its affiliates that may be
required or reasonably requested in connection with any action contemplated by
this Section 4.1. If any event relating to Acacia or CombiMatrix occurs, or if
Acacia or CombiMatrix becomes aware of any information, that should be disclosed
in an amendment or supplement to the Form S-4 Registration Statement, then
Acacia or CombiMatrix, as applicable, shall inform the other thereof and shall
cooperate with each other in filing such amendment or supplement with the SEC
and, if appropriate, in mailing such amendment or supplement to the stockholders
of Acacia and CombiMatrix.
(b) Prior to the Effective Time, Acacia shall use reasonable efforts to
obtain all regulatory or other approvals needed to ensure that the Acacia
CombiMatrix Stock to be issued in the Merger: (i) will be registered or
qualified under the securities law of every jurisdiction of the United States in
which any registered holder of CombiMatrix Common Stock who is receiving shares
of registered Acacia CombiMatrix Stock has an address of record or be exempt
from such registration and (ii) will be approved for quotation at the Effective
Time on the NASDAQ National Market, subject to official notice of issuance;
provided, however, that Acacia shall not, pursuant to the foregoing, be required
(A) to qualify to do business as a foreign corporation in any jurisdiction in
which it is not now qualified or (B) to file a general consent to service of
process in any jurisdiction with respect to matters unrelated to the issuance of
Acacia CombiMatrix Stock pursuant hereto.
A-16
(c) Each of Acacia and CombiMatrix (in respect of the information
respectively supplied by it) agrees that: (i) none of the information to be
supplied by it or its affiliates for inclusion in the Form S-4 Registration
Statement will, at the time the Form S-4 Registration Statement becomes
effective under the Securities Act, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading; and (ii) none of the information to
be supplied by it or its affiliates for inclusion in the Proxy Statement will,
at the time the Proxy Statement is mailed to the stockholders of Acacia or as of
the Effective Time, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
4.2 STOCKHOLDER MEETINGS.
--------------------
(a) Acacia shall promptly after the date hereof take all action
necessary in accordance with applicable law and its Certificate of Incorporation
and Bylaws to hold and convene a meeting of Acacia's stockholders (the "Acacia
Stockholders Meeting") as soon as practicable following the date the
Registration Statement is declared effective by the SEC. Subject to Section
4.1(a), Acacia shall take all other action necessary or advisable to secure the
vote or consent of its stockholders required by applicable law to effect the
issuance of shares of Acacia CombiMatrix Stock in the Merger and the Acacia
Charter Amendment (the "Required Acacia Stockholder Vote").
(b) CombiMatrix shall promptly after the date hereof take all action
necessary in accordance with applicable law and its Certificate of Incorporation
and Bylaws to hold and convene a meeting of CombiMatrix's stockholders (the
"CombiMatrix Stockholders Meeting") as soon as practicable following the date
the Registration Statement is declared effective by the SEC. Subject to the
provisions of Section 4.1(a), CombiMatrix shall take all other action necessary
or advisable to secure the vote or consent of its stockholders required by
applicable law and contract to effect the Merger and the transactions
contemplated hereby (the "Required CombiMatrix Stockholder Vote").
4.3 COOPERATION; ACCESS TO INFORMATION.
----------------------------------
Upon reasonable prior notice, CombiMatrix shall afford Acacia and its
accountants, counsel and other representatives, reasonable access during normal
business hours during the period prior to the Effective Time to all of its
properties, books, contracts, commitments and records, all other information
concerning its business, properties and personnel (subject to restrictions
imposed by applicable law) as Acacia may reasonably request and all its key
employees. Upon reasonable prior notice, CombiMatrix agrees to provide Acacia
and its accountants, counsel and other representatives copies of internal
financial statements promptly upon request. No information or knowledge obtained
in any investigation pursuant to this Section 4.3 shall affect or be deemed to
modify any representation or warranty contained herein or the conditions to the
obligations of the parties to consummate the Merger.
A-17
4.4 CONDUCT OF BUSINESS OF COMBIMATRIX.
-----------------------------------
Except as otherwise contemplated by this Agreement and the other
agreements by and between Acacia and CombiMatrix and the several transactions
contemplated hereby and thereby, during the period from the date of this
Agreement and continuing until the earlier of the termination of this Agreement
or the Effective Time, CombiMatrix agrees (except to the extent that Acacia
shall otherwise have previously consented in writing) to carry on CombiMatrix's
business in the usual, regular and ordinary course in substantially the same
manner as heretofore conducted, to pay or perform other obligations when due
(unless such obligations are the subject of a dispute that CombiMatrix is
actively seeking to resolve) and, to the extent consistent with such businesses,
use their reasonable efforts consistent with past practice and policies to
preserve intact CombiMatrix's present business organization, keep available the
services of CombiMatrix's present officers and key employees and preserve
CombiMatrix's relationship with customers, suppliers, distributors, licensors,
licensees, and others having business dealings with it, all with the goal of
preserving CombiMatrix's goodwill and ongoing businesses at the Effective Time,
and to refrain from taking such action that would cause any of the conditions
contained in Article V hereof not to be satisfied; provided, however, that
CombiMatrix shall not be deemed in breach of this Section 4.4 because of
attrition, if any, among CombiMatrix's employees which may occur as a result of
the transactions contemplated hereby, so long as CombiMatrix uses all reasonable
efforts to retain such employees at CombiMatrix.
4.5 EXPENSES.
---------
Whether or not the Merger is consummated, all fees and expenses
incurred in connection with the Merger, including, without limitation, all
legal, accounting, financial advisory, consulting and all other fees and
expenses of third parties incurred by a party in connection with the negotiation
and effectuation of the terms and conditions of this Agreement and the
transactions contemplated hereby, shall be the obligation of the respective
party incurring such fees and expenses.
4.6 PUBLIC DISCLOSURE.
-----------------
Without the prior written consent of Acacia, CombiMatrix shall not
issue any press release or otherwise making any public statements with respect
to this Agreement or the Merger or the transactions contemplated hereby or
thereby, except as may be required by law.
4.7 CONSENTS.
---------
CombiMatrix and Acacia shall use commercially reasonable efforts to
obtain the consents, waivers, assignments and approvals under any of their
respective material contracts as may be required in connection with the Merger
so as to preserve all rights of, and benefits to, CombiMatrix and Acacia
thereunder.
A-18
4.8 REASONABLE EFFORTS.
------------------
Subject to the terms and conditions provided in this Agreement, each of
the parties hereto shall use commercially reasonable efforts to take promptly,
or cause to be taken, all actions, and to do promptly, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated hereby, to obtain
all necessary waivers, consents, tax opinions and approvals and to effect all
necessary registrations and filings and to remove any injunctions or other
impediments or delays, legal or otherwise, in order to consummate and make
effective the transactions contemplated by this Agreement for the purpose of
securing to the parties hereto the benefits contemplated by this Agreement.
Notwithstanding the foregoing, none of Acacia, CombiMatrix or any of their
respective subsidiaries shall be required to agree to any divestiture or hold
separate or similar transaction by it or any of its subsidiaries or affiliates
of shares of capital stock or of any business, assets or property of any of them
or any of their subsidiaries or affiliates, or the imposition of any material
limitation on the ability of any of them to conduct their businesses or to own
or exercise control of such assets, properties and stock.
4.9 NOTIFICATION OF CERTAIN MATTERS.
-------------------------------
Each of CombiMatrix and Acacia shall give prompt notice to the other
party of (i) the occurrence or non-occurrence of any event, the occurrence or
non-occurrence of which is likely to cause any representation or warranty of any
party contained in this Agreement to be untrue or inaccurate at or prior to the
Effective Time such that the conditions set forth in Section 5.2(b) or 5.3(b)
would not be satisfied and (ii) any failure of Acacia or CombiMatrix, as the
case may be, to comply with or satisfy any covenant, condition or agreement to
be complied with or satisfied by it hereunder which is likely to cause any
condition set in Article V hereof not to be satisfied; provided, however, that
the delivery of any notice pursuant to this Section 4.9 shall not limit or
otherwise affect any remedies available to the party receiving such notice and
no disclosure by Acacia or CombiMatrix pursuant to this Section 4.9 shall be
deemed to amend or supplement the Acacia Disclosure Schedule or CombiMatrix
Disclosure Schedule, respectively, or prevent or cure any misrepresentations,
breach of warranty or breach of covenant.
4.10 ADDITIONAL DOCUMENTS AND FURTHER ASSURANCES.
-------------------------------------------
Each party hereto, at the request of another party hereto, shall
execute and deliver such other instruments and do and perform such other acts
and things as may be necessary or desirable for effecting completely the
consummation of this Agreement, the Merger and the transactions contemplated
hereby.
4.11 ASSUMPTION OF COMBIMATRIX OPTIONS; FORM S-8.
--------------------------------------------
(a) At the Effective Time, Acacia shall assume all outstanding
CombiMatrix Options under CombiMatrix Option Plans and agrees to file, no later
than five days after the Closing, a registration statement on Form S-8 covering
the shares of Acacia CombiMatrix Stock issuable pursuant to outstanding
CombiMatrix Options granted under CombiMatrix Option Plans. CombiMatrix shall
cooperate with and assist Acacia in the preparation of such registration
statement.
A-19
4.12 [INTENTIONALLY OMITTED].
------------------------
4.13 OFFICERS' AND DIRECTORS' INDEMNIFICATION.
----------------------------------------
(a) From and after the Effective Time, Acacia will indemnify each
officer and director of CombiMatrix as of the Effective Time (an "Indemnified
Party") to the fullest extent permitted under applicable law, the Certificate of
Incorporation and Bylaws of CombiMatrix and any agreement between the
Indemnified Party and CombiMatrix, in each case as in effect as of the date
hereof with respect to any claim, liability, loss, damage, judgment, fine,
penalty, amount paid in settlement or compromise, cost or expense based in whole
or in part on, or arising in whole or in part out of, the fact that the
Indemnified Party was a director or officer of CombiMatrix at or prior to the
Effective Time. The rights under this Section 4.13 are contingent upon the
occurrence of, and will survive consummation of, the transactions contemplated
hereby and are expressly intended to benefit each Indemnified Party.
(b) Without limiting the provisions of paragraph (a), after the
Effective Time Acacia will indemnify and hold harmless each Indemnified Party
against any costs or expenses (including reasonable attorneys' fees), judgments,
fines, losses, claims, damages, liabilities and amounts paid in settlement in
connection with any claim, action, suit, proceeding or investigation, whether
civil, criminal, administrative or investigative, to the extent arising out of
or pertaining to any action or omission in his or her capacity as a director or
officer of CombiMatrix or any of CombiMatrix Subsidiaries arising out of or
pertaining to the transactions contemplated by this Agreement (except in respect
of actions or omissions that constitute bad faith, willful misconduct or a
breach of duty of loyalty) for a period of three years after the Effective Time;
provided, however, that if, at any time prior to the third anniversary of the
Effective Time, any Indemnified Party delivers to Acacia a written notice
asserting a claim for indemnification under this Section 4.13, then the claim
asserted in such notice shall survive the third anniversary of the Effective
Time until such time as such claim is fully and finally resolved. In the event
of any such claim, action, suit, proceeding or investigation Acacia will pay the
reasonable fees and expenses of counsel for the Indemnified Party promptly after
statements therefor are received (provided that in the event that any
Indemnified Party is not entitled to indemnification hereunder, any amounts
advanced on his or her behalf shall be remitted to Acacia); provided, however,
that Acacia will not be liable for any settlement effected without its express
written consent. The Indemnified Parties as a group may retain only one law firm
(in addition to local counsel) to represent them with respect to any single
action unless there is, under applicable standards of professional conduct, a
conflict on any significant issue between the positions of any two or more
Indemnified Parties.
(c) Without limiting any of the obligations of Acacia set forth
elsewhere in this Section 4.13, Acacia shall maintain in effect, during the
three-year period commencing as of the Effective Time, a policy of directors'
and officers' liability insurance for the benefit of each of the Indemnified
Parties providing coverage and containing terms no less advantageous to the
Indemnified Parties than the coverage and terms of CombiMatrix's existing policy
of directors' and officers' liability insurance; provided, however, that Acacia
shall not be required to pay a per annum premium in excess of 150% of the per
annum premium that CombiMatrix currently pays for its existing policy of
directors' and officers' liability insurance (it being understood that, if the
premium required to be paid by Acacia for such policy would exceed such 150%
amount, then the coverage of such policy shall be reduced to the maximum amount
that be obtained for a per annum premium in such 150% amount).
A-20
(d) This Section 4.13 will survive the consummation of the Merger, is
intended to benefit and may be enforced by each of the Indemnified Parties
following the Effective Time, and will be binding on all successors and assigns
of Acacia.
4.14 CERTAIN TAX MATTERS.
-------------------
(a) CERTAIN TAX OPINIONS.
--------------------
(i) [Intentionally Omitted].
(ii) Acacia and CombiMatrix each agree to furnish
PricewaterhouseCoopers LLP ("PWC") a certificate dated as of the
Closing Date signed by an officer of Acacia and CombiMatrix, as the
case may be, having authority to sign such certificate, which
certificate shall contain such customary representations as reasonably
requested by PWC (the "Closing Tax Certificates") in connection with
the issuance of the PWC Closing Tax Opinions (as defined in Section
5.1(e) of this Agreement).
(iii) Acacia and CombiMatrix shall cooperate in causing the
Merger to qualify as a tax-free reorganization under Code Section
368(a), including the reporting of the Merger as qualifying as such a
reorganization on all relevant federal, state, local and foreign tax
returns. Acacia and CombiMatrix covenant and agree that they each shall
not take any position or action inconsistent with the Closing Tax
Certificates. Acacia and CombiMatrix covenant and agree to (and to
cause any affiliate or successor to their assets or business to)
vigorously and in good faith defend all challenges to the tax-free
status of the Merger.
(iv) It is understood and agreed that PWC, shall issue the PWC
Closing Tax Opinions to the effect that the Merger will qualify as a
reorganization under Code Section 368(a) and related matters for
description, and inclusion as an exhibit, in the Form S-4 Registration
Statement and the Proxy Statement.
(b) TAX COVENANTS.
-------------
Acacia and CombiMatrix covenant to each other that none of Acacia,
CombiMatrix or any of their respective subsidiaries has taken (or will take) any
action, including, without limitation, any action inconsistent with any
representation, warranty, or covenant made or to be made in connection with the
opinions to be delivered pursuant to Section 5.1(e) hereof. In addition, Acacia
and CombiMatrix each agree that in the event such party becomes aware of any
such fact or circumstance that is reasonably likely to prevent the Merger from
qualifying as a reorganization described in section 368(a) of the Code, it will
promptly notify the other party in writing.
A-21
4.15 EXEMPTION FROM LIABILITY UNDER SECTION 16(b).
--------------------------------------------
Assuming that CombiMatrix delivers to Acacia the Section 16 Information
(as defined below) reasonably in advance of the Effective Time, the Board of
Directors of Acacia, or a committee of Non-Employee Directors thereof (as such
term is defined for purposes of Rule 16b-3(d) under the Exchange Act), shall
reasonably promptly thereafter and in any event prior to the Effective Time
adopt a resolution providing that the receipt by CombiMatrix Insiders (as
defined below) of Acacia CombiMatrix Stock in the Merger, and of options to
purchase Acacia CombiMatrix Stock upon conversion of options to purchase shares
of CombiMatrix Common Stock, in each case pursuant to the transactions
contemplated hereby and to the extent such securities are listed in the Section
16 Information provided by CombiMatrix to Acacia prior to the Effective Time,
are intended to be exempt from liability pursuant to Section 16(b) under the
Exchange Act such that any such receipt shall be so exempt. "Section 16
Information" shall mean information accurate in all respects regarding
CombiMatrix Insiders, the number of shares of Acacia Common Stock held by each
such CombiMatrix Insider and expected to be exchanged for Acacia CombiMatrix
Stock in the Merger, and the number and description of the options to purchase
shares of CombiMatrix Common Stock held by each such CombiMatrix Insider and
expected to be converted into options to purchase shares of Acacia CombiMatrix
Stock in connection with the Merger. "CombiMatrix Insiders" shall mean those
officers and directors of CombiMatrix who will be subject to the reporting
requirements of Section 16(a) of the Exchange Act as a result of their service
as a director or executive officer of Acacia after the Effective Time and who
are listed in the Section 16 Information.
4.16 AGREEMENTS FROM CERTAIN AFFILIATES OF COMBIMATRIX.
-------------------------------------------------
No later fifteen (15) days after the date hereof, CombiMatrix shall
provide to Acacia a list of those persons who are, in CombiMatrix's reasonable
judgment, affiliates of CombiMatrix ("Affiliates") for purposes of Rule 145(c)
under the Securities Act. CombiMatrix shall provide Acacia such information and
documents as Acacia shall reasonably request for purposes of reviewing such list
and shall notify Acacia in writing regarding any change in the identity of its
Affiliates prior to the Closing Date. In order to help ensure that the issuance
of and any resale of Acacia CombiMatrix Stock will comply with the Securities
Act and that the Merger will be treated as a tax-free reorganization,
CombiMatrix shall use its reasonable best efforts to deliver or cause to be
delivered to Acacia, as soon as practicable and in any case prior to the mailing
of the Proxy Statement (or, in the case of any person who becomes an Affiliate
after such date, as soon as practicable after such person becomes an Affiliate),
an Affiliate Agreement executed by each of its Affiliates. Acacia shall be
entitled to place appropriate legends on the certificates evidencing any shares
of Acacia CombiMatrix Stock to be issued to Affiliates of CombiMatrix, and to
issue appropriate stop transfer instructions to the transfer agent for Acacia
CombiMatrix Stock, setting forth restrictions on transfer consistent with the
terms of the Affiliate Agreement.
A-22
ARTICLE V
---------
CONDITIONS TO THE MERGER
------------------------
5.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY.
---------------------------------------
The respective obligations of each party to this Agreement to
consummate and effect this Agreement and the transactions contemplated hereby
shall be subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY.
----------------------------------------
No temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the Merger shall be in
effect, nor shall any proceeding brought by an administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, seeking any of the foregoing be pending; nor shall there be any action
taken, or any statute, rule, regulation, injunction order or decree enacted,
entered, enforced, promulgated, issued or deemed applicable to the Merger which
makes the consummation of the Merger illegal.
(b) STOCKHOLDER APPROVALS.
---------------------
This Agreement shall have been approved and adopted, and the Merger
shall have been duly approved, by the requisite vote under applicable law, of
the stockholders of Acacia and CombiMatrix and the Acacia Charter Amendment
shall have been approved by the requisite vote under applicable law, of the
stockholders of Acacia, and the Acacia Charter Amendment shall have been filed
with the Secretary of State of Delaware.
(c) LISTING.
-------
The shares of Acacia CombiMatrix Stock and Acacia Technologies Stock to
be issued in the Merger to the stockholders of CombiMatrix shall have been
approved for listing, subject to official notice of issuance, on the NASDAQ
National Market.
(d) EFFECTIVENESS OF REGISTRATION STATEMENT.
---------------------------------------
The Form S-4 Registration Statement shall have become effective in
accordance with the provisions of the Securities Act, and no stop order shall
have been issued by the SEC with respect thereto, and no similar proceeding in
respect of the Proxy Statement shall have been initiated or threatened in
writing by the SEC.
(e) TAX OPINIONS.
------------
Each of Acacia and CombiMatrix shall have received an opinion of
PricewaterhouseCoopers LLP (the "PWC Closing Tax Opinions"), based upon the
Closing Tax Certificates, which opinions shall be satisfactory to Acacia and
CombiMatrix in their reasonable discretion, to the effect that the Merger will
be treated as a reorganization described in Section 368(a) of the Code, and
A-23
Acacia shall not recognize gain or loss by reason of the issuance of the Acacia
CombiMatrix Stock, under the law in effect as of the Closing Date. The parties
to this Agreement agree to make such other reasonable representations as
requested by PricewaterhouseCoopers LLP for the purpose of rendering any such
opinion.
5.2 CONDITIONS TO OBLIGATIONS OF ACACIA.
-----------------------------------
The obligations of Acacia to consummate and effect this Agreement and
the transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Effective Time of each of the following conditions, any of which
may be waived, in writing, exclusively by Acacia:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS.
-----------------------------------------
The representations and warranties of CombiMatrix in this Agreement
shall be true and correct in all respects on and as of the Effective Time as
though such representations and warranties were made on and as of such time,
except for those representations and warranties which address matters only as of
a particular date (which shall be true and correct only as of such date) and
such inaccuracies as individually or in the aggregate would not have a Material
Adverse Effect on CombiMatrix, and CombiMatrix shall have performed and complied
in all material respects with all covenants and obligations of this Agreement
required to be performed and complied with by CombiMatrix as of the Effective
Time.
(b) NO MATERIAL ADVERSE EFFECT.
--------------------------
No Material Adverse Effect with respect to CombiMatrix shall have
occurred since the date of this Agreement and no events or circumstances shall
have occurred since the date hereof that would have a Material Adverse Effect on
CombiMatrix (except for any Material Adverse Effect that shall have been cured
without such cure resulting or reasonably being expected to result in a Material
Adverse Effect on CombiMatrix).
(c) MATERIAL ADVERSE TAX CONSEQUENCE.
--------------------------------
There shall not have been a Change of Law (as defined below) that, in
the good faith judgment of Acacia after consultation with its external advisors,
could, if adopted, be reasonably likely to have a material adverse tax
consequence to Acacia, CombiMatrix and/or their respective shareholders, arising
from the transactions contemplated by this Agreement. For purposes of this
Agreement, a "Change of Law" means (i) a published Treasury Regulation
(including a proposed or final regulation, Revenue Ruling, Revenue Procedure, or
notice of intention to issue a regulation), (ii) administrative or judicial
pronouncement (including a private letter ruling, case, technical advice
memorandum, or other form of notice), (iii) proposal made by or on behalf of any
United States Congressional tax writing committee (or any chair thereof), or
(iv) legislation introduced in either house of United States Congress (including
any committee thereof).
(d) THIRD PARTY CONSENTS.
--------------------
Any and all consents, waivers, assignments and approvals listed in
Section 3.2 of CombiMatrix Disclosure Schedule (other than those whose failure
to obtain, individually or in the aggregate, would not have a Material Adverse
Effect on CombiMatrix) shall have been obtained.
A-24
(e) CERTIFICATE OF COMBIMATRIX.
--------------------------
Acacia shall have been provided with a certificate executed on behalf
of CombiMatrix by its President and Chief Executive Officer, its Chief Operating
Officer or its Chief Financial Officer to the effect that, as of the Effective
Time, the conditions set forth in Sections 5.2(a) and (b) and 5.3(c) have been
met.
(f) DISSENTING SHARES.
-----------------
No more than one percent (1%) of the shares of CombiMatrix Common Stock
shall be Dissenting Shares.
(g) MARKET STAND-OFF AGREEMENTS.
---------------------------
Each director, officer and employee of CombiMatrix who also holds
shares of CombiMatrix Capital Stock or a CombiMatrix Option shall have executed
a Market Standoff Agreement in form and substance reasonably satisfactory to
Acacia pursuant to which each such stockholder shall have agreed not to sell any
shares of Acacia CombiMatrix Stock received in the Merger for a period of six
(6) months after the Effective Time, and each such Market Standoff Agreement
shall be in full force and effect.
(h) [INTENTIONALLY OMITTED].
-----------------------
(i) NO CHANGE IN CONTROL UNDER SEVERANCE PLAN.
-----------------------------------------
Acacia shall have received such documents, confirmations or agreements
from executive officers, and other evidence as are reasonably acceptable to
Acacia that the Merger and the transactions contemplated thereby will not
constitute a "Change in Control" for purposes of the CombiMatrix Executive
Severance Plan.
5.3 CONDITIONS TO THE OBLIGATIONS OF COMBIMATRIX.
--------------------------------------------
The obligations of CombiMatrix to consummate and effect this Agreement
and the transactions contemplated hereby shall be subject to the satisfaction at
or prior to the Effective Time of each of the following conditions, any of which
may be waived, in writing, exclusively by CombiMatrix:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS.
-----------------------------------------
The representations and warranties of Acacia in this Agreement shall be
true and correct in all respects on and as of the Effective Time as though such
representations and warranties were made on and as of the Effective Time, except
for those representations and warranties which address matters only as of a
particular date (which shall be true and correct only as of such date) and such
A-25
inaccuracies as individually or in the aggregate would not have a Material
Adverse Effect on Acacia or CombiMatrix, and Acacia shall have performed and
complied in all material respects with all covenants and obligations of this
Agreement required to be performed and complied with by them as of the Effective
Time.
(b) NO MATERIAL ADVERSE EFFECT.
--------------------------
No Material Adverse Effect with respect to the CombiMatrix shall have
occurred since the date of this Agreement and no events or circumstances shall
have occurred since the date hereof that would have a Material Adverse Effect on
the CombiMatrix (except for any Material Adverse Effect that shall have been
cured without such cure resulting or reasonably being expected to result in a
Material Adverse Effect on CombiMatrix).
(c) MATERIAL ADVERSE TAX CONSEQUENCE.
--------------------------------
There shall not have been a Change of Law that, in the good faith
judgment of CombiMatrix after consultation with its external advisors, could, if
adopted, be reasonably likely to have a material adverse tax consequence to
CombiMatrix, Acacia and/or their respective shareholders, arising from the
transactions contemplated by this Agreement.
(d) THIRD PARTY CONSENTS.
--------------------
Any and all consents, waivers, assignments and approvals listed in
Section 2.5 of the Acacia Disclosure Schedule (other than those whose failure to
obtain, individually or in the aggregate, would not have a Material Adverse
Effect on CombiMatrix's business) shall have been obtained.
(e) CERTIFICATE OF ACACIA.
---------------------
CombiMatrix shall have been provided with a certificate executed on
behalf of Acacia by officers with titles of Senior Vice President or above to
the effect that, as of the Effective Time, the conditions set forth in Sections
5.2(c) and 5.3(a) and (b) have been met.
(f) LEGAL OPINION.
-------------
CombiMatrix shall have received an opinion of Allen Matkins Leck Gamble
& Mallory LLP, dated the Closing Date, as to the due and valid authorization and
issuance of the Acacia CombiMatrix Stock and otherwise in form and substance
customary for transactions of this nature.
(g) FAIRNESS OPINION; RECOMMENDATION OF SPECIAL COMMITTEE.
-----------------------------------------------------
CombiMatrix shall have received an opinion of an investment banker of
national reputation (which may be A.G. Edwards) as to the fairness of the
Merger, including the consideration to be paid in connection therewith, to
CombiMatrix and its stockholders from a financial point of view and the Special
Committee of the Board of Directors of CombiMatrix shall have recommended
approval of the Merger.
A-26
ARTICLE VI
----------
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
6.1 TERMINATION.
-----------
This Agreement may be terminated and the Merger abandoned at any time
prior to the Effective Time:
(a) by mutual consent of Acacia and CombiMatrix;
(b) by CombiMatrix or Acacia if: (i) the Effective Time has
not occurred by December 31, 2002; provided, however, that the right to
terminate this Agreement under this Section 6.1(b)(i) shall not be available to
any party whose action or failure to act has been a principal cause of or
resulted in the failure of the Merger to occur on or before such date and such
action or failure to act constitutes a material breach of this Agreement;
provided, further, that any party terminating this Agreement pursuant to this
Section 6.1(b)(i) shall provide the other party with written notice of such
termination, which notice shall set forth those conditions to such party's
obligations hereunder that have not been satisfied as of such date; (ii) there
shall be a final nonappealable order of a federal or state court in effect
preventing consummation of the Merger; or (iii) there shall be any statute,
rule, regulation, injunction, order or decree enacted, entered, enforced,
promulgated, issued or deemed applicable to the Merger which makes consummation
of the Merger illegal.
(c) by CombiMatrix or Acacia if (i) the CombiMatrix
Stockholders Meeting (including any adjournments or postponements thereof) shall
have been held and completed and CombiMatrix's stockholders shall have taken a
final vote on the matters set forth in Section 4.2 hereof, and such matters
shall not have been approved at such meeting by the Required CombiMatrix
Stockholder Vote (provided, further, that the right to terminate this Agreement
under this Section 6.1(c) shall not be available to CombiMatrix or Acacia where
the failure to obtain the Required CombiMatrix Stockholder Vote shall have been
caused by the action or failure to act of such party and such action or failure
to act constitutes a material breach by such party of this Agreement) or (ii)
the Acacia Stockholders Meeting (including any adjournments or postponements
thereof) shall have been held and completed and Acacia's stockholders shall have
taken a final vote on the matters set forth in Section 4.2 hereof, and such
matters shall not have been approved at such meeting by the Required Acacia
Stockholder Vote (provided, further, that the right to terminate this Agreement
under this Section 6.1(c) shall not be available to Acacia or CombiMatrix where
the failure to obtain the required Acacia Stockholder Vote shall have been
caused by the action or failure to act of such party and such action or failure
to act constitutes a material breach by such party of this Agreement);
(d) by CombiMatrix if it is not in material breach of its
obligations under this Agreement and there has been a breach of any
representation, warranty or covenant contained in this Agreement on the part of
Acacia, or if any representation or warranty on the part of Acacia shall have
become untrue (except for those representations and warranties which address
A-27
matters only as of a particular date, which shall be true and correct only as of
such date), and such inaccuracy in such representation or warranty or breach
shall not have been cured within thirty (30) calendar days after written notice
to Acacia, except for such breaches and inaccuracies as individually or in the
aggregate would not have a Material Adverse Effect on CombiMatrix; provided,
however, that no cure period shall be required for a breach which by its nature
cannot be cured;
(e) by Acacia if it is not in material breach of its
obligations under this Agreement and there has been a breach of any
representation, warranty or covenant contained in this Agreement on the part of
CombiMatrix, or if any representation or warranty of CombiMatrix shall have
become untrue (except for those representations and warranties which address
matters only as of a particular date, which shall be true and correct only as of
such date) and such inaccuracy in such representations and warranties or such
breach shall not have been cured within thirty (30) calendar days after written
notice to CombiMatrix, except for such breaches and inaccuracies as individually
or in the aggregate would not have a Material Adverse Effect on Acacia;
provided, however, that no cure period shall be required for a breach which by
its nature cannot be cured;
6.2 EFFECT OF TERMINATION.
---------------------
In the event of termination of this Agreement as provided in Section
6.1, this Agreement shall forthwith become void and there shall be no liability
or obligation on the part of Acacia, Acquisition Company or CombiMatrix, or
their respective officers, directors or stockholders, provided that each party
shall remain liable for any willful breaches of such party's covenants hereunder
or intentional or willful breaches of such party's representations and
warranties hereunder prior to its termination; provided, further, that the
provisions of Section 4.5 of this Agreement shall remain in full force and
effect and survive any termination of this Agreement.
6.3 AMENDMENT.
---------
This Agreement may be amended by the parties hereto at any time by
execution of an instrument in writing signed on behalf of Acacia, Acquisition
Company and CombiMatrix.
6.4 EXTENSION; WAIVER.
-----------------
At any time prior to the Effective Time, Acacia and CombiMatrix may, to
the extent legally allowed, (i) extend the time for the performance of any of
the obligations of the other party hereto, (ii) waive any inaccuracies in the
representations and warranties made to such party contained herein or in any
document delivered pursuant hereto, and (iii) waive compliance with any of the
agreements or conditions for the benefit of such party contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
A-28
ARTICLE VII
-----------
GENERAL PROVISIONS
------------------
7.1 SURVIVAL.
--------
Except with respect to the indemnification provisions set forth in
Section 4.13, the representations, warranties, covenants and other agreements
made by Acacia and CombiMatrix contained herein or in any instrument delivered
pursuant to this Agreement shall terminate and be of no further force or effect
on the date that is 180 days following the Effective Time.
7.2 DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES.
--------------------------------------------------
No party hereto makes any representation or warranty other than those
representations and warranties set forth in this Agreement (including Exhibits
and Schedules hereto).
7.3 NOTICES.
-------
All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or by commercial messenger or
courier service, or mailed by registered or certified (return receipt requested)
or overnight mail or sent via facsimile (with acknowledgment of complete
transmission) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice); provided, however,
that notices sent by mail will not be deemed given until received:
(a) if to Acacia or Acquisition Company:
Acacia Research Corporation
500 Newport Center Drive, 7th Floor
Newport Beach, CA 92660
Attention: Robert A. Berman
Telephone No.: (949) 480-8300
Facsimile No.: (949) 480-8301
with a copy to:
Allen Matkins Leck Gamble & Mallory LLP
1901 Avenue of the Stars, Suite 1800
Los Angeles, CA 90067-6019
Attention: Mark Kelson
Telephone No.: 310-788-2429
Facsimile No.: 310-788-2410
(b) if to CombiMatrix:
CombiMatrix Corporation
6500 Harbour Heights Parkway, Suite 301
Mukilteo, WA 98275
A-29
Attention: Amit Kumar, Ph.D.
Telephone No.: (425) 493-2000
Facsimile No.: (425) 493-2010
7.4 INTERPRETATION.
--------------
The words "include," "includes" and "including" when used herein shall
be deemed in each case to be followed by the words "without limitation." The
table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
7.5 COUNTERPARTS.
------------
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to the other party, it being understood that all parties need not sign
the same counterpart.
7.6 ENTIRE AGREEMENT; ASSIGNMENT.
----------------------------
This Agreement, the Exhibits hereto and the documents and instruments
and other agreements among the parties and/or their affiliates hereto referenced
herein or entered into in connection herewith: (a) constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings both written and oral, among
the parties with respect to the subject matter hereof; and (b) shall not be
assigned (other than by operation of law) without the written consent of the
other party. The obligations of the parties hereto shall be binding on the
respective legal successor and assigns to the parties and the successors in
interest of all or substantially all of the business of the respective parties.
7.7 SEVERABILITY.
------------
In the event that any provision of this Agreement or the application
thereof, becomes or is declared by a court of competent jurisdiction to be
illegal, void or unenforceable, the remainder of this Agreement will continue in
full force and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
such void or unenforceable provision.
7.8 OTHER REMEDIES.
--------------
Except as otherwise provided herein, any and all remedies herein
expressly conferred upon a party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or equity upon such
party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
A-30
7.9 GOVERNING LAW.
-------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
7.10 RULES OF CONSTRUCTION.
---------------------
The parties hereto agree that they have been represented by counsel
during the negotiation and execution of this Agreement and, therefor, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
7.11 SPECIFIC PERFORMANCE.
--------------------
The parties hereto agree that irreparable damage could occur in the
event any provision of this Agreement was not performed in accordance with the
terms hereof and that the parties will be entitled to the remedy of specific
performance of the terms hereof, in addition to any other right or remedy any
person hereto may have at law or in equity.
IN WITNESS WHEREOF, Acacia, Acquisition Company and CombiMatrix have
caused this Agreement to be signed, all as of the date first written above.
ACACIA RESEARCH CORPORATION
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
COMBI ACQUISITION CORP.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
COMBIMATRIX CORPORATION
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
A-31
ANNEX B
-------
PROPOSED RESTATED CERTIFICATE OF INCORPORATION
OF
ACACIA RESEARCH CORPORATION
ARTICLE I
NAME
The name of the corporation is Acacia Research Corporation (the "Corporation").
ARTICLE II
ADDRESS OF REGISTERED OFFICE;
NAME OF REGISTERED AGENT
The address of the registered office of the Corporation in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle, 19801. The name of its registered agent at that address is
The Corporation Trust Company.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the Delaware General Corporation Law
(the "DGCL").
ARTICLE IV
CAPITAL STOCK
SECTION 1.
SECTION 1.1 AUTHORIZATION. The aggregate number of shares of
stock which the Corporation shall have authority to issue is one hundred and ten
million (110,000,000) shares, of which fifty million (50,000,000) shares shall
be shares of a class of common stock designated as "Acacia Research -
CombiMatrix Common Stock," having a par value of $0.001 per share (the
"CombiMatrix Stock"), fifty million (50,000,000) shares shall be shares of a
class of common stock designated as "Acacia Research - Acacia Technologies
Common Stock," having a par value of $0.001 per share (the "Acacia Technologies
Stock"), and ten million (10,000,000) shares shall be shares of a class of
preferred stock having a par value of $0.001 per share (the "Preferred Stock")
and issuable in one or more series as hereinafter provided. For purposes of this
Article IV, references to the "Board of Directors" shall refer to the Board of
Directors of the Corporation, as established in accordance with Article V of the
certificate of incorporation of the Corporation, and references to "the
Certificate of Incorporation" shall refer to this Restated Certificate of
Incorporation as the same may be amended from time to time. Certain capitalized
terms used in this Article IV, shall have the meanings set forth in Section 2.6
B-1
of this Article. For purposes of this Article IV, the CombiMatrix Stock, when
issued, shall be considered issued in respect of the CombiMatrix Group and the
Acacia Technologies Stock, when issued, shall be considered issued in respect of
the Acacia Technologies Group. The number of authorized shares of any class or
classes of capital stock of the Corporation may be increased or decreased (but
not below the number of shares thereof then outstanding) by the affirmative vote
of the holders of a majority of the voting power of the stock of the Corporation
entitled to vote generally in the election of directors.
SECTION 1.2 Upon this Restated Certificate of Incorporation
becoming effective pursuant to the DGCL (the "Effective Time"), and without any
further action on the part of the Corporation or its stockholders, each share of
the Corporation's existing Common Stock, having a par value of $0.001 per share,
then issued (including shares held in the treasury of the Corporation)
("Existing Common Stock"), shall be automatically reclassified, changed and
converted into one (1) fully paid and non-assessable share of Acacia
Technologies Stock and (0.___) fully paid and non-assessable shares of
CombiMatrix Stock. Any stock certificate which, immediately prior to the
Effective Time, represents shares of Existing Common Stock, will, from and after
the Effective Time, automatically and without the necessity of presenting the
same for exchange, represent that number of shares as indicated above in this
Section 1.2 of Acacia Technologies Stock and CombiMatrix Stock. As soon as
practicable after the Effective Time, the Corporation's transfer agent shall
mail a transmittal letter to each record holder who then holds shares of Acacia
Technologies Stock and CombiMatrix Stock, informing such persons of this
reclassification with appropriate instructions on exchanging certificates
representing such shares and other relevant matters. The Acacia Technologies
Stock and CombiMatrix Stock are hereinafter collectively referred to as the
"Common Stock" and either shall sometimes be called a class of Common Stock.
SECTION 2. COMMON STOCK. The voting powers, preferences and relative,
participating, optional or other special rights of the Common Stock, and the
qualifications and restrictions thereon, shall be as follows in this Section 2.
SECTION 2.1 DIVIDENDS. Subject to any preferences and
relative, participating, optional or other special rights of any outstanding
class or series of preferred stock of the Corporation and any qualifications or
restrictions on either class of Common Stock created thereby, dividends may be
declared and paid upon either class of Common Stock, upon the terms with respect
to each such class, and subject to the limitations provided for below in this
Section 2.1, as the Board of Directors may determine.
(a) DIVIDENDS ON COMBIMATRIX STOCK. Dividends on
CombiMatrix Stock may be declared and paid only out of the lesser of (i) the
funds of the Corporation legally available therefor and (ii) the CombiMatrix
Group Available Dividend Amount.
(b) DIVIDENDS ON ACACIA TECHNOLOGIES STOCK. Dividends
on Acacia Technologies Stock may be declared and paid only out of the lesser of
(i) the funds of the Corporation legally available therefor and (ii) the Acacia
Technologies Group Available Dividend Amount.
(c) DISCRIMINATION IN DIVIDENDS BETWEEN CLASSES OF
COMMON STOCK. The Board of Directors, subject to the provisions of Sections
B-2
2.1(a) and 2.1(b), may at any time declare and pay dividends exclusively on
CombiMatrix Stock, exclusively on Acacia Technologies Stock, or on both such
classes, in equal or unequal amounts, notwithstanding the relative amounts of
the Available Dividend Amount with respect to either Group, the amount of
dividends previously declared on either class, the respective voting or
liquidation rights of either class or any other factor.
(d) SHARE DISTRIBUTIONS. Except as permitted by
Sections 2.4(a) and 2.4(b), the Board of Directors may declare and pay dividends
or distributions of shares of CombiMatrix Stock or Acacia Technologies Stock (or
Convertible Securities convertible into or exchangeable or exercisable for
shares of CombiMatrix Stock or Acacia Technologies Stock) on shares of a class
of Common Stock or shares of a class or series of preferred stock of the
Corporation only as follows:
(i) dividends or distributions of shares of
CombiMatrix Stock (or Convertible Securities convertible into or exchangeable or
exercisable for shares of CombiMatrix Stock) on shares of CombiMatrix Stock or
shares of preferred stock attributed to the CombiMatrix Group; and
(ii) dividends or distributions of shares of
Acacia Technologies Stock (or Convertible Securities convertible into or
exchangeable or exercisable for shares of Acacia Technologies Stock) on shares
of Acacia Technologies Stock or shares of preferred stock attributed to the
Acacia Technologies Group.
For purposes of this Section 2.1(d), any outstanding Convertible
Securities that are convertible into or exchangeable or exercisable for any
other Convertible Securities which are themselves convertible into or
exchangeable or exercisable for CombiMatrix Stock or Acacia Technologies Stock
(or other Convertible Securities that are so convertible, exchangeable or
exercisable) shall be deemed to have been converted, exchanged or exercised in
full for such Convertible Securities.
SECTION 2.2 VOTING RIGHTS.
(a) GENERAL. Except as otherwise provided by law, by
the terms of any outstanding class or series of preferred stock of the
Corporation or by any provision of the Certificate of Incorporation restricting
the power to vote on a specified matter to other stockholders, the entire voting
power of the stockholders of the Corporation shall be vested in the holders of
the Common Stock, who shall be entitled to vote on any matter on which the
holders of stock of the Corporation shall, by law or by the provisions of the
Certificate of Incorporation or Bylaws of the Corporation, be entitled to vote,
and both classes of Common Stock shall vote thereon together as a single class.
(b) NUMBER OF VOTES FOR EACH CLASS OF COMMON STOCK.
On each matter to be voted on by the holders of both classes of Common Stock
voting together as a single class, the number of votes per share of each class
shall be as follows:
(i) each outstanding share of CombiMatrix
Stock shall have one vote; and
B-3
(ii) each outstanding share of Acacia
Technologies Stock shall have a number of votes (including a fraction of one
vote) equal to the quotient (rounded to the nearest three decimal places) of the
average Market Value of one share of Acacia Technologies Stock during the
20-Trading Day Period ending on the tenth Trading Day prior to the record date
for determining the stockholders entitled to vote, divided by the average Market
Value of a share of CombiMatrix Stock during such 20-Trading Day period.
Notwithstanding the foregoing, if shares of only one class of Common
Stock are outstanding on the record date for determining the holders of Common
Stock entitled to vote on any matter, then each share of that class shall be
entitled to one vote and, if either class of Common Stock is entitled to vote as
a separate class with respect to any matter, each share of that class shall, for
purpose of such vote, be entitled to one vote on such matter.
In addition to any provision of law or any provision of the Certificate
of Incorporation entitling the holders of outstanding shares of CombiMatrix
Stock or Acacia Technologies Stock to vote as a separate class, the Board of
Directors may condition the approval of any matter submitted to stockholders on
receipt of a separate vote of the holders of outstanding shares of CombiMatrix
Stock or Acacia Technologies Stock.
SECTION 2.3 LIQUIDATION RIGHTS. In the event of any voluntary
or involuntary dissolution, liquidation or winding up of the Corporation, after
payment or provision for payment of the debts and other liabilities of the
Corporation and the full preferential amounts (including any accumulated and
unpaid dividends) to which the holders of any outstanding shares of preferred
stock of the Corporation are entitled (regardless of the Group to which such
shares of preferred stock were attributed), the holders of the CombiMatrix Stock
and Acacia Technologies Stock shall be entitled to receive the assets, if any,
of the Corporation remaining for distribution to holders of Common Stock on a
per share basis in proportion to the respective liquidation units per share of
such class. Each share of CombiMatrix Stock shall have one liquidation unit and
each share of Acacia Technologies Stock shall have a number of liquidation units
(including a fraction of one liquidation unit) equal to the quotient (rounded to
the nearest five decimal places) of the average Market Value of one share of
Acacia Technologies Stock during the 20-Trading Day period ending on the 40th
Trading Day after the effective date of this Certificate of Incorporation,
divided by the average Market Value of one share of CombiMatrix Stock during
such 20-Trading Day period. Neither the merger nor consolidation of the
Corporation into or with any other corporation, nor a sale, transfer or lease of
all or any part of the assets of the Corporation, shall, alone, be deemed a
liquidation or winding up of the Corporation or cause the dissolution of the
Corporation, for purposes of this Section 2.3.
If the Corporation shall in any manner subdivide (by stock split,
reclassification or otherwise) or combine (by reverse stock split,
reclassification or otherwise) the outstanding shares of CombiMatrix Stock or
Acacia Technologies Stock, or declare a dividend in shares of either class to
holders of such class, the per share liquidation units of either class of Common
Stock specified in the preceding paragraph of this Section 2.3, as adjusted from
time to time, shall be appropriately adjusted as determined by the Board of
Directors, so as to avoid dilution in the aggregate, relative liquidation rights
of the shares of any class of Common Stock.
B-4
SECTION 2.4 CONVERSION OR REDEMPTION OF THE COMMON STOCK.
CombiMatrix Stock is subject to conversion or redemption and Acacia Technologies
Stock is subject to conversion or redemption, in each case, upon the terms
provided below in this Section 2.4; provided, however, that neither class of
Common Stock may be converted or redeemed if the other class of Common Stock has
been converted or redeemed in its entirety or notice thereof shall have been
given as required by this Section 2.4.
(a) MANDATORY AND OPTIONAL CONVERSION AND REDEMPTION
OF COMBIMATRIX STOCK OTHER THAN FOR COMBIMATRIX SUBSIDIARY STOCK.
(i) In the event of the Disposition, in one
transaction or a series of related transactions, by the Corporation and/or its
subsidiaries of all or substantially all of the properties and assets attributed
to the CombiMatrix Group to one or more persons or entities (other than the
Disposition (w) by the Corporation of all or substantially all of its properties
and assets in one transaction or a series of related transactions in connection
with the dissolution, liquidation or winding up of the Corporation and the
distribution of assets to stockholders as referred to in Section 2.3, (x) of the
properties and assets attributed to the CombiMatrix Group as contemplated by
Section 2.4(c) or otherwise to all holders of shares of CombiMatrix Stock
divided among such holders on a pro rata basis in accordance with the number of
shares of CombiMatrix Stock outstanding, (y) to any person or entity controlled
(as determined by the Board of Directors) by the Corporation or (z) in
connection with a Related Business Transaction in respect of the CombiMatrix
Group), the Corporation shall, on or prior to the 95th Trading Day after the
date of consummation of such Disposition (the "Disposition Date"), pay a
dividend on CombiMatrix Stock or redeem some or all of CombiMatrix Stock or
convert CombiMatrix Stock into Acacia Technologies Stock (or another class or
series of common stock of the Corporation), all as provided by the following
Sections 2.4(a)(i)(1) and 2.4(a)(i)(2) and, to the extent applicable, by Section
2.4(f), as the Board of Directors shall have selected among such alternatives:
(1) provided that there are funds of the
Corporation legally available therefor:
(A) to the holders of the shares of
CombiMatrix Stock a dividend pro rata in accordance with the number of
shares of CombiMatrix Stock held by each such holder, as the Board of
Directors shall have declared subject to compliance with Section 2, in
cash and/ or in securities (other than a dividend of shares of a class
of Common Stock) or other property having a Fair Value as of the
Disposition Date in the aggregate equal to the Fair Value as of the
Disposition Date of the Net Proceeds of such Disposition; or
(B) (I) subject to the last
sentence of this Section 2.4(a)(i), if such Disposition involves all
(not merely substantially all) of the properties and assets attributed
to the CombiMatrix Group, redeem or exchange as of the Redemption Date
determined as provided by Section 2.4(f)(iii), all outstanding shares
of CombiMatrix Stock in exchange for, on a pro rata basis, cash and/or
for securities (other than shares of a class of
B-5
Common Stock) or other property having a Fair Value as of the
Disposition Date in the aggregate equal to the Fair Value as of the
Disposition Date of the Net Proceeds of such Disposition; or
(II) subject to the last
sentence of this Section 2.4(a)(i), if such Disposition involves
substantially all (but not all) of the properties and assets attributed
to the CombiMatrix Group, redeem or exchange as of the Redemption Date
determined as provided by Section 2.4(f)(iv) such number of whole
shares of CombiMatrix Stock (which may be all, but not more than all,
of such shares outstanding) as have in the aggregate an average Market
Value during the period of ten consecutive Trading Days beginning on
the 26th Trading Day immediately succeeding the Disposition Date
closest to the Fair Value as of the Disposition Date of the Net
Proceeds of such Disposition in consideration for, on a pro rata basis,
cash and/or securities (other than shares of a class of Common Stock)
or other property having a Fair Value as of the Disposition Date in the
aggregate equal to such Fair Value of the Net Proceeds; or
(2) declare that each outstanding share of
CombiMatrix Stock shall be converted as of the Conversion Date
determined as provided by Section 2.4(f)(v) into a number of fully paid
and nonassessable shares of Acacia Technologies Stock (or, if Acacia
Technologies Stock is not Publicly Traded at such time and shares of
another class or series of common stock of the Corporation (other than
CombiMatrix Stock) are then Publicly Traded, of such other class or
series of the common stock of the Corporation as has the largest Market
Capitalization as of the close of business on the Trading Day
immediately preceding the date of the notice of such conversion
required by Section 2.4(f)(v)) equal to 110% of the ratio, expressed as
a decimal fraction rounded to the nearest five decimal places, of the
average Market Value of one share of CombiMatrix Stock over the period
of ten consecutive Trading Days beginning on the 26th Trading Day
immediately succeeding the Disposition Date to the average Market Value
of one share of Acacia Technologies Stock (or such other class or
series of common stock) over the same ten Trading Day period.
Notwithstanding the foregoing provisions of this Section 2.4(a)(i), the
Corporation shall redeem shares of a class of Common Stock as provided by
Section 2.4(a)(i)(1)(B)(I) or (II) only if the amount to be paid in redemption
of such stock is less than or equal to the CombiMatrix Group Available Dividend
Amount as of the Redemption Date.
(ii) For purposes of this Section 2.4(a):
(1) as of any date, "substantially all of the properties and assets" attributed
to the CombiMatrix Group shall mean a portion of such properties and assets (A)
that represents at least 80% of the Fair Value of the properties and assets
attributed to the CombiMatrix Group as of such date or (B) from which were
derived at least 80% of the aggregate revenues for the immediately preceding
twelve fiscal quarterly periods of the Corporation (calculated on a pro forma
basis to include revenues derived from any of such properties and assets
acquired during such period) derived from the properties and assets attributed
to the CombiMatrix Group as of such date; (2) in the case of a Disposition of
the properties and assets attributed to the CombiMatrix Group in a series of
related transactions, such Disposition shall not be deemed to have been
consummated until the consummation of the last of such transactions; and (3) the
Board of Directors may pay any dividend or redemption price referred to in
Section 2.4(a)(i) in cash, securities (other than shares of a class of Common
B-6
Stock) or other property, regardless of the form or nature of the proceeds of
the Disposition.
(iii) The Board of Directors may at any time
declare that each outstanding share of CombiMatrix Stock shall be converted, as
of the Conversion Date provided by Section 2.4(f)(v), into a number of fully
paid and nonassessable shares of Acacia Technologies Stock (or, if Acacia
Technologies Stock is not Publicly Traded at such time and shares of any other
class or series of common stock of the Corporation (other than CombiMatrix
Stock) are then Publicly Traded, of such other class or series of common stock
of the Corporation as has the largest Market Capitalization as of the close of
business on the fifth Trading Day immediately preceding the date of the notice
of conversion required by Section 2.4(f)(v)) equal to 110% of the Market Value
Ratio of CombiMatrix Stock to Acacia Technologies Stock as of the fifth Trading
Day prior to the date of the notice of such conversion required by Section
2.4(f)(v).
(b) MANDATORY AND OPTIONAL CONVERSION AND REDEMPTION
OF ACACIA TECHNOLOGIES STOCK OTHER THAN FOR MEDIA TECHNOLOGIES SUBSIDIARY STOCK.
(i) In the event of the Disposition, in one transaction or a series of related
transactions, by the Corporation and/or its subsidiaries of all or substantially
all of the properties and assets attributed to the Acacia Technologies Group to
one or more persons or entities (other than the Disposition (w) by the
Corporation of all or substantially all of its properties and assets in one
transaction or a series of related transactions in connection with the
dissolution, liquidation or winding up of the Corporation and the distribution
of assets to stockholders as referred to in Section 2.3, (x) of the properties
and assets attributed to the Acacia Technologies Group as contemplated by
Section 2.4(d) or otherwise to all holders of shares of Acacia Technologies
Stock divided among such holders on a pro rata basis in accordance with the
number of shares of Acacia Technologies Stock outstanding, (y) to any person or
entity controlled (as determined by the Board of Directors) by the Corporation
or (z) in connection with a Related Business Transaction in respect of the
Acacia Technologies Group), the Corporation shall, on or prior to the 95th
Trading Day after the date of consummation of such Disposition (the "Disposition
Date"), pay a dividend on Acacia Technologies Stock or redeem some or all of
Acacia Technologies Stock or convert Acacia Technologies Stock into CombiMatrix
Stock (or another class or series of common stock of the Corporation), all as
provided by the following Sections 2.4(b)(i)(1) and 2.4(b)(i)(2) and, to the
extent applicable, by Section 2.4(f), as the Board of Directors shall have
selected among such alternatives:
(1) provided that there are funds of the
Corporation legally available therefor:
(A) pay to the holders of the
shares of Acacia Technologies Stock a dividend pro rata in accordance
with the number of shares of Acacia Technologies Stock held by each
such holder, as the Board of Directors shall have declared subject to
compliance with Section 2.1, in cash and/or in securities (other than a
dividend of shares of a class of Common Stock) or other property having
a Fair Value as of the Disposition Date in the aggregate equal to the
Fair Value as of the Disposition Date of the Net Proceeds of such
Disposition; or
B-7
(B) (I) subject to the last
sentence of this Section 2.4(b)(i), if such Disposition involves all
(not merely substantially all) of the properties and assets attributed
to the Acacia Technologies Group, redeem or exchange as of the
Redemption Date determined as provided by Section 2.4(f)(iii), all
outstanding shares of Acacia Technologies Stock in exchange for, on a
pro rata basis, cash and/or for securities (other than shares of a
class of Common Stock) or other property having a Fair Value as of the
Disposition Date in the aggregate equal to the Fair Value as of the
Disposition Date of the Net Proceeds of such Disposition; or
(II) subject to the last
sentence of this Section 2.4(b)(i), if such Disposition involves
substantially all (but not all) of the properties and assets attributed
to the Acacia Technologies Group, redeem or exchange as of the
Redemption Date determined as provided by Section 2.4(f)(iv) such
number of whole shares of Acacia Technologies Stock (which may be all,
but not more than all, of such shares outstanding) as have in the
aggregate an average Market Value during the period of ten consecutive
Trading Days beginning on the 26th Trading Day immediately succeeding
the Disposition Date closest to the Fair Value as of the Disposition
Date of the Net Proceeds of such Disposition in consideration for, on a
pro rata basis, cash and/or securities (other than shares of a class of
Common Stock) or other property having a Fair Value as of the
Disposition Date in the aggregate equal to such product; or
(2) declare that each outstanding share of
Acacia Technologies Stock shall be converted as of the Conversion Date
determined as provided by Section 2.4(f)(v) into a number of fully paid
and nonassessable shares of CombiMatrix Stock (or, if CombiMatrix Stock
is not Publicly Traded at such time and shares of another class or
series of common stock of the Corporation (other than Acacia
Technologies Stock) are then Publicly Traded, of such other class or
series of the common stock of the Corporation as has the largest Market
Capitalization as of the close of business on the Trading Day
immediately preceding the date of the notice of such conversion
required by Section 2.4(f)(v)) equal to 110% of the ratio, expressed as
a decimal fraction rounded to the nearest five decimal places, of the
average Market Value of one share of Acacia Technologies Stock over the
period of ten consecutive Trading Days beginning on the 26th Trading
Day immediately succeeding the Disposition Date to the average Market
Value of one share of CombiMatrix Stock (or such other class or series
of common stock) over the same ten Trading Day period.
Notwithstanding the foregoing provisions of this Section 2.4(b)(i), the
Corporation shall redeem shares of a class of Common Stock as provided by
Section 2.4(b)(i)(1)(B)(I) or (II) only if the amount to be paid in redemption
of such stock is less than or equal to the Acacia Technologies Group Available
Dividend Amount as of the Redemption Date.
(ii) For purposes of this Section 2.4(b):
(1) as of any date, "substantially all of the properties and assets" attributed
to the Acacia Technologies Group shall mean a portion of such properties and
assets (A) that represents at least 80% of the Fair Value of the properties and
assets attributed to the Acacia Technologies Group as of such date or (B) from
which were derived at least 80% of the aggregate revenues for the immediately
preceding twelve fiscal quarterly periods of the Corporation (calculated on a
B-8
pro forma basis to include revenues derived from any of such properties and
assets acquired during such period) derived from the properties and assets
attributed to the Acacia Technologies Group as of such date; (2) in the case of
a Disposition of the properties and assets attributed to the Acacia Technologies
Group in a series of related transactions, such Disposition shall not be deemed
to have been consummated until the consummation of the last of such
transactions; and (3) the Board of Directors may pay any dividend or redemption
price referred to in Section 2.4(b)(i) in cash, securities (other than shares of
a class of Common Stock) or other property, regardless of the form or nature of
the proceeds of the Disposition.
(iii) The Board of Directors may at any time
declare that each outstanding share of Acacia Technologies Stock shall be
converted, as of the Conversion Date provided by Section 2.4(f)(v), into a
number of fully paid and nonassessable shares of CombiMatrix Stock (or, if
CombiMatrix Stock is not Publicly Traded at such time and shares of any other
class or series of common stock of the Corporation (other than Acacia
Technologies Stock) are then Publicly Traded, of such other class or series of
common stock of the Corporation as has the largest Market Capitalization as of
the close of business on the fifth Trading Day immediately preceding the date of
the notice of conversion required by Section 2.4(f)(v)) equal to 110% of the
Market Value Ratio of Acacia Technologies Stock to CombiMatrix Stock as of the
fifth Trading Day prior to the date of the notice of such conversion required by
Section 2.4(f)(v).
(c) REDEMPTION OF COMBIMATRIX STOCK FOR COMBIMATRIX
SUBSIDIARY STOCK. At any time at which all of the assets and liabilities
attributed to the CombiMatrix Group (and no other assets or liabilities of the
Corporation or any subsidiary thereof) are held directly or indirectly by one or
more wholly-owned subsidiaries of the Corporation (each, a "CombiMatrix
Subsidiary"), the Board of Directors may, provided that there are funds of the
Corporation legally available therefor, redeem all of the outstanding shares of
CombiMatrix Stock, on a Redemption Date of which notice is delivered in
accordance with Section 2.4(f)(vi), in exchange for all of the shares of common
stock of each CombiMatrix Subsidiary as will be outstanding immediately
following such exchange of shares, such shares of common stock of each
CombiMatrix Subsidiary to be delivered to the holders of shares of CombiMatrix
Stock on the Redemption Date either directly or indirectly through the delivery
of shares of another CombiMatrix Subsidiary that owns directly or indirectly all
such shares, and to be divided among the holders of CombiMatrix Stock pro rata
in accordance with the number of shares of CombiMatrix Stock held by each such
holder on such Redemption Date, each of which shares of common stock of such
CombiMatrix Subsidiary shall be, upon such delivery, fully paid and
nonassessable.
(d) REDEMPTION OF ACACIA TECHNOLOGIES STOCK FOR MEDIA
TECHNOLOGIES SUBSIDIARY STOCK. At any time at which all of the assets and
liabilities attributed to the Acacia Technologies Group (and no other assets or
liabilities of the Corporation or any subsidiary thereof) are held directly or
indirectly by one or more wholly-owned subsidiaries of the Corporation (each, a
"Media Technologies Subsidiary"), the Board of Directors may, provided that
there are funds of the Corporation legally available therefor, redeem all of the
outstanding shares of Acacia Technologies Stock, on a Redemption Date of which
notice is delivered in accordance with Section 2.4(f)(vi), in exchange for all
B-9
of the shares of common stock of each Media Technologies Subsidiary as will be
outstanding immediately following such exchange of shares, such shares of common
stock of each Media Technologies Subsidiary to be delivered to the holders of
shares of Acacia Technologies Stock on the Redemption Date either directly or
indirectly through the delivery of shares of another Media Technologies
Subsidiary that owns directly or indirectly all such shares, and to be divided
among the holders of Acacia Technologies Stock pro rata in accordance with the
number of shares of Acacia Technologies Stock held by each such holder on such
Redemption Date, each of which shares of common stock of such Media Technologies
Subsidiary shall be, upon such delivery, fully paid and nonassessable.
(e) TREATMENT OF CONVERTIBLE SECURITIES. After any
Conversion Date or Redemption Date on which all outstanding shares of either
CombiMatrix Stock or Acacia Technologies Stock are converted or redeemed, any
share of such class of Common Stock that is to be issued on conversion, exchange
or exercise of any Convertible Securities shall, immediately upon such
conversion, exchange or exercise and without any notice from or to, or any other
action on the part of, the Corporation or its Board of Directors or the holder
of such Convertible Security:
(i) in the event the shares of such class of
Common Stock outstanding on such Conversion Date were converted into shares of
the other class of Common Stock (or another class or series of common stock of
the Corporation) pursuant to Section 2.4(a)(i)(2), 2.4(a)(iii), 2.4(b)(i)(2) or
2.4(a)(iii), be converted into the amount of cash and/or the number of shares of
the kind of capital stock and/or other securities or property of the Corporation
that number of shares of such class of Common Stock that were to be issued upon
such conversion, exchange or exercise would have received had such shares been
outstanding on such Conversion Date; or
(ii) in the event the shares of such class
of Common Stock outstanding on such Redemption Date were redeemed pursuant to
Section 2.4(a)(i)(1)(B), 2.4(b)(i)(1)(B), 2.4(c) or 2.4(d), be redeemed, to the
extent of funds of the Corporation legally available therefor, for $.01 per
share in cash for each share of such class of Common Stock that otherwise would
be issued upon such conversion, exchange or exercise.
The provisions of the preceding sentence of this Section 2.4(e) shall not apply
to the extent that other adjustments in respect of such conversion, exchange or
redemption of a class of Common Stock are otherwise made pursuant to the
provisions of such Convertible Securities.
(f) NOTICE AND OTHER PROVISIONS.
(i) Not later than the 20th Trading Day
following the consummation of a Disposition referred to in Section 2.4(a)(i) (in
the case of CombiMatrix Stock) or Section 2.4(b)(i) (in the case of Acacia
Technologies Stock), the Corporation shall announce publicly by press release
(1) the estimated Net Proceeds of such Disposition, (2) the number of shares
outstanding of the class of Common Stock relating to the Group subject to such
Disposition and (3) the number of shares of such class of Common Stock into or
for which Convertible Securities are then convertible, exchangeable or
exercisable and the conversion, exchange or exercise price thereof. Not earlier
than the 36th Trading Day and not later than the 40th Trading Day following the
consummation of such Disposition, the Corporation shall announce publicly by
B-10
press release which of the actions specified in Section 2.4(a)(i) or 2.4(b)(i),
as the case may be, it has irrevocably determined to take in respect of such
Disposition.
(ii) If the Corporation determines to pay a
dividend pursuant to Section 2.4(a)(i)(1)(A) (in the case of CombiMatrix Stock)
or Section 2.4(b)(i)(1)(A) (in the case of Acacia Technologies Stock), the
Corporation shall, not later than the 40th Trading Day following the
consummation of the Disposition referred to in such Section, cause notice to be
given to the holders of shares of the class of Common Stock relating to the
Group subject to such Disposition and to each holder of Convertible Securities
that are convertible into or exchangeable or exercisable for shares of such
class of Common Stock (unless alternate provision for such notice to the holders
of such Convertible Securities is made pursuant to the terms of such Convertible
Securities), setting forth (1) the record date for determining holders entitled
to receive such dividend, which shall be not earlier than the tenth Trading Day
and not later than the 20th Trading Day following the date of such notice, (2)
the anticipated payment date of such dividend (which shall not be more than 95
Trading Days following the consummation of such Disposition), (3) the type of
property to be paid as such dividend in respect of the outstanding shares of
such class of Common Stock, (4) the Net Proceeds of such Disposition, (5) the
number of outstanding shares of such class of Common Stock and the number of
shares of such class of Common Stock into or for which outstanding Convertible
Securities are then convertible, exchangeable or exercisable and the conversion,
exchange or exercise price thereof and (6) in the case of notice to be given to
holders of Convertible Securities, a statement to the effect that a holder of
such Convertible Securities shall be entitled to receive such dividend only if
such holder properly converts, exchanges or exercises such Convertible
Securities on or prior to the record date referred to in clause (1) of this
sentence. Such notice shall be sent by first-class mail, postage prepaid, to
each such holder at such holder's address as the same appears on the transfer
books of the Corporation on the record date fixed for such notice.
(iii) If the Corporation determines to
undertake a redemption pursuant to Section 2.4(a)(i)(1)(B)(I) (in the case of
CombiMatrix Stock) or Section 2.4(b)(i)(1)(B)(I) (in the case of Acacia
Technologies Stock), the Corporation shall, not earlier than the 35th Trading
Day and not later than the 45th Trading Day prior to the Redemption Date, cause
notice to be given to the holders of shares of the class of Common Stock
relating to the Group subject to the Disposition referred to in such Section and
to each holder of Convertible Securities convertible into or exchangeable or
exercisable for shares of such class of Common Stock (unless alternate provision
for such notice to the holders of such Convertible Securities is made pursuant
to the terms of such Convertible Securities), setting forth (1) a statement that
all shares of such class of Common Stock outstanding on the Redemption Date
shall be redeemed, (2) the Redemption Date (which shall not be more than 95
Trading Days following the consummation of such Disposition), (3) the type of
property in which the redemption price for the shares of such class of Common
Stock to be redeemed is to be paid, (4) the Net Proceeds of such Disposition,
(5) the place or places where certificates for shares of such class of Common
Stock, properly endorsed or assigned for transfer (unless the Corporation waives
such requirement), are to be surrendered for delivery of cash and/or securities
or other property, (6) the number of outstanding shares of such class of Common
Stock and the number of shares of such class of Common Stock into or for which
outstanding Convertible Securities are then convertible, exchangeable or
B-11
exercisable and the conversion, exchange or exercise price thereof, (7) in the
case of notice to be given to holders of Convertible Securities, a statement to
the effect that a holder of such Convertible Securities shall be entitled to
participate in such redemption only if such holder properly converts, exchanges
or exercises such Convertible Securities on or prior to the Redemption Date
referred to in clause (2) of this sentence and a statement as to what, if
anything, such holder will be entitled to receive pursuant to the terms of such
Convertible Securities or, if applicable, this Section 2.4 if such holder
thereafter converts, exchanges or exercises such Convertible Securities and (8)
a statement to the effect that, except as otherwise provided by Section
2.4(f)(ix), dividends on shares of such class of Common Stock shall cease to be
paid as of such Redemption Date. Such notice shall be sent by first-class mail,
postage prepaid, to each such holder at such holder's address as the same
appears on the transfer books of the Corporation on the record date fixed for
such notice.
(iv) If the Corporation determines to
undertake a redemption pursuant to Section 2.4(a)(i)(1)(B)(II) (in the case of
CombiMatrix Stock) or Section 2.4(b)(i)(1)(B)(II) (in the case of Acacia
Technologies Stock), the Corporation shall, not later than the 40th Trading Day
following the consummation of the Disposition referred to in such Section, cause
notice to be given to the holders of shares of the class of Common Stock
relating to the Group subject to such Disposition and to each holder of
Convertible Securities that are convertible into or exchangeable or exercisable
for shares of such class of Common Stock (unless alternate provision for such
notice to the holders of such Convertible Securities is made pursuant to the
terms of such Convertible Securities) setting forth (1) a date not earlier than
the tenth Trading Day and not later than the 20th Trading Day following the date
of such notice on which shares of such class of Common Stock shall be selected
for redemption, (2) the anticipated Redemption Date (which shall not be more
than 95 Trading Days following the consummation of such Disposition), (3) the
type of property in which the redemption price for the shares to be redeemed is
to be paid, (4) the Net Proceeds of such Disposition, (5) the number of shares
of such class of Common Stock outstanding and the number of shares of such class
of Common Stock into or for which outstanding Convertible Securities are then
convertible, exchangeable or exercisable and the conversion, exchange or
exercise price thereof, (6) in the case of notice to be given to holders of
Convertible Securities, a statement to the effect that a holder of such
Convertible Securities shall be eligible to participate in such selection for
redemption only if such holder properly converts, exchanges or exercises such
Convertible Securities on or prior to the record date referred to in clause (1)
of this sentence, and a statement as to what, if anything, such holder will be
entitled to receive pursuant to the terms of such Convertible Securities or, if
applicable, this Section 2.4 if such holder thereafter converts, exchanges or
exercises such Convertible Securities and (7) a statement that the Corporation
will not be required to register a transfer of any shares of such class of
Common Stock for a period of 15 Trading Days next preceding the date referred to
in clause (1) of this sentence. Promptly following the date referred to in
clause (1) of the preceding sentence, the Corporation shall cause a notice to be
given to each holder of record of shares of such class of Common Stock to be
redeemed setting forth (1) the number of shares of such class of Common Stock
held by such holder to be redeemed, (2) a statement that such shares of such
class of Common Stock shall be redeemed, (3) the Redemption Date, (4) the kind
and per share amount of cash and/or securities or other property to be received
by such holder with respect to each share of such class of Common Stock to be
redeemed, including details as to the calculation thereof, (5) the place or
places where certificates for shares of such class of Common Stock, properly
endorsed or assigned for transfer (unless the Corporation shall waive such
requirement), are to be surrendered for delivery of such cash and/or securities
B-12
or other property, (6) if applicable, a statement to the effect that the shares
being redeemed may no longer be transferred on the transfer books of the
Corporation after the Redemption Date and (7) a statement to the effect that,
subject to Section 2.4(f)(ix), dividends on such shares of such class of Common
Stock shall cease to be paid as of the Redemption Date. Such notices shall be
sent by first-class mail, postage prepaid, to each such holder at such holder's
address as the same appears on the transfer books of the Corporation on the
record date fixed for such notice.
(v) If the Corporation determines to convert
CombiMatrix Stock into Acacia Technologies Stock or Acacia Technologies Stock
into CombiMatrix Stock (or, in either case, another class or series of common
stock of the Corporation) pursuant to Section 2.4(a)(i)(2) or 2.4(a)(iii) (in
the case of the conversion of CombiMatrix Stock) or Section 2.4(b)(i)(2) or
2.4(b)(iii) (in the case of the conversion of Acacia Technologies Stock), the
Corporation shall, not earlier than the 35th Trading Day and not later than the
45th Trading Day prior to the Conversion Date cause notice to be given to the
holders of shares of the class of Common Stock to be so converted and to each
holder of Convertible Securities that are convertible into or exchangeable or
exercisable for shares of such class of Common Stock (unless alternate provision
for such notice to the holders of such Convertible Securities is made pursuant
to the terms of such Convertible Securities) setting forth (1) a statement that
all outstanding shares of such class of Common Stock shall be converted, (2) the
Conversion Date (which, in the case of a conversion after a Disposition, shall
not be more than 95 Trading Days following the consummation of such
Disposition), (3) the per share number of shares of Common Stock (or another
class or series of common stock of the Corporation) to be received with respect
to each share of such class of Common Stock, including details as to the
calculation thereof, (4) the place or places where certificates for shares of
such class of Common Stock, properly endorsed or assigned for transfer (unless
the Corporation shall waive such requirement), are to be surrendered for
delivery of certificates for shares of such class of Common Stock, (5) the
number of outstanding shares of such class of Common Stock and the number of
shares of such class of Common Stock into or for which outstanding Convertible
Securities are then convertible, exchangeable or exercisable and the conversion,
exchange or exercise price thereof, (6) a statement to the effect that, subject
to Section 2.4(f)(ix), dividends on shares of such class of Common Stock shall
cease to be paid as of such Conversion Date and (7) in the case of notice to
holders of such Convertible Securities, a statement to the effect that a holder
of such Convertible Securities shall be entitled to receive shares of such class
of Common Stock upon such conversion only if such holder properly converts,
exchanges or exercises such Convertible Securities on or prior to such
Conversion Date and a statement as to what, if anything, such holder will be
entitled to receive pursuant to the terms of such Convertible Securities or, if
applicable, this Section 2.4 if such holder thereafter converts, exchanges or
exercises such Convertible Securities. Such notice shall be sent by first-class
mail, postage prepaid, to each such holder at such holder's address as the same
appears on the transfer books of the Corporation on the record date fixed for
such notice.
(vi) If the Corporation determines to redeem
shares of CombiMatrix Stock pursuant to Section 2.4(c) or Acacia Technologies
Stock pursuant to Section 2.4(d), the Corporation shall cause notice to be given
to each holder of shares of such class of Common Stock to be redeemed and to the
holders of Convertible Securities that are convertible into or exchangeable or
exercisable for shares of such class of Common Stock (unless alternate provision
B-13
for such notice to the holders of such Convertible Securities is made pursuant
to the terms of such Convertible Securities), setting forth (1) a statement that
all shares of such class of Common Stock outstanding on the Redemption Date
shall be redeemed in exchange for shares of common stock of each CombiMatrix
Subsidiary or Media Technologies Subsidiary, as applicable, (2) the Redemption
Date, (3) the place or places where certificates for shares of the class of
Common Stock to be redeemed, properly endorsed or assigned for transfer (unless
the Corporation shall waive such requirement), are to be surrendered for
delivery of certificates for shares of common stock of each CombiMatrix
Subsidiary or Media Technologies Subsidiary, as applicable, (4) a statement to
the effect that, subject to Section 2.4(f)(ix), dividends on shares of such
class of Common Stock being redeemed shall cease to be paid as of such
Redemption Date, (5) the number of shares of such class of Common Stock
outstanding and the number of shares of such class of Common Stock into or for
which outstanding Convertible Securities are then convertible, exchangeable or
exercisable and the conversion, exchange or exercise price thereof and (6) in
the case of notice to holders of Convertible Securities, a statement to the
effect that a holder of Convertible Securities shall be entitled to receive
shares of common stock of each CombiMatrix Subsidiary or Media Technologies
Subsidiary, as applicable, upon redemption only if such holder properly
converts, exchanges or exercises such Convertible Securities on or prior to the
Redemption Date and a statement as to what, if anything, such holder will be
entitled to receive pursuant to the terms of such Convertible Securities or, if
applicable, this Section 2.4(f), if such holder thereafter converts, exchanges
or exercises such Convertible Securities. Such notice shall be sent by
first-class mail, postage prepaid, not less than 35 Trading Days nor more than
45 Trading Days prior to the Redemption Date to each such holder at such
holder's address as the same appears on the transfer books of the Corporation on
the record date fixed for such notice.
(vii) If less than all of the outstanding
shares of either class of Common Stock are to be redeemed pursuant to Section
2.4(a)(i)(1) (in the case of CombiMatrix Stock) or Section 2.4(b)(i)(1) (in the
case of Acacia Technologies Stock), the shares to be redeemed by the Corporation
shall be selected from among the holders of shares of such class of Common Stock
outstanding at the close of business on the record date for such redemption on a
pro rata basis among all such holders or by lot or by such other method as may
be determined by the Board of Directors to be equitable.
(viii) The Corporation shall not be required
to issue or deliver fractional shares of any capital stock or of any other
securities to any holder of either class of Common Stock upon any conversion,
redemption, dividend or other distribution pursuant to this Section 2.4. If more
than one share of either class of Common Stock shall be held at the same time by
the same holder, the Corporation may aggregate the number of shares of any
capital stock that shall be issuable or any other securities or property that
shall be distributable to such holder upon any conversion, redemption, dividend
or other distribution (including any fractional shares). If fractional shares of
any capital stock or of any other securities would be required to be issued or
distributed to the holders of either class of Common Stock, the Corporation
shall, if such fractional shares are not issued or distributed to the holder,
pay cash in respect of such fractional shares in an amount equal to the Fair
Value thereof (without interest).
B-14
(ix) No adjustments in respect of dividends
shall be made upon the conversion or redemption of any shares of either class of
Common Stock; provided, however, that if the Conversion Date or Redemption Date,
as the case may be, with respect to any shares of either class of Common Stock
shall be subsequent to the record date for the payment of a dividend or other
distribution thereon or with respect thereto, the holders of such class of
Common Stock at the close of business on such record date shall be entitled to
receive the dividend or other distribution payable on or with respect to such
shares on the date set for payment of such dividend or other distribution, in
each case without interest, notwithstanding the subsequent conversion or
redemption of such shares.
(x) Before any holder of shares of either
class of Common Stock shall be entitled to receive any cash payment and/or
certificates or instruments representing shares of any capital stock and/or
other securities or property to be distributed to such holder with respect to
such class of Common Stock pursuant to this Section 2.4, such holder shall
surrender at such place as the Corporation shall specify certificates for such
shares of Common Stock, properly endorsed or assigned for transfer (unless the
Corporation shall waive such requirement). The Corporation shall as soon as
practicable after receipt of certificates representing such shares of Common
Stock deliver to the person for whose account such shares of Common Stock were
so surrendered, or to such person's nominee or nominees, the cash and/ or the
certificates or instruments representing the number of whole shares of the kind
of capital stock and/or other securities or property to which such person shall
be entitled as aforesaid, together with any payment in respect of fractional
shares contemplated by Section 2.4(f)(viii), in each case without interest. If
less than all of the shares of either class of Common Stock represented by any
one certificate are to be redeemed, the Corporation shall issue and deliver a
new certificate for the shares of such class of Common Stock not redeemed.
(xi) From and after any applicable
Conversion Date or Redemption Date, as the case may be, all rights of a holder
of shares of either class of Common Stock that were converted or redeemed shall
cease except for the right, upon surrender of the certificates representing such
shares of Common Stock as required by Section 2.4(f)(x), to receive the cash
and/or the certificates or instruments representing shares of the kind and
amount of capital stock and/or other securities or property for which such
shares were converted or redeemed, together with any payment in respect of
fractional shares contemplated by Section 2.4(f)(viii) (which shall be held by
the Corporation for the holder of such shares of Common Stock that were redeemed
until the receipt of certificates representing such shares of Common Stock as
provided in Section 2.4(f)(x)) and rights to dividends as provided in Section
2.4(f)(ix), in each case without interest. No holder of a certificate that
immediately prior to the applicable Conversion Date or Redemption Date
represented shares of a class of Common Stock shall be entitled to receive any
dividend or other distribution or interest payment with respect to shares of any
kind of capital stock or other security or instrument for which such class of
Common Stock was converted or redeemed until the surrender as required by this
Section 2.4 of such certificate in exchange for a certificate or certificates or
instrument or instruments representing such capital stock or other security.
Subject to applicable escheat and similar laws, upon such surrender, there shall
be paid to the holder the amount of any dividends or other distributions
(without interest) which theretofore became payable on any class or series of
capital stock of the Corporation as of a record date after the Conversion Date
or Redemption Date, but that were not paid by reason of the foregoing, with
respect to the number of whole shares of the kind of capital stock represented
by the certificate or certificates issued upon such surrender. From and after a
Conversion Date or Redemption Date, the Corporation shall, however, be entitled
to treat the certificates for a class of Common Stock that have not yet been
B-15
surrendered for conversion or redemption as evidencing the ownership of the
number of whole shares of the kind or kinds of capital stock of the Corporation
for which the shares of such class of Common Stock represented by such
certificates shall have been converted or redeemed, notwithstanding the failure
to surrender such certificates.
(xii) The Corporation shall pay any and all
documentary, stamp or similar issue or transfer taxes that may be payable in
respect of the issuance or delivery of any shares of capital stock and/or other
securities upon conversion or redemption of shares of either class of Common
Stock pursuant to this Section 2.4. The Corporation shall not, however, be
required to pay any tax that may be payable in respect of any transfer involved
in the issuance or delivery of any shares of capital stock and/or other
securities in a name other than that in which the shares of such class of Common
Stock so converted or redeemed were registered, and no such issuance or delivery
shall be made unless and until the person requesting such issuance or delivery
has paid to the Corporation the amount of any such tax or has established to the
satisfaction of the Corporation that such tax has been paid.
(xiii) Neither the failure to mail any
notice required by this Section 2.4 to any particular holder of a class of
Common Stock or of Convertible Securities nor any defect therein shall affect
the sufficiency thereof with respect to any other holder of outstanding shares
of a class of Common Stock or of Convertible Securities or the validity of any
such conversion or redemption.
(xiv) The Board of Directors may establish
such rules and requirements to facilitate the effectuation of the transactions
contemplated by this Section 2.4 as the Board of Directors shall determine to be
appropriate.
SECTION 2.5 APPLICATION OF THE PROVISIONS OF ARTICLE IV.
(a) CERTAIN DETERMINATIONS BY THE BOARD OF DIRECTORS.
The Board of Directors shall make such determinations with respect to the
businesses, assets, properties and liabilities to be attributed to the Groups,
the application of the provisions of the Certificate of Incorporation to
transactions to be engaged in by the Corporation and the voting powers,
preferences and relative, participating, optional and other special rights of
the holders of either class of Common Stock, and the qualifications and
restrictions thereon, provided by the Certificate of Incorporation as may be or
become necessary or appropriate to the exercise of such powers, preferences and
relative, participating, optional and other special rights, including, without
limiting the foregoing, the determinations referred to in this Section 2.5. A
record of any such determination shall be filed with the records of the actions
of the Board of Directors.
(i) Upon any acquisition by the Corporation
or its subsidiaries of any assets or business, or any assumption of liabilities,
outside of the ordinary course of business of the CombiMatrix Group or the
Acacia Technologies Group, as the case may be, the Board of Directors shall
determine whether such assets, business and liabilities (or an interest therein)
shall be for the benefit of the CombiMatrix Group or the Acacia Technologies
Group or that an interest therein shall be partly for the benefit of the
CombiMatrix Group and partly for the benefit of the Acacia Technologies Group
B-16
and, accordingly, shall be attributed to the CombiMatrix Group or the Acacia
Technologies Group, or partly to each, in accordance with Section 2.6(f) or
2.6(c), as the case may be.
(ii) Upon any issuance of any shares of any
class or series of preferred stock of the Corporation, the Board of Directors
shall attribute, based on the use of proceeds of such issuance of shares of
preferred stock in the business of the CombiMatrix Group or the Acacia
Technologies Group and any other relevant factors, the shares so issued entirely
to the CombiMatrix Group or entirely to the Acacia Technologies Group or partly
to the CombiMatrix Group and partly to the Acacia Technologies Group in such
proportion as the Board of Directors shall determine.
(iii) Upon any redemption or repurchase by
the Corporation or any subsidiary thereof of shares of preferred stock of any
class or series or of other securities or debt obligations of the Corporation,
the Board of Directors shall determine, based on the property used to redeem or
purchase such shares, other securities or debt obligations, which, if any, of
such shares, other securities or debt obligations redeemed or repurchased shall
be attributed to the CombiMatrix Group and which, if any, of such shares, other
securities or debt obligations shall be attributed to the Acacia Technologies
Group and, accordingly, how many of the shares of such class or series of
preferred stock or of such other securities, or how much of such debt
obligations, that remain outstanding, if any, are thereafter attributed to the
CombiMatrix Group or the Acacia Technologies Group.
(b) CERTAIN DETERMINATIONS NOT REQUIRED.
Notwithstanding the foregoing provisions of this Section 2.5, the provisions of
Section 2.6(f) or 2.6(n) or any other provision of the Certificate of
Incorporation, at any time when there are not outstanding both (i) one or more
shares of CombiMatrix Stock or Convertible Securities convertible into or
exchangeable or exercisable for CombiMatrix Stock and (ii) one or more shares of
Acacia Technologies Stock or Convertible Securities convertible into or
exchangeable or exercisable for Acacia Technologies Stock, the Corporation need
not (A) attribute any of the assets or liabilities of the Corporation or any of
its subsidiaries to the CombiMatrix Group or the Acacia Technologies Group or
(B) make any determination required in connection therewith, nor shall the Board
of Directors be required to make any of the determinations otherwise required by
this Article, and in such circumstances the holders of the shares of CombiMatrix
Stock and Acacia Technologies Stock outstanding, as the case may be, shall
(unless otherwise specifically provided by the Certificate of Incorporation) be
entitled to all the voting powers, preferences and relative, participating,
optional and other special rights of both classes of Common Stock without
differentiation between the CombiMatrix Stock and the Acacia Technologies Stock.
(c) BOARD DETERMINATIONS BINDING. Subject to
applicable law, any determinations made in good faith by the Board of Directors
of the Corporation under any provision of this Section 2.5 or otherwise in
furtherance of the application of this Section 2 shall be final and binding on
all stockholders.
SECTION 2.6 CERTAIN DEFINITIONS. As used in the Certificate of
Incorporation, the following terms shall have the following meanings (with terms
defined in the singular having comparable meaning when used in the plural and
vice versa), unless the context otherwise requires. As used in this Section 2.6,
B-17
a "contribution" or "transfer" of assets or properties from one Group to another
shall refer to the reattribution of such assets or properties from the
contributing or transferring Group to the other Group and correlative phrases
shall have correlative meanings.
(a) "ACACIA EARNINGS (LOSS) ATTRIBUTABLE TO THE
ACACIA TECHNOLOGIES GROUP" shall mean, for any period through any date, (i) the
net income or loss of the Acacia Technologies Group for such period determined
in accordance with generally accepted accounting principles in effect at such
time, reflecting income and expense of the Corporation attributed to the Acacia
Technologies Group on a basis substantially consistent with attributions of
income and expense made in the calculation of Acacia Earnings (Loss)
Attributable to the CombiMatrix Group, including, without limitation, corporate
administrative costs, net interest and other financial costs and income taxes.
(b) "ACACIA EARNINGS (LOSS) ATTRIBUTABLE TO THE
COMBIMATRIX GROUP" shall mean, for any period through any date, (i) the net
income or loss of the CombiMatrix Group for such period determined in accordance
with generally accepted accounting principles in effect at such time, reflecting
income and expense of the Corporation attributed to the CombiMatrix Group on a
basis substantially consistent with attributions of income and expense made in
the calculation of Acacia Earnings (Loss) Attributable to the Acacia
Technologies Group, including, without limitation, corporate administrative
costs, net interest and other financial costs and income taxes.
(c) "ACACIA TECHNOLOGIES GROUP" shall mean, as of any
date:
(i) the interest of the Corporation on such
date in Acacia Media Technologies Corporation, Soundview Technologies, Inc.,
Acacia Research Investment Corporation, Advanced Data Exchange, Inc. and
Soundbreak.com, Inc. (the "Acacia Technologies Group Companies"), any successor
companies, and all of the businesses, assets and liabilities of the Acacia
Technologies Group Companies and any subsidiaries thereof;
(ii) all assets and liabilities of the
Corporation and its subsidiaries attributed by the Board of Directors to the
Acacia Technologies Group, whether or not such assets or liabilities are or were
also assets and liabilities of the Acacia Technologies Group Companies;
(iii) all businesses, assets, properties and
liabilities transferred to the Acacia Technologies Group from the CombiMatrix
Group (other than in a transaction pursuant to Section 2.6(c)(iv)) pursuant to
transactions in the ordinary course of business of the Acacia Technologies Group
and the CombiMatrix Group or otherwise as the Board of Directors may have
directed as permitted by the Certificate of Incorporation; and
(iv) interest of the Corporation or any of
its subsidiaries in any business or asset acquired and any liabilities assumed
by the Corporation or any of its subsidiaries outside of the ordinary course of
business and attributed to the Acacia Technologies Group, as determined by the
Board of Directors as contemplated by Section 2.5(a)(i);
B-18
provided that from and after any transfer of any assets or properties from the
Acacia Technologies Group to the CombiMatrix Group, the Acacia Technologies
Group shall no longer include such assets or properties so transferred.
(d) "ACACIA TECHNOLOGIES GROUP AVAILABLE DIVIDEND
AMOUNT" shall mean, on any date, either:
(x)(i) an amount equal to the fair market value of the total
assets attributed to the Acacia Technologies Group less the total
liabilities attributed to the Acacia Technologies Group (provided that
preferred stock shall not be treated as a liability), in each case, as
of such date and determined on a basis consistent with that applied in
determining Acacia Earnings (Loss) Attributable to the Acacia
Technologies Group, minus (ii) the aggregate par value of, or any
greater amount determined in accordance with applicable law to be
capital in respect of, all outstanding shares of Acacia Technologies
Stock and each class or series of preferred stock attributed in
accordance with the Certificate of Incorporation to the Acacia
Technologies Group, or
(y) in case the total amount calculated pursuant to clause (i)
above is not a positive number, an amount equal to Acacia Earnings
(Loss) Attributable to the Acacia Technologies Group (if positive) for
the fiscal year in which the dividend is declared and/or the preceding
fiscal year.
Notwithstanding the foregoing provisions of this Section 2.6(d), and consistent
with Section 2.5(c), at any time when there are not outstanding both (i) one or
more shares of CombiMatrix Stock or Convertible Securities convertible into or
exchangeable or exercisable for CombiMatrix Stock and (ii) one or more shares of
Acacia Technologies Stock or Convertible Securities convertible into or
exchangeable or exercisable for Acacia Technologies Stock, the "Available
Dividend Amount," on any calculation date during such time period, with respect
to the CombiMatrix Stock or the Acacia Technologies Stock, as the case may be
(depending on which of such classes of Common Stock or Convertible Securities
convertible into or exchangeable or exercisable for such class of Common Stock
is outstanding), shall mean the amount available for the payment of dividends on
such Common Stock in accordance with law.
(e) "AVAILABLE DIVIDEND AMOUNT" shall mean, as the
context requires, a reference to the CombiMatrix Group Available Dividend Amount
or the Acacia Technologies Group Available Dividend Amount.
(f) "COMBIMATRIX GROUP" shall mean, as of any date:
(i) the interest of the Corporation on such
date in CombiMatrix Corporation (the "CombiMatrix Group Companies"), any
successor companies, and all of the businesses, assets and liabilities of the
CombiMatrix Group Companies and any subsidiaries thereof;
(ii) all assets and liabilities of the
Corporation and its subsidiaries attributed by the Board of Directors to the
CombiMatrix Group, whether or not such assets or liabilities are or were also
assets and liabilities of the Acacia Technologies Group Companies;
B-19
(iii) all businesses, assets, properties and
liabilities transferred to the CombiMatrix Group from the Acacia Technologies
Group (other than in a transaction pursuant to Section 2.6(f)(iii)) pursuant to
transactions in the ordinary course of business of the CombiMatrix Group and the
Acacia Technologies Group or otherwise as the Board of Directors may have
directed as permitted by the Certificate of Incorporation; and
(iv) the interest of the Corporation or any
of its subsidiaries in any business or asset acquired and any liabilities
assumed by the Corporation or any of its subsidiaries outside of the ordinary
course of business and attributed to the CombiMatrix Group, as determined by the
Board of Directors as contemplated by Section 2.5(a)(i);
provided that from and after any transfer of any assets or properties from the
CombiMatrix Group to the Acacia Technologies Group, the CombiMatrix Group shall
no longer include such assets or properties so transferred.
(g) "COMBIMATRIX GROUP AVAILABLE DIVIDEND AMOUNT"
shall mean, on any date, either:
(x)(i) the amount equal to the fair market value of the total
assets attributed to the CombiMatrix Group less the total liabilities
attributed to the CombiMatrix Group (provided that preferred stock
shall not be treated as a liability), in each case, as of such date and
determined on a basis consistent with that applied in determining
Acacia Earnings (Loss) Attributable to the CombiMatrix Group, minus
(ii) the aggregate par value of, or any greater amount determined in
accordance with applicable law to be capital in respect of, all
outstanding shares of CombiMatrix Stock and each class or series of
preferred stock attributed in accordance with the Certificate of
Incorporation to the CombiMatrix Group, or
(y) in case the total amount calculated pursuant to clause (i)
above is not a positive number, an amount equal to Acacia Earnings
(Loss) Attributable to the CombiMatrix Group (if positive) for the
fiscal year in which the dividend is declared and/or the preceding
fiscal year.
Notwithstanding the foregoing provisions of this Section 2.6(g), and consistent
with Section 2.5(c), at any time when there are not outstanding both (i) one or
more shares of CombiMatrix Stock or Convertible Securities convertible into or
exchangeable or exercisable for CombiMatrix Stock and (ii) one or more shares of
Acacia Technologies Stock or Convertible Securities convertible into or
exchangeable or exercisable for Acacia Technologies Stock, the "Available
Dividend Amount," on any calculation date during such time period, with respect
to the CombiMatrix Stock or the Acacia Technologies Stock, as the case may be
(depending on which of such classes of Common Stock or Convertible Securities
convertible into or exchangeable or exercisable for such class of Common Stock
is outstanding), shall mean the amount available for the payment of dividends on
such Common Stock in accordance with law.
B-20
(h) "CONVERSION DATE" shall mean the date fixed by
the Board of Directors as the effective date for the conversion of shares of
CombiMatrix Stock into shares of Acacia Technologies Stock (or another class or
series of common stock of the Corporation) or of shares of Acacia Technologies
Stock into shares of CombiMatrix Stock (or another class or series of common
stock of the Corporation), as the case may be, as shall be set forth in the
notice to holders of shares of the class of Common Stock subject to such
conversion and to holders of any Convertible Securities that are convertible
into or exchangeable or exercisable for shares of the class of Common Stock
subject to such conversion required pursuant to Section 2.4(f)(v).
(i) "CONVERTIBLE SECURITIES" shall mean, as of any
date, any securities of the Corporation or of any subsidiary thereof (other than
shares of a class of Common Stock), including warrants and options, outstanding
at such time that by their terms are convertible into or exchangeable or
exercisable for or evidence the right to acquire any shares of either class of
Common Stock, whether convertible, exchangeable or exercisable at such time or a
later time or only upon the occurrence of certain events; provided that
securities shall only be Convertible Securities in respect of the number of
shares of Common Stock into or for which such securities are then convertible,
exchangeable or exercisable.
(j) "DISPOSITION" shall mean a sale, transfer,
assignment or other disposition (whether by merger, consolidation, sale or
contribution of assets or stock or otherwise) of properties or assets (including
stock, other securities and goodwill).
(k) "FAIR VALUE" shall mean, (i) in the case of
equity securities or debt securities of a class or series that has previously
been Publicly Traded for a period of at least 15 months, the Market Value
thereof (if such Market Value, as so defined, can be determined); (ii) in the
case of an equity security or debt security that has not been Publicly Traded
for at least 15 months or the Market Value of which cannot be determined, the
fair value per share of stock or per other unit of such security, on a fully
distributed basis, as determined by an independent investment banking firm
experienced in the valuation of securities selected in good faith by the Board
of Directors, or, if no such investment banking firm is, as determined in the
good faith judgment of the Board of Directors, available to make such
determination, in good faith by the Board of Directors; (iii) in the case of
cash denominated in U.S. dollars, the face amount thereof and in the case of
cash denominated in other than U.S. dollars, the face amount thereof converted
into U.S. dollars at the rate published in The Wall Street Journal on the date
for the determination of Fair Value or, if not so published, at such rate as
shall be determined in good faith by the Board of Directors based upon such
information as the Board of Directors shall in good faith determine to be
appropriate; and (iv) in the case of property other than securities or cash, the
"Fair Value" thereof shall be determined in good faith by the Board of Directors
based upon such appraisals or valuation reports of such independent experts as
the Board of Directors shall in good faith determine to be appropriate. Any such
determination of Fair Value shall be described in a statement filed with the
records of the actions of the Board of Directors.
(l) "GROUP" shall mean, as of any date, the
CombiMatrix Group or the Acacia Technologies Group, as the case may be.
(m) "MARKET CAPITALIZATION" of any class or series of
capital stock on any date shall mean the product of (i) the Market Value of one
share of such class or series of capital stock on such date and (ii) the number
of shares of such class or series of capital stock outstanding on such date.
B-21
(n) "MARKET VALUE" of a share of any class or series
of capital stock of the Corporation on any day shall mean the average of the
high and low reported sales prices regular way of a share of such class or
series on such Trading Day or, in case no such reported sale takes place on such
Trading Day, the average of the reported closing bid and asked prices regular
way of a share of such class or series on such Trading Day, in either case as
reported on the New York Stock Exchange Composite Tape or, if the shares of such
class or series are not listed or admitted to trading on such Exchange on such
Trading Day, on the principal national securities exchange in the United States
on which the shares of such class or series are listed or admitted to trading
or, if not listed or admitted to trading on any national securities exchange on
such Trading Day, on the Nasdaq National Market or, if the shares of such class
or series are not listed or admitted to trading on any national securities
exchange or quoted on the Nasdaq National Market on such Trading Day, the
average of the closing bid and asked prices of a share of such class or series
in the over-the-counter market on such Trading Day as furnished by any New York
Stock Exchange member firm selected from time to time by the Corporation or, if
such closing bid and asked prices are not made available by any such New York
Stock Exchange member firm on such Trading Day, the Fair Value of a share of
such class or series as set forth in clause (ii) of the definition of Fair
Value; provided that, for purposes of determining the "Market Value" of a share
of any class or series of capital stock for any period, (i) the "Market Value"
of a share of capital stock on any day prior to any "ex-dividend" date or any
similar date occurring during such period for any dividend or distribution
(other than any dividend or distribution contemplated by clause (ii)(B) of this
sentence) paid or to be paid with respect to such capital stock shall be reduced
by the Fair Value of the per share amount of such dividend or distribution and
(ii) the "Market Value" of any share of capital stock on any day prior to (A)
the effective date of any subdivision (by stock split or otherwise) or
combination (by reverse stock split or otherwise) of outstanding shares of such
class or series of capital stock occurring during such period or (B) any
"ex-dividend" date or any similar date occurring during such period for any
dividend or distribution with respect to such capital stock to be made in shares
of such class or series of capital stock or Convertible Securities that are
convertible, exchangeable or exercisable for such class or series of capital
stock shall be appropriately adjusted, as determined by the Board of Directors,
to reflect such subdivision, combination, dividend or distribution.
(o) "MARKET VALUE RATIO OF ACACIA TECHNOLOGIES STOCK
TO COMBIMATRIX STOCK" as of any date shall mean the fraction (which may be
greater or less than 1/1), expressed as a decimal (rounded to the nearest five
decimal places), of a share of CombiMatrix Stock (or another class or series of
common stock of the Corporation, if so provided by Section 2.4(b)(iii) because
CombiMatrix Stock is not then Publicly Traded) to be issued in respect of a
share of Acacia Technologies Stock upon a conversion of Acacia Technologies
Stock into CombiMatrix Stock (or another class or series of common stock of the
Corporation) in accordance with Section 2.4(b)(iii) the numerator of which shall
be the average Market Value of one share of Acacia Technologies Stock during the
20-Trading Day period ending on such date and the denominator of which shall be
the average Market Value of one share of CombiMatrix Stock (or such other common
stock) during the 20-Trading Day period ending on such date.
B-22
(p) "MARKET VALUE RATIO OF COMBIMATRIX STOCK TO
ACACIA TECHNOLOGIES STOCK" as of any date shall mean the fraction (which may be
greater or less than 1/1), expressed as a decimal (rounded to the nearest five
decimal places), of a share of Acacia Technologies Stock (or another class or
series of common stock of the Corporation, if so provided by Section 2.4(a)(iii)
because Acacia Technologies Stock is not then Publicly Traded) to be issued in
respect of a share of CombiMatrix Stock upon a conversion of CombiMatrix Stock
into Acacia Technologies Stock (or another class or series of common stock of
the Corporation) in accordance with Section 2.4(a)(iii), the numerator of which
shall be the average Market Value of one share of CombiMatrix Stock during the
20-Trading Day period ending on such date and the denominator of which shall be
the average Market Value of one share of Acacia Technologies Stock (or such
other common stock) during the 20-Trading Day period ending on such date.
(q) "NET PROCEEDS" shall mean, as of any date with
respect to any Disposition of any of the properties and assets attributed to the
CombiMatrix Group or the Acacia Technologies Group, as the case may be, an
amount, if any, equal to what remains of the gross proceeds of such Disposition
after payment of, or reasonable provision is made as determined by the Board of
Directors for, (i) any taxes payable by the Corporation (or which would have
been payable but for the utilization of tax benefits attributable to the other
Group) in respect of such Disposition or in respect of any resulting dividend or
redemption pursuant to Section 2.4(a)(i)(1)(A), 2.4(a)(i)(1)(B), 2.4(b)(i)(1)(A)
or 2.4(b)(i)(1)(B), (ii) any transaction costs, including, without limitation,
any legal, investment banking and accounting fees and expenses and (iii) any
liabilities (contingent or otherwise) of or attributed to such Group, including,
without limitation, any liabilities for deferred taxes or any indemnity or
guarantee obligations of the Corporation incurred in connection with the
Disposition or otherwise, and any liabilities for future purchase price
adjustments and any preferential amounts plus any accumulated and unpaid
dividends in respect of the preferred stock attributed to such Group. For
purposes of this definition, any properties and assets attributed to the Group,
the properties and assets of which are subject to such Disposition, remaining
after such Disposition shall constitute "reasonable provision" for such amount
of taxes, costs and liabilities (contingent or otherwise) as the Board of
Directors determines can be expected to be supported by such properties and
assets.
(r) "PUBLICLY TRADED" with respect to any security
shall mean that such security is (i) registered under Section 12 of the
Securities Exchange Act of 1934, as amended (or any successor provision of law),
and (ii) listed for trading on the New York Stock Exchange or the American Stock
Exchange (or any national securities exchange registered under Section 7 of the
Securities Exchange Act of 1934, as amended (or any successor provision of law),
that is the successor to either such exchange) or listed on The Nasdaq Stock
Market (or any successor market system).
(s) "RELATED BUSINESS TRANSACTION" means any
Disposition of all or substantially all the properties and assets attributed to
the CombiMatrix Group or the Acacia Technologies Group, as the case may be, in a
transaction or series of related transactions that result in the Corporation
receiving in consideration of such properties and assets primarily equity
securities (including, without limitation, capital stock, debt securities
convertible into or exchangeable for equity securities or interests in a general
or limited partnership or limited liability company, without regard to the
voting power or other management or governance rights associated therewith) of
any entity which (i) acquires such properties or assets or succeeds (by merger,
formation of a joint venture or otherwise) to the business conducted with such
properties or assets or controls such acquiror or successor and (ii) is engaged
B-23
primarily or proposes to engage primarily in one or more businesses similar or
complementary to the businesses conducted by such Group prior to such
Disposition, as determined by the Board of Directors.
(t) "REDEMPTION DATE" shall mean the date fixed by
the Board of Directors as the effective date for a redemption of shares of
either class of Common Stock, as set forth in a notice to holders thereof
required pursuant to Section 2.4(f)(iii), (iv), (v) or (vi).
(u) "TRADING DAY" shall mean each weekday other than
any day on which the relevant class of common stock of the Corporation is not
traded on any national securities exchange or listed on The Nasdaq Stock Market
or in the over-the-counter market.
SECTION 3. PREFERRED STOCK. The Preferred Stock may be issued
from time to time in one or more series, each with such distinctive designation
as may be stated in the Certificate of Incorporation or in any amendment hereto,
or in a resolution or resolutions providing for the issue of such stock from
time to time adopted by the Board of Directors or a duly authorized committee
thereof. The resolution or resolutions providing for the issue of shares of a
particular series shall fix, subject to applicable laws and the provisions of
the Certificate of Incorporation, for each such series the number of shares
constituting such series and the designation and the voting powers, preferences
and relative, participating, optional or other special rights and the
qualifications, limitations or restrictions thereof, including, without limiting
the generality of the foregoing, such provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subjects or matters as may be fixed by
the Board of Directors or a duly authorized committee thereof under the DGCL.
ARTICLE V
BOARD OF DIRECTORS
SECTION 1. NUMBER OF DIRECTORS AND THEIR ELECTION. The number
of directors of the Corporation shall be fixed from time to time by a by-law of
the Corporation or amendment thereof duly adopted by the Board of Directors.
Election of directors need not be by written ballot, unless so provided in the
By-laws of the Corporation.
SECTION 2. POWERS OF THE BOARD OF DIRECTORS. In furtherance,
and not in limitation, of the powers conferred by the laws of the State of
Delaware, the Board of Directors is expressly authorized to adopt, alter, amend
and repeal the By-laws of the Corporation, subject to the power of the
stockholders of the Corporation to alter or repeal any by-law whether adopted by
them or otherwise; provided, however, that the affirmative vote of 66 and 2/3
percent of the voting power of the capital stock of the Corporation entitled to
vote thereon shall be required for stockholders to adopt, amend, alter or repeal
any provision of the By-laws of the Corporation.
SECTION 3. CLASSIFIED BOARD OF DIRECTORS. Except as otherwise
provided for or fixed pursuant to the provisions of Article V of this
Certificate of Incorporation or any resolution or resolutions of the Board of
Directors providing for the issuance of any class or series of stock having a
B-24
preference over the Common Stock as to dividends or upon liquidation to elect
additional directors under specified circumstances, the number of directors
shall be determined by the Board of Directors in accordance with the Bylaws. The
directors, other than those who may be elected by the holders of Preferred Stock
or any other class or series of stock having a preference over the Common Stock
as to dividends or upon liquidation pursuant to the terms of this Certificate of
Incorporation or any resolution or resolutions providing for the issuance of
such class or series of stock adopted by the Board of Directors, shall be
divided into three classes, Class I, Class II and Class III, as nearly equal in
number as possible. The term of office for the Class I directors shall expire at
the annual meeting of the stockholders in 2004; the term of office for the Class
II directors shall expire at the annual meeting of the stockholders in 2002; and
the term of office for the Class III directors shall expire at the annual
meeting of the stockholders in 2003. At each annual meeting of the stockholders
commencing in 2002, the successors to the directors whose terms are expiring
shall be elected to a term expiring at the third succeeding annual meeting of
the stockholders. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any additional
directors of any class elected by the stockholders or appointed by the Board of
Directors to fill a vacancy resulting from an increase in such class shall hold
office for a term that shall coincide with the remaining term of that class, but
in no case will a decrease in the number of directors shorten the term of any
incumbent director. A director elected by the stockholders or appointed by the
Board of Directors to fill a vacancy caused by the death, resignation,
retirement, disqualification or removal of a director shall hold office for a
term that shall coincide with the remaining term of that class. A director shall
hold office until the annual meeting for the year in which his or her term
expires and until his or her successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office.
ARTICLE VI
STOCKHOLDER ACTIONS
SECTION 1. MEETINGS AND RECORDS. Meetings of stockholders may
be held within or without the State of Delaware, as the By-laws of the
Corporation may provide. The books of the Corporations may be kept (subject to
the DGCL) outside of the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the By-laws of the
Corporation.
SECTION 2. SPECIAL MEETINGS. Special meetings of stockholders
may be called at any time by the Board of Directors or by the Chairman of the
Board of Directors, or the President, and may not be called by any other person
or persons.
SECTION 3. WRITTEN CONSENTS. No action that is required or
permitted to be taken by the stockholders of the Corporation at any annual or
special meeting of the stockholders may be effected by written consent of the
stockholders in lieu of a meeting of stockholders.
B-25
ARTICLE VII
LIMITATION ON LIABILITY OF DIRECTORS
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.
ARTICLE VIII
INDEMNIFICATION
SECTION 1. The Corporation may indemnify to the fullest extent
permitted by law any person made or threatened to be made a party to an action
or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that such person, his or her testator or intestate is or was
a director, officer or employee of the Corporation or any predecessor of the
Corporation or serves or served at any other enterprise as a director, officer
or employee at the request of the Corporation or any predecessor to the
Corporation. No amendment, repeal or modification of this Article VIII by the
stockholders shall adversely affect any right or protection of a director of the
Corporation existing by virtue of this Article VIII at the time of such
amendment, repeal or modification.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation hereby reserves the right from time to time to amend,
alter, change or repeal any provision contained in the Certificate of
Incorporation, and other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law, and all rights, preferences, and privileges of
whatsoever nature conferred upon the stockholders, directors or any other
persons whomsoever by or pursuant to this Certificate of Incorporation in its
present form or as hereafter amended are granted subject to the right reserved
in this Article IX
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation which restates, integrates and amends the provisions of the
certificate of incorporation of the Corporation, and which has been duly adopted
in accordance with the provisions of Sections 241 and 245 of the Delaware
General Corporation Law, has been executed by _______________, its
_____________________, this ___________ day of ___________________, 2002 and by
so executing, the undersigned certifies that the Corporation has not received
any payment for any of its stock.
B-26
ACACIA RESEARCH CORPORATION
By:
--------------------------------------
Name:
--------------------------------
Title:
--------------------------------
B-27
ANNEX C
-------
ACACIA RESEARCH CORPORATION
PROPOSED COMMON STOCK POLICIES
These Common Stock Policies of Acacia Research Corporation (the
"Corporation") pertain to the two classes of common stock of the Corporation:
(a) the Acacia Research - CombiMatrix Common Stock (the "CombiMatrix
Stock"), which is intended to reflect the performance of the Corporation's life
sciences business (the "CombiMatrix Group"); and
(b) the Acacia Research - Acacia Technologies Common Stock (the "Acacia
Technologies Stock"), which is intended to reflect the performance of the
Corporation's media technologies business (the "Acacia Technologies Group").
The CombiMatrix Group and the Acacia Technologies Group are sometimes
referred to herein separately as a "Group" and collectively as "Groups."
These policies may be modified, amended, suspended, added to or
rescinded from time to time by the Board of Directors of the Corporation (the
"Board"), acting in its sole discretion, and exceptions thereto may be made from
time to time by the Board, acting in its sole discretion, with or without the
approval of the Corporation's stockholders, subject in each case to any
limitations set forth in the Amended and Restated Certificate of Incorporation
(the "Certificate of Incorporation") of the Corporation and to any limitations
imposed by the fiduciary duties of the Board or applicable law. All capitalized
terms used but not defined herein have the respective meanings assigned thereto
in the Certificate of Incorporation.
1. THE COMBIMATRIX GROUP
The following interests shall be attributed to the CombiMatrix Group:
(a) all of the interests of the Corporation and its subsidiaries in
CombiMatrix Corporation, a Delaware corporation;
(b) all of the rights, title and interests attributed to the
CombiMatrix Group pursuant to the resolutions of the Board entitled "CombiMatrix
Stock Attributed Interests" approved concurrently with the Board's approval of
these Common Stock Policies; and
(c) any subsidiaries or equity investments of, or successors to, the
companies or interests identified in the foregoing clauses (a) and (b).
It is the current intention of the Corporation to (i) attribute all of
the Corporation's present and future interests worldwide in its life sciences
businesses to the CombiMatrix Group and (ii) pursue a life sciences business
through the CombiMatrix Group.
C-1
2. THE ACACIA TECHNOLOGIES GROUP
The following interests shall be attributable to the Acacia
Technologies Group:
(a) all of the interests of the Corporation and its subsidiaries
in each of the following:
(i) Soundview Technologies, Inc., a Delaware corporation;
(ii) Acacia Media Technologies Corporation, a Delaware
corporation;
(iii) Acacia Research Investment Corporation, a Delaware
corporation;
(iv) Advanced Data Exchange Corporation, a Delaware
corporation; and
(v) Soundbreak.com, Inc., a Delaware corporation.
(b) all of the rights, title and interests attributed to the Acacia
Technologies Group pursuant to the resolutions of the Board entitled "Acacia
Technologies Stock Attributed Interests" approved concurrently with the Board's
approval of these Common Stock Policies; and
(c) any subsidiaries or equity investments of, or successors to, the
companies or interests identified in the foregoing clauses (a) and (b).
It is the current intention of the Corporation to (i) attribute all of
the Corporation's present and future interests worldwide in its media
technologies businesses to the Acacia Technologies Group and (ii) pursue a media
technologies business through the Acacia Technologies Group.
3. FIDUCIARY AND MANAGEMENT RESPONSIBILITIES
Because both the CombiMatrix Stock and the Acacia Technologies Stock
will be issued by the Corporation, the Corporation' directors and officers will
have the same fiduciary duties to holders of CombiMatrix Stock and Acacia
Technologies Stock that they currently have to the holders of the Corporation's
existing common stock. Under Delaware law, absent an abuse of discretion, a
director or officer will be deemed to have satisfied his of her fiduciary duties
to the Corporation and its stockholders if that person is disinterested and acts
in accordance with his or her good faith business judgment in the interests of
the Corporation and all of its stockholders as a whole. The Board and the
Corporation's chief executive officer, in establishing policies with regard to
intercompany matters such as business transactions between Groups or between the
Corporation and the Groups and allocations of assets, liabilities, debt,
corporate overhead, taxes, interest, corporate opportunities and other matters,
will consider various factors and information which could benefit or cause
detriment to the stockholders of the respective Groups and will make
determinations in the best interests of the Corporation and all of its
stockholders as a whole.
The officers of the Corporation will have the same duties and
responsibilities for the management of the assets and businesses which comprise
the CombiMatrix Group and Acacia Technologies Group following the
recapitalization as they have now.
C-2
Members of the Corporation's Board will comprise a majority of the
members of boards of directors of each of the Corporation's majority-owned
subsidiaries.
4. DIVIDEND POLICY
Pursuant to the Certificate of Incorporation, (i) dividends on
CombiMatrix Stock may be declared and paid only out of the lesser of (x) the
funds of the Corporation legally available therefor and (y) the CombiMatrix
Group Available Dividend Amount and (ii) dividends on Acacia Technologies Stock
may be declared and paid only out of the lesser of (x) the funds of the
Corporation legally available therefor and (y) the Acacia Technologies Group
Available Dividend Amount.
Subject to the foregoing limitations and any preferential rights of any
series of preferred stock of the Corporation, holders of shares of Common Stock
of either class will be entitled to receive dividends on such stock when, as and
if authorized and declared by the Board. The payment of dividends on the Common
Stock will be a business decision to be made by the Board from time to time
based upon the results of operations, financial condition and capital
requirements of the Corporation and such other factors as the Board considers
relevant. Payment of dividends on the Common Stock may be restricted by loan
agreements, indentures and other transactions entered into by the Corporation
from time to time.
Pursuant to the Certificate of Incorporation, the Board may at any time
declare and pay dividends exclusively on Acacia Technologies Stock, exclusively
on CombiMatrix Stock or on both such classes in equal or unequal amounts,
notwithstanding the relative amounts of the Acacia Technologies Group Available
Dividend Amount and the CombiMatrix Group Available Dividend Amount, the amount
of dividends previously declared on each class of Common Stock, the respective
voting or liquidation rights of each class of Common Stock or any other factor.
In light of the fact that both the CombiMatrix Group and the Acacia
Technologies Group are expected to require significant capital commitments to
finance their operations and fund their future growth, the Corporation does not
expect to pay any dividends on shares of CombiMatrix Stock or Acacia
Technologies Stock for the foreseeable future.
In making its dividend decisions regarding CombiMatrix Stock and Acacia
Technologies Stock, the Board will rely on the respective financial statements
of the CombiMatrix Group and the Acacia Technologies Group. The method of
calculating the earnings (loss) attributable to the CombiMatrix Group and the
Acacia Technologies Group is set forth in the Certificate of Incorporation.
5. TREASURY AND CASH MANAGEMENT POLICIES
The Corporation will manage most treasury activities on a
de-centralized basis, with each Group separately managing its own treasury
activities. After the date on which CombiMatrix Stock and Acacia Technologies
Stock is first issued, the following will apply:
(a) The Corporation will attribute each future issuance of Acacia
Technologies Stock (and the proceeds thereof) to the Acacia Technologies Group
and will attribute each future issuance of CombiMatrix Stock (and the proceeds
thereof) to the CombiMatrix Group;
C-3
(b) The Corporation will attribute each future incurrence or issuance
of external debt or preferred stock (and the proceeds thereof) between the
Groups or entirely to one Group as determined by the Board, based on the extent
to which the Corporation incurs or issues the debt or preferred stock for the
benefit of the CombiMatrix Group and the Acacia Technologies Group;
(c) Dividends on Acacia Technologies Stock will be charged against the
Acacia Technologies Group, and dividends on CombiMatrix Stock will be charged
against the CombiMatrix Group;
(d) Repurchases of Acacia Technologies Stock will be charged against
the Acacia Technologies Group and Repurchases of CombiMatrix Stock will be
charged against the CombiMatrix Group;
(e) As of immediately prior to the first issuance of CombiMatrix Stock
and Acacia Technologies Stock, the CombiMatrix Group and the Acacia Technologies
Group shall be deemed to be allocated the cash and cash equivalents held by the
respective groups as of that date;
(f) The Corporation will account for any cash transfers from the
Corporation to or for the account of a Group, from a Group to or for the account
of the Corporation, or from one Group to or for the account of the other Group
(other than transfers in return for assets or services rendered) as short-term
loans unless (A) the Board determines that a given transfer (or type of
transfer) should be accounted for as a long-term loan, (B) the Board determines
that a given transfer (or type of transfer) should be accounted for as a capital
contribution, or (iii) the Board determines that a given transfer (or type of
transfer) should be accounted for as a return of capital. There are no specific
criteria to determine when the Corporation will account for a cash transfer as a
long-term loan, a capital contribution or a return of capital rather than an
inter-Group revolving credit advance; provided, however, that cash advances from
the Corporation to the Acacia Technologies Group or to the CombiMatrix Group up
to $25 million on a cumulative basis shall be accounted for as short-term or
long-term loans at interest rates at which the Corporation could borrow such
funds and shall not be accounted for as a capital contribution. The Board will
make such a determination in the exercise of its business judgment at the time
of such transfer based upon all relevant circumstances. Factors the Board may
consider include, without limitation, the current and projected capital
structure of each Group; the financing needs and objectives of the recipient
Group; the availability, cost and time associated with alternative financing
sources; and prevailing interest rates and general economic conditions; and
(g) Any cash transfers accounted for as short-term loans will bear
interest at the rate at which the Corporation could borrow such funds. In
addition, any cash transfers accounted for as a long-term loan will have
interest rates, amortization, maturity, redemption and other terms that reflect
the then-prevailing terms on which the Corporation could borrow such funds.
6. CORPORATE GENERAL AND ADMINISTRATIVE SERVICES AND FACILITIES
The Corporation will allocate the cost of corporate general and
administrative services and facilities between the Groups generally based upon
utilization. Where determinations based on utilization alone are impracticable,
the Corporation will use other methods and criteria that management believes to
C-4
be equitable and to provide a reasonable estimate of the cost attributable to
each Group. Except as otherwise determined by management, the allocated costs of
providing such services and facilities will include, without limitation, the
following:
(a) all costs and expenses of personnel employed in connection with
such services and facilities, including, without limitation, all direct costs of
such personnel, such as payroll, payroll taxes and fringe benefit costs
(calculated at the appropriate annual composite rate therefor);
(b) all overhead costs and expenses directly related to such personnel
and the services or facilities provided by them (including, without limitation,
departmental, divisional and administrative overhead and a reasonable allocation
of capital charges for assets used to provide such services or facilities,
including, without limitation, facilities, equipment and training); and
(c) all materials used in connection with such services or facilities,
billed at their net cost to the provider of the services or facilities plus all
overhead costs and expenses related to such materials (including, without
limitation, departmental, divisional and administrative overhead and a
reasonable allocation of capital charges for assets used to provide such
materials).
Except as may otherwise be specifically provided pursuant to the terms
of any agreements among the Corporation and the Groups or any resolutions of the
Board, the corporate general and administrative services and facilities to be
allocated between the Groups will include, without limitation, the following:
(i) legal services;
(ii) accounting services (tax and financial);
(iii) insurance and deductibles payable in connection
therewith;
(iv) employee benefit plans and administration thereof;
(v) investor relations;
(vi) shareholder services; and
(vii) services relating to the board of directors.
7. TAXES
The Corporation will determine its federal income taxes and the federal
income taxes of its subsidiaries which own assets allocated between the Groups
on a consolidated basis. The Corporation will allocate consolidated federal
income tax provisions and related tax payments or refunds between the Groups
based principally on the taxable income and tax credits directly attributable to
each Group. Such allocations will reflect each Group's contribution, whether
positive or negative, to the Corporation's consolidated federal taxable income
and consolidated federal tax liability and tax credit position. We will credit
C-5
tax benefits that can not be used by the Group generating those benefits but can
be used on a consolidated basis to the Group that generated such benefits.
Inter-Group transactions will be treated as taxed as if each Group was a
stand-alone company.
8. FINANCIAL STATEMENTS
The CombiMatrix Group and the Acacia Technologies Group will prepare
financial statements in accordance with generally accepted accounting
principles, consistently applied, and these financial statements, taken
together, will comprise all of the accounts included in the Corporation's
corresponding consolidated financial statements. The financial statements of
each of the CombiMatrix Group and the Acacia Technologies Group will reflect the
financial condition, results of operations and cash flows of the businesses
included therein.
Group financial statements will also include allocated portions of
debt, interest, corporate overhead and costs of administrative shared services
and taxes. The Corporation will make these allocations for the purpose of
preparing each Group's financial statements; however, holders of CombiMatrix
Stock and Acacia Technologies Stock will continue to be subject to all of the
risks associated with an investment in the Corporation and all of its
businesses, assets and liabilities.
9. CORPORATE OPPORTUNITIES
Taking into account the provisions of the last paragraph of Sections 1
and 2 hereof, the Board will allocate any business opportunities and operations,
any acquired assets and businesses and any assumed liabilities between the
Acacia Technologies Group and the CombiMatrix Group, in whole or in part, as it
considers to be in the best interests of the Corporation and its stockholders as
a whole and as contemplated by the provisions of these Common Stock Policies. To
the extent a business opportunity or operation, an acquired asset or business,
or an assumed liability would be suitable to be undertaken by or allocated to
either Group, it will be allocated by the Board in its good faith business
judgment or in accordance with Delaware law and the procedures adopted by the
Board from time to time to ensure that decisions will be made in the best
interests of the Corporation and its stockholders as a whole. Any such
allocation may involve the consideration of a number of factors that the Board
determines to be relevant, including, without limitation, whether a particular
corporate opportunity is principally related to the business of the CombiMatrix
Group or the Acacia Technologies Group; whether one Group, because of its
managerial or operational expertise, will be better positioned to undertake the
corporate opportunity; and existing contractual agreements and restrictions.
10. INTER-GROUP CONTRACTS AND AGREEMENTS
The terms of all current and future material transactions,
relationships and other matters between the Acacia Technologies Group and the
CombiMatrix Group, including those as to which the Groups may have potentially
divergent interests, will be determined on a basis that the Board, or management
following guidelines or principles established by the Board, considers to be in
the best interests of the Corporation and its stockholders as a whole.
Each Group will have free access to all of the Corporation's technology
and know-how, excluding products and services of the other Group, that may be
useful in that Group's business, subject to obligations and limitations
C-6
applicable to the Corporation and to such exceptions that the Board may
determine. The Groups will consult with each other on a regular basis concerning
technology issues that affect both Groups.
11. COMMON STOCK COMMITTEE
The Corporation's bylaws will provide for a standing committee of the
Board to be known as the Common Stock Committee. The Common Stock Committee will
have and exercise such powers, authority and responsibilities as the Board may
delegate to such Committee, which will initially include authority to (i)
interpret, make determinations under, and oversee the implementation of these
Common Stock Policies, other than as they relate to dividends, with respect to
which all determinations will be made solely by the Board, (ii) adopt additional
general policies governing the relationships between the two Groups, and (iii)
engage the services of accountants, investment bankers, appraisers, attorneys
and other service providers to assist in discharging its duties. In making
determinations in connection with the Common Stock Policies, the members of the
Board and the Common Stock Committee will act in a fiduciary capacity and
pursuant to legal guidance concerning their respective obligations under
applicable law.
12. COMMON STOCK OWNERSHIP OF DIRECTORS AND OFFICERS
The Board currently intends that its members and officers of the
Corporation, over time, hold shares of Acacia Technologies Stock and CombiMatrix
Stock (or options or rights therefor). The Board will periodically monitor the
ownership of shares of CombiMatrix Stock and shares of Acacia Technologies Stock
by directors and senior officers of the Corporation and option grants to them so
that their interests are generally aligned with the two classes of common stock
and with their duty to act in the best interests of the Corporation and its
stockholders as a whole. However, because of the anticipated differences in
trading values between CombiMatrix Stock and the Acacia Technologies Stock, the
actual value of their interests in the CombiMatrix Stock and Acacia Technologies
Stock will vary significantly. Accordingly, it is possible that directors or
senior officers could favor one Group over the other due to their stock and
option holdings.
C-7
ANNEX D
-------
ACACIA RESEARCH CORPORATION
2002 ACACIA TECHNOLOGIES STOCK INCENTIVE PLAN
ARTICLE ONE
GENERAL PROVISIONS
I. PURPOSE OF THE PLAN
This 2002 Acacia Technologies Stock Incentive Plan is intended to
promote the interests of Acacia Research Corporation, a Delaware corporation, by
providing eligible persons in the Corporation's Service with the opportunity to
acquire a proprietary interest, or otherwise increase their proprietary
interest, in the Corporation as an incentive for them to remain in such Service.
Capitalized terms shall have the meanings assigned to such terms in the
attached Appendix.
II. STRUCTURE OF THE PLAN
A. The Plan shall be divided into four separate equity incentive
programs:
- the Discretionary Option Grant Program under which eligible
persons may, at the discretion of the Plan Administrator, be granted options to
purchase shares of Common Stock,
- the Stock Issuance Program under which eligible persons may,
at the discretion of the Plan Administrator, be issued shares of Common Stock
directly, either through the immediate purchase of such shares or as a bonus for
services rendered the Corporation (or any Parent or Subsidiary),
- the Automatic Option Grant Program under which eligible
non-employee Board members shall automatically receive option grants at
designated intervals over their period of continued Board Service, and
- the Director Fee Option Grant Program under which
non-employee Board members may elect to have all or any portion of their annual
retainer fee otherwise payable in cash applied to a special stock option grant.
B. The provisions of Articles One and Six shall apply to all equity
incentive programs under the Plan and shall govern the interests of all persons
under the Plan.
III. ADMINISTRATION OF THE PLAN
A. The Committee shall have sole and exclusive authority to administer
the Discretionary Option Grant and Stock Issuance Programs with respect to
D-1
Section 16 Insiders. Administration of the Discretionary Option Grant and Stock
Issuance Programs with respect to all other persons eligible to participate in
those programs may, at the Board's discretion, be vested in the Committee, or
the Board may retain the power to administer those programs with respect to all
such persons. However, any discretionary option grants or stock issuances to
members of the Committee must be authorized and approved by a disinterested
majority of the Board.
B. Members of the Committee shall serve for such period of time as the
Board may determine and may be removed by the Board at any time.
C. The Plan Administrator shall, within the scope of its administrative
functions under the Plan, have full power and authority (subject to the
provisions of the Plan) to establish such rules and regulations as it may deem
appropriate for proper administration of the Discretionary Option Grant and
Stock Issuance Programs and to make such determinations under, and issue such
interpretations of, the provisions of those programs and any outstanding options
or stock issuances thereunder as it may deem necessary or advisable. Decisions
of the Plan Administrator within the scope of its administrative functions under
the Plan shall be final and binding on all parties who have an interest in the
Discretionary Option Grant and Stock Issuance Programs under its jurisdiction or
any stock option or stock issuance thereunder.
D. Service on the Committee shall constitute Service as a Board member,
and members of each such committee shall accordingly be entitled to full
indemnification and reimbursement as Board members for their service on such
committee. No member of the Committee shall be liable for any act or omission
made in good faith with respect to the Plan or any option grants or stock
issuances under the Plan.
E. Administration of the Automatic Option Grant and Director Fee Option
Grant Programs shall be self-executing in accordance with the terms of those
programs, and no Plan Administrator shall exercise any discretionary functions
with respect to any option grants or stock issuances made under those programs.
IV. ELIGIBILITY
A. The persons eligible to participate in the Discretionary Option
Grant and Stock Issuance Programs are as follows:
(i) Employees,
(ii) non-employee members of the Board or the board of
directors of any Parent or Subsidiary, and
(iii) consultants and other independent advisors who provide
services to the Corporation (or any Parent or Subsidiary).
B. The Plan Administrator shall, within the scope of its administrative
jurisdiction under the Plan, have full authority to determine, (i) with respect
to the option grants under the Discretionary Option Grant Program, which
eligible persons are to receive such grants, the time or times when those grants
are to be made, the number of shares to be covered by each such grant, the
D-2
status of the granted option as either an Incentive Option or a Non-Statutory
Option, if, and the extent to which, each option is to be exercisable at a
different time or times than those times set forth in Section I.B.1. of Article
Two of the Plan, the vesting schedule (if any) applicable to the option shares
and the maximum term for which the option is to remain outstanding and (ii) with
respect to stock issuances under the Stock Issuance Program, which eligible
persons are to receive such issuances, the time or times when the issuances are
to be made, the number of shares to be issued to each Participant, the vesting
schedule (if any) applicable to the issued shares and the consideration for such
shares.
C. The Plan Administrator shall have the absolute discretion either to
grant options in accordance with the Discretionary Option Grant Program or to
effect stock issuances in accordance with the Stock Issuance Program.
D. The individuals who shall be eligible to participate in the
Automatic Option Grant Program shall be limited to (i) those individuals who
first become non-employee Board members after the Plan Effective Date, whether
through appointment by the Board or election by the Corporation's stockholders,
and (ii) those individuals who continue to serve as non-employee Board members
on the first business day in each calendar year following the Plan Effective
Date and during the term of the Plan, including any individuals who first became
non-employee Board members prior to such Plan Effective Date. A non-employee
Board member who has previously been in the employ of the Corporation (or any
Parent or Subsidiary) shall not be eligible to receive an option grant under the
Automatic Option Grant Program at the time he or she first becomes a
non-employee Board member, but shall be eligible to receive periodic option
grants under the Automatic Option Grant Program while he or she continues to
serve as a non-employee Board member.
E. All non-employee Board members shall be eligible to participate in
the Director Fee Option Grant Program.
V. STOCK SUBJECT TO THE PLAN
A. The stock issuable under the Plan shall be shares of authorized but
unissued or reacquired Common Stock, including shares repurchased by the
Corporation on the open market. The number of shares of Common Stock initially
reserved for issuance over the term of the Plan shall not exceed ___________
shares. Such authorized reserve consists of (i) the number of shares which
remain available for issuance, as of the Plan Effective Date, under the
Predecessor Plan as last approved by the Corporation's stockholders (___________
shares), including the shares subject to the outstanding options to be
incorporated into the Plan and the additional shares which would otherwise be
available for future grant, plus (ii) an increase of _______ shares authorized
by the Board but subject to stockholder approval prior to the Plan Effective
Date.
B. The number of shares of Common Stock available for issuance under
the Plan shall automatically increase on the first trading day of January each
calendar year during the term of the Plan, beginning with calendar year 2003, by
an amount equal to three percent (3%) of the total number of shares of Common
Stock outstanding on the last trading day in December of the immediately
preceding calendar year, but in no event shall any such annual increase exceed
D-3
500,000 shares and in no event shall the aggregate number of shares of Common
Stock available for issuance under the Plan (as adjusted for all such annual
increases) exceed 20,000,000 shares.
C. No one person participating in the Plan may receive stock options,
separately exercisable stock appreciation rights and direct stock issuances or
share right awards for more than 500,000 shares of Common Stock in the aggregate
per calendar year.
D. Shares of Common Stock subject to outstanding options (including
options incorporated into this Plan from the Predecessor Plan) shall be
available for subsequent issuance under the Plan to the extent (i) those options
expire or terminate for any reason prior to exercise in full or (ii) the options
are cancelled in accordance with the cancellation-regrant provisions of Article
Two. Unvested shares issued under the Plan and subsequently cancelled or
repurchased by the Corporation at the original exercise or issue price paid per
share, pursuant to the Corporation's repurchase rights under the Plan, shall be
added back to the number of shares of Common Stock reserved for issuance under
the Plan and shall accordingly be available for reissuance through one or more
subsequent option grants or direct stock issuances under the Plan. In addition,
should the exercise price of an option under the Plan be paid with shares of
Common Stock or should shares of Common Stock otherwise issuable under the Plan
be withheld by the Corporation in satisfaction of the withholding taxes incurred
in connection with the exercise of an option or the vesting of a stock issuance
under the Plan, then the number of shares of Common Stock available for issuance
under the Plan shall be reduced only by the net number of shares of Common Stock
issued to the holder of such option or stock issuance, and not by the gross
number of shares for which the option is exercised or which vest under the stock
issuance. However, shares of Common Stock underlying one or more stock
appreciation rights exercised under Section V of Article Two, Section II.D of
Article Four or Section III.C of Article Five of the Plan shall not be available
for subsequent issuance under the Plan.
E. If any change is made to the Common Stock by reason of any stock
split, stock dividend, recapitalization, combination of shares, exchange of
shares or other change affecting the outstanding Common Stock as a class without
the Corporation's receipt of consideration, appropriate adjustments shall be
made by the Plan Administrator to (i) the maximum number and/or class of
securities issuable under the Plan, (ii) the maximum number and/or class of
securities for which any one person may be granted stock options, separately
exercisable stock appreciation rights and direct stock issuances or share right
awards under the Plan per calendar year, (iii) the number and/or class of
securities for which grants are subsequently to be made under the Automatic
Option Grant Program to new and continuing non-employee Board members, (iv) the
number and/or class of securities and the exercise price per share in effect
under each outstanding option under the Plan, (v) the number and/or class of
securities and exercise price per share in effect under each outstanding option
incorporated into this Plan from the Predecessor Plan, and (vi) the maximum
number and/or class of securities by which the share reserve is to increase
automatically each calendar year pursuant to the provisions of Section V.B. of
this Article One. Such adjustments to the outstanding options are to be effected
in a manner which shall preclude the enlargement or dilution of rights and
benefits under such options. The adjustments determined by the Plan
Administrator shall be final, binding and conclusive.
D-4
ARTICLE TWO
DISCRETIONARY OPTION GRANT PROGRAM
I. OPTION TERMS
Each option shall be evidenced by one or more documents in the form
approved by the Plan Administrator; provided, however, that each such document
shall comply with the terms specified below. Each document evidencing an
Incentive Option shall, in addition, be subject to the provisions of the Plan
applicable to such options.
A. EXERCISE PRICE.
1. The exercise price per share shall be fixed by the Plan
Administrator but shall not be less than eighty-five percent (85%) of
the Fair Market Value per share of Common Stock on the option grant
date.
2. The exercise price shall become immediately due upon
exercise of the option and shall, subject to the provisions of the
documents evidencing the option, be payable in one or more of the forms
specified below:
(i) cash or check made payable to the Corporation, or
(ii) shares of Common Stock held for the requisite
period necessary to avoid a charge to the Corporation's
earnings for financial reporting purposes and valued at Fair
Market Value on the Exercise Date, or
(iii) to the extent the option is exercised for
vested shares, through a special sale and remittance procedure
pursuant to which the Optionee shall concurrently provide
irrevocable instructions to (a) a Corporation-designated
brokerage firm to effect the immediate sale of the purchased
shares and remit to the Corporation, out of the sale proceeds
available on the settlement date, sufficient funds to cover
the aggregate exercise price payable for the purchased shares
plus all applicable Federal, state and local income and
employment taxes required to be withheld by the Corporation by
reason of such exercise and (b) the Corporation to deliver the
certificates for the purchased shares directly to such
brokerage firm in order to complete the sale.
Except to the extent such sale and remittance procedure is utilized,
payment of the exercise price for the purchased shares must be made on the
Exercise Date.
B. EXERCISE AND TERM OF OPTIONS.
1. Unless otherwise determined by the Plan Administrator and
set forth in the documents evidencing the option:
(i) Each option granted under the Discretionary
Option Grant Program to an Optionee in connection with the
D-5
commencement of the Optionee's Service with the Corporation
(or any Parent or Subsidiary) shall become exercisable for
one-third (1/3) of the shares of Common Stock subject to such
option upon such Optionee's completion of one year of Service
measured from the option grant date and shall become
exercisable for the balance of the option shares in
twenty-four (24) successive equal monthly installments upon
the Optionee's completion of each additional month of Service
over the 24-month period measured from the first year
anniversary of the grant date.
(ii) Each option granted under the Discretionary
Option Grant Program other than an option described in
subparagraph (i) immediately above shall become exercisable
for one-sixth (1/6) of the shares of Common Stock subject to
the option upon such Optionee's completion of six (6) months
of Service measured from the option grant date and shall
become exercisable for the balance of the option shares in
thirty (30) successive equal monthly installments upon the
Optionee's completion of each additional month of Service over
the 30-month period measured from the 6-month anniversary of
the grant date.
2. Notwithstanding any other provision of the Plan, no option
shall have a term in excess of ten (10) years measured from the option
grant date.
C. EFFECT OF TERMINATION OF SERVICE.
1. The following provisions shall govern the exercise of any
options held by the Optionee at the time of cessation of Service or
death:
(i) Any option outstanding at the time of the
Optionee's cessation of Service for any reason shall remain
exercisable for such period of time thereafter as shall be
determined by the Plan Administrator and set forth in the
documents evidencing the option, but no such option shall be
exercisable after the expiration of the option term.
(ii) Any option held by the Optionee at the time of
death and exercisable in whole or in part at that time may be
subsequently exercised by the personal representative of the
Optionee's estate or by the person or persons to whom the
option is transferred pursuant to the Optionee's will or the
laws of descent and distribution or by the Optionee's
designated beneficiary or beneficiaries of that option.
(iii) Should the Optionee's Service be terminated for
Misconduct or should the Optionee otherwise engage in
Misconduct while holding one or more outstanding options under
this Article Two, then all those options shall terminate
immediately and cease to be outstanding.
(iv) During the applicable post-Service exercise
period, the option may not be exercised in the aggregate for
more than the number of vested shares for which the option is
exercisable on the date of the Optionee's cessation of
Service. Upon the expiration of the applicable exercise period
or (if earlier) upon the expiration of the option term, the
option shall terminate and cease to be outstanding for any
vested shares for which the option has not been exercised.
D-6
However, the option shall, immediately upon the Optionee's
cessation of Service, terminate and cease to be outstanding to
the extent the option is not otherwise at that time
exercisable for vested shares.
2. The Plan Administrator shall have complete discretion,
exercisable either at the time an option is granted or at any time
while the option remains outstanding, to:
(i) extend the period of time for which the option is
to remain exercisable following the Optionee's cessation of
Service from the limited exercise period otherwise in effect
for that option to such greater period of time as the Plan
Administrator shall deem appropriate, but in no event beyond
the expiration of the option term, and/or
(ii) permit the option to be exercised, during the
applicable post-Service exercise period, not only with respect
to the number of vested shares of Common Stock for which such
option is exercisable at the time of the Optionee's cessation
of Service but also with respect to one or more additional
installments in which the Optionee would have vested had the
Optionee continued in Service.
D. STOCKHOLDER RIGHTS. The holder of an option shall have no
stockholder rights with respect to the shares subject to the option until such
person shall have exercised the option, paid the exercise price and become a
holder of record of the purchased shares.
E. REPURCHASE RIGHTS. The Plan Administrator shall have the discretion
to grant options which are exercisable for unvested shares of Common Stock.
Should the Optionee cease Service while holding such unvested shares, the
Corporation shall have the right to repurchase, at the exercise price paid per
share, any or all of those unvested shares. The terms upon which such repurchase
right shall be exercisable (including the period and procedure for exercise and
the appropriate vesting schedule for the purchased shares) shall be established
by the Plan Administrator and set forth in the document evidencing such
repurchase right.
F. LIMITED TRANSFERABILITY OF OPTIONS. During the lifetime of the
Optionee, Incentive Options shall be exercisable only by the Optionee and shall
not be assignable or transferable other than by will or the laws of descent and
distribution following the Optionee's death. Non-Statutory Options shall be
subject to the same limitation, except that a Non-Statutory Option may be
assigned in whole or in part during the Optionee's lifetime to one or more of
the Optionee's Immediate Family or to a trust established exclusively for the
Optionee or one or more members of the Optionee's Immediate Family members or to
Optionee's former spouse, to the extent such assignment is in connection with
the Optionee's estate plan or pursuant to a domestic relations order. The
assigned portion may only be exercised by the person or persons who acquire a
proprietary interest in the option pursuant to the assignment. The terms
applicable to the assigned portion shall be the same as those in effect for the
option immediately prior to such assignment and shall be set forth in such
documents issued to the assignee as the Plan Administrator may deem appropriate.
Notwithstanding the foregoing, the Optionee may also designate one or more
persons as the beneficiary or beneficiaries of his or her outstanding options
under this Article Two, and those options shall, in accordance with such
D-7
designation, automatically be transferred to such beneficiary or beneficiaries
upon the Optionee's death while holding those options. Such beneficiary or
beneficiaries shall take the transferred options subject to all the terms and
conditions of the applicable agreement evidencing each such transferred option,
including (without limitation) the limited time period during which the option
may be exercised following the Optionee's death.
II. INCENTIVE OPTIONS
The terms specified below shall be applicable to all Incentive Options.
Except as modified by the provisions of this Section II, all the provisions of
Articles One, Two and Six shall be applicable to Incentive Options. Options
which are specifically designated as Non-Statutory Options when issued under the
Plan shall not be subject to the terms of this Section II.
A. ELIGIBILITY. Incentive Options may only be granted to Employees.
B. EXERCISE PRICE. The exercise price per share shall not be less than
one hundred percent (100%) of the Fair Market Value per share of Common Stock on
the option grant date.
C. DOLLAR LIMITATION. The aggregate Fair Market Value of the shares of
Common Stock (determined as of the respective date or dates of grant) for which
one or more options granted to any Employee under the Plan (or any other option
plan of the Corporation or any Parent or Subsidiary) may for the first time
become exercisable as Incentive Options during any one calendar year shall not
exceed the sum of One Hundred Thousand Dollars ($100,000). To the extent the
Employee holds two (2) or more such options which become exercisable for the
first time in the same calendar year, the foregoing limitation on the
exercisability of such options as Incentive Options shall be applied on the
basis of the order in which such options are granted.
D. FAILURE TO QUALIFY AS INCENTIVE OPTION. To the extent that any
option governed by this Plan does not qualify as an Incentive Option, by reason
of the dollar limitation described in Section II.C of this Article Two or for
any other reason, such option shall be exercisable as a Non-Statutory Option
under the Federal tax laws.
E. 10% STOCKHOLDER. If any Employee to whom an Incentive Option is
granted is a 10% Stockholder, then the exercise price per share shall not be
less than one hundred ten percent (110%) of the Fair Market Value per share of
Common Stock on the option grant date, and the option term shall not exceed five
(5) years measured from the option grant date.
III. CHANGE IN CONTROL/HOSTILE TAKE-OVER
A. Unless otherwise determined by the Plan Administrator and expressly
set forth in the documents evidencing the option, each option outstanding under
the Discretionary Option Grant Program at the time of a Change in Control but
not otherwise exercisable for all the shares of Common Stock at that time
subject to such option shall automatically accelerate so that each such option
shall, immediately prior to the effective date of the Change in Control, become
exercisable for all the shares of Common Stock at the time subject to such
option and may be exercised for any or all of those shares as fully vested
D-8
shares of Common Stock, regardless of whether such options are assumed by the
successor corporation or otherwise continued in force and effect pursuant to the
Change in Control transaction.
B. All of the Corporation's outstanding repurchase rights under the
Discretionary Option Grant Program shall also terminate automatically, and the
shares of Common Stock subject to those terminated rights shall immediately vest
in full, in the event of any Change in Control, except to the extent such
accelerated vesting is precluded by limitations imposed by the Plan
Administrator at the time the repurchase right is issued.
C. Immediately following the consummation of the Change in Control, all
outstanding options shall terminate and cease to be outstanding, except to the
extent assumed by the successor corporation (or parent thereof) or otherwise
expressly continued in full force and effect pursuant to the terms of the Change
in Control transaction.
D. Each option which is assumed in connection with a Change in Control
or otherwise continued in effect shall be appropriately adjusted, immediately
after such Change in Control, to apply to the number and class of securities
which would have been issuable to the Optionee in consummation of such Change in
Control had the option been exercised immediately prior to such Change in
Control. Appropriate adjustments to reflect such Change in Control shall also be
made to (i) the exercise price payable per share under each outstanding option,
provided the aggregate exercise price payable for such securities shall remain
the same, (ii) the maximum number and/or class of securities available for
issuance over the remaining term of the Plan, (iii) the maximum number and/or
class of securities by which the share reserve is to increase each calendar year
pursuant to the automatic share increase provisions of the Plan and (iv) the
maximum number and/or class of securities for which any one person may be
granted options, separately exercisable stock appreciation rights and direct
stock issuances or share right awards under the Plan per calendar year. To the
extent the actual holders of the Corporation's outstanding Common Stock receive
cash consideration for their Common Stock in consummation of the Change in
Control transaction, the successor corporation may, in connection with the
assumption of the outstanding options under the Discretionary Option Grant
Program, substitute one or more shares of its own common stock with a fair
market value equivalent to the cash consideration paid per share of Common Stock
in such Change in Control transaction.
E. Unless otherwise determined by the Plan Administrator and expressly
set forth in the documents evidencing the option, each option outstanding under
the Discretionary Option Grant Program at the time of a Hostile Take-Over but
not otherwise exercisable for all the shares of Common Stock subject to such
option at that time shall, immediately prior to the effective date of a Hostile
Take-Over, automatically vest and become exercisable for all the shares of
Common Stock at that time subject to such options on an accelerated basis and
may be exercised for any or all of such shares as fully vested shares of Common
Stock. In addition, all of the Corporation's repurchase rights under the
Discretionary Option Grant Program shall terminate automatically upon the
consummation of such Hostile Take-Over, and the shares subject to those
terminated rights shall thereupon immediately vest in full, except to the extent
such accelerated vesting is precluded by limitations imposed by the Plan
Administrator at the time the repurchase right is issued. Each option so
accelerated shall remain exercisable for fully vested shares of Common Stock
until the expiration or sooner termination of the option term.
D-9
F. The portion of any Incentive Option accelerated in connection with a
Change in Control or Hostile Take-Over shall remain exercisable as an Incentive
Option only to the extent the applicable One Hundred Thousand Dollar ($100,000)
limitation is not exceeded. To the extent such dollar limitation is exceeded,
the accelerated portion of such option shall be exercisable as a Non-Statutory
Option under the Federal tax laws.
G. The grant of options under the Discretionary Option Grant Program
shall in no way affect the right of the Corporation to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets.
IV. CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at any time
and from time to time, with the consent of the affected option holders, the
cancellation of any or all outstanding options under the Discretionary Option
Grant Program (including outstanding options incorporated from the Predecessor
Plans) and to grant in substitution new options covering the same or a different
number of shares of Common Stock but with an exercise price per share calculated
based upon the Fair Market Value per share of Common Stock on the new grant
date.
V. STOCK APPRECIATION RIGHTS
A. The Plan Administrator shall have full power and authority to grant
to selected Optionees tandem stock appreciation rights and/or limited stock
appreciation rights.
B. The following terms shall govern the grant and exercise of tandem
stock appreciation rights:
(i) One or more Optionees may be granted the right,
exercisable upon such terms as the Plan Administrator may
establish, to elect between the exercise of the underlying
option for shares of Common Stock and the surrender of that
option in exchange for a payment from the Corporation in an
amount equal to the excess of (a) the Fair Market Value (on
the option surrender date) of the number of shares in which
the Optionee is at the time vested under the surrendered
option (or surrendered portion thereof) over (b) the aggregate
exercise price payable for such shares.
(ii) No such option surrender shall be effective
unless it is approved by the Plan Administrator, either at the
time of the actual option surrender or at any earlier time. If
the surrender is so approved, then the payment to which the
Optionee shall be entitled may be made in shares of Common
Stock valued at Fair Market Value on the option surrender
date, in cash, or partly in shares and partly in cash, as the
Plan Administrator shall in its sole discretion deem
appropriate.
(iii) If the surrender of an option is not approved
by the Plan Administrator, then the Optionee shall retain
whatever rights the Optionee had under the surrendered option
(or surrendered portion thereof) on the option surrender date
and may exercise such rights at any time prior to the later of
(a) five (5) business days after the receipt of the rejection
D-10
notice or (b) the last day on which the option is otherwise
exercisable in accordance with the terms of the documents
evidencing such option, but in no event may such rights be
exercised more than ten (10) years after the option grant
date.
C. The following terms shall govern the grant and exercise of limited
stock appreciation rights:
(i) One or more Section 16 Insiders may be granted
limited stock appreciation rights with respect to their
outstanding options.
(ii) Upon the occurrence of a Hostile Take-Over, each
individual holding one or more options with such a limited
stock appreciation right shall have the unconditional right
(exercisable for a thirty (30)-day period following such
Hostile Take-Over) to surrender each such option (or any
portion thereof) to the Corporation. In return for the
surrendered option, the Optionee shall receive a cash payment
from the Corporation in an amount equal to the excess of (A)
the Take-Over Price of the shares of Common Stock at the time
subject to such option (whether or not the option is otherwise
vested and exercisable for those shares) over (B) the
aggregate exercise price payable for those shares. Such cash
payment shall be paid within five (5) days following the
option surrender date.
(iii) At the time such limited stock appreciation
right is granted, the Plan Administrator shall pre-approve any
subsequent exercise of that right in accordance with the terms
of this Paragraph C. Accordingly, no further approval of the
Plan Administrator or the Board shall be required at the time
of the actual option surrender and cash payment.
(iv) The balance of the option (if any) shall remain
outstanding and exercisable in accordance with the documents
evidencing such option.
ARTICLE THREE
STOCK ISSUANCE PROGRAM
I. STOCK ISSUANCE TERMS
Shares of Common Stock may be issued under the Stock Issuance Program
through direct and immediate issuances without any intervening option grants.
Each such stock issuance shall be evidenced by a Stock Issuance Agreement which
complies with the terms specified below. Shares of Common Stock may also be
issued under the Stock Issuance Program pursuant to share right awards which
entitle the recipients to receive those shares upon the attainment of designated
performance goals.
A. PURCHASE PRICE.
D-11
1. The purchase price per share shall be fixed by the Plan
Administrator, but shall not be less than one hundred percent (100%) of
the Fair Market Value per share of Common Stock on the issuance date.
2. Shares of Common Stock may be issued under the Stock
Issuance Program for any of the following items of consideration which
the Plan Administrator may deem appropriate in each individual
instance:
(i) cash or check made payable to the Corporation, or
(ii) past services rendered to the Corporation (or
any Parent or Subsidiary).
B. VESTING PROVISIONS.
1. Shares of Common Stock issued under the Stock Issuance
Program may, in the discretion of the Plan Administrator, be fully and
immediately vested upon issuance or may vest in one or more
installments over the Participant's period of Service or upon
attainment of specified performance objectives. The elements of the
vesting schedule applicable to any unvested shares of Common Stock
issued under the Stock Issuance Program shall be determined by the Plan
Administrator and incorporated into the Stock Issuance Agreement.
Shares of Common Stock may also be issued under the Stock Issuance
Program pursuant to share right awards which entitle the recipients to
receive those shares upon the attainment of designated performance
goals. Upon the attainment of such performance goals, fully vested
shares of Common Stock shall be issued in satisfaction of those share
right awards.
2. Any new, substituted or additional securities or other
property (including money paid other than as a regular cash dividend)
which the Participant may have the right to receive with respect to the
Participant's unvested shares of Common Stock by reason of any stock
dividend, stock split, recapitalization, combination of shares,
exchange of shares or other change affecting the outstanding Common
Stock as a class without the Corporation's receipt of consideration
shall be issued subject to (i) the same vesting requirements applicable
to the Participant's unvested shares of Common Stock and (ii) such
escrow arrangements as the Plan Administrator shall deem appropriate.
3. The Participant shall have full stockholder rights with
respect to any shares of Common Stock issued to the Participant under
the Stock Issuance Program, whether or not the Participant's interest
in those shares is vested. Accordingly, the Participant shall have the
right to vote such shares and to receive any regular cash dividends
paid on such shares.
4. Should the Participant cease to remain in Service while
holding one or more unvested shares of Common Stock issued under the
Stock Issuance Program or should the performance objectives not be
attained with respect to one or more such unvested shares of Common
Stock, then those shares shall be immediately surrendered to the
Corporation for cancellation, and the Participant shall have no further
stockholder rights with respect to those shares. To the extent the
D-12
surrendered shares were previously issued to the Participant for
consideration paid in cash or cash equivalent (including the
Participant's purchase-money indebtedness but not including services
rendered by the Participant), the Corporation shall repay to the
Participant the cash consideration paid for the surrendered shares and
shall cancel the unpaid principal balance of any outstanding
purchase-money note of the Participant attributable to the surrendered
shares.
5. The Plan Administrator may in its discretion waive the
surrender and cancellation of one or more unvested shares of Common
Stock which would otherwise occur upon the cessation of the
Participant's Service or the non-attainment of the performance
objectives applicable to those shares. Such waiver shall result in the
immediate vesting of the Participant's interest in the shares of Common
Stock as to which the waiver applies. Such waiver may be effected at
any time, whether before or after the Participant's cessation of
Service or the attainment or non-attainment of the applicable
performance objectives.
6. Outstanding share right awards under the Stock Issuance
Program shall automatically terminate, and no shares of Common Stock
shall actually be issued in satisfaction of those awards, if the
performance goals or Service requirements established for such awards
are not attained. The Plan Administrator, however, shall have the
discretionary authority to issue shares of Common Stock under one or
more outstanding share right awards as to which the designated
performance goals or Service requirements have not been attained.
II. CHANGE IN CONTROL/HOSTILE TAKE-OVER
All of the Corporation's outstanding repurchase rights under the Stock
Issuance Program shall terminate automatically, and all the shares of Common
Stock subject to those terminated rights shall immediately vest in full, in the
event of any Change in Control or Hostile Take-Over, except to the extent such
accelerated vesting is precluded by other limitations imposed in the Stock
Issuance Agreement.
III. SHARE ESCROW/LEGENDS
Unvested shares may, in the Plan Administrator's discretion, be held in
escrow by the Corporation until the Participant's interest in such shares vests
or may be issued directly to the Participant with restrictive legends on the
certificates evidencing those unvested shares.
ARTICLE FOUR
AUTOMATIC OPTION GRANT PROGRAM
I. OPTION TERMS
A. GRANT DATES. Option grants shall be made on the dates specified
below:
1. Each individual who is first elected or appointed as a
non-employee Board member at any time on or after the Plan Effective
Date shall automatically be granted, on the date of such initial
D-13
election or appointment, a Non-Statutory Option to purchase 20,000
shares of Common Stock, provided that individual has not previously
been in the employ of the Corporation or any Parent or Subsidiary.
2. On the first business day in each calendar year following
the Plan Effective Date and during the term of the Plan, each
non-employee Board member then in office, shall automatically be
granted a Non-Statutory Option to purchase 15,000 shares of Common
Stock, provided such individual has served as a non-employee Board
member for at least six (6) months. There shall be no limit on the
number of such 15,000-share option grants any one non-employee Board
member may receive over his or her period of Board Service, and
non-employee Board members who have previously been in the employ of
the Corporation (or any Parent or Subsidiary) or who joined the Board
prior to the Plan Effective Date shall be eligible to receive one or
more such annual option grants over their period of continued Board
Service.
B. EXERCISE PRICE.
1. The exercise price per share shall be equal to one hundred
percent (100%) of the Fair Market Value per share of Common Stock on
the option grant date.
2. The exercise price shall be payable in one or more of the
alternative forms authorized under the Discretionary Option Grant
Program. Except to the extent the sale and remittance procedure
specified thereunder is utilized, payment of the exercise price for the
purchased shares must be made on the Exercise Date.
C. OPTION TERM. Each option shall have a maximum term of ten (10) years
measured from the option grant date.
D. EXERCISE AND VESTING OF OPTIONS. Each option granted pursuant to
this Automatic Option Grant Program shall become exercisable in a series of four
(4) equal quarterly installments upon the Optionee's completion of each three
(3) months of continuous Service as a Board member over the 12-month period
measured from the option grant date.
E. LIMITED TRANSFERABILITY OF OPTIONS. Each option under this Article
Four may be assigned in whole or in part during the Optionee's lifetime to one
or more members of the Optionee's Immediate Family or to a trust established
exclusively for the Optionee or one or more Members of the Optionee's Immediate
Family or to Optionee's former spouse, to the extent such assignment is in
connection with the Optionee's estate plan or pursuant to domestic relations
order. The assigned portion may only be exercised by the person or persons who
acquire a proprietary interest in the option pursuant to the assignment. The
terms applicable to the assigned portion shall be the same as those in effect
for the option immediately prior to such assignment and shall be set forth in
such documents issued to the assignee as the Plan Administrator may deem
appropriate. The Optionee may also designate one or more persons as the
beneficiary or beneficiaries of his or her outstanding options under this
Article Four, and those options shall, in accordance with such designation,
automatically be transferred to such beneficiary or beneficiaries upon the
D-14
Optionee's death while holding those options. Such beneficiary or beneficiaries
shall take the transferred options subject to all the terms and conditions of
the applicable agreement evidencing each such transferred option, including
(without limitation) the limited time period during which the option may be
exercised following the Optionee's death.
F. TERMINATION OF BOARD SERVICE. The following provisions shall govern
the exercise of any options held by the Optionee at the time the Optionee ceases
to serve as a Board member for any reason:
(i) The Optionee (or, in the event of Optionee's death, the
personal representative of the Optionee's estate or the person or
persons to whom the option is transferred pursuant to the Optionee's
will or the laws of descent and distribution or the designated
beneficiary or beneficiaries of such option) shall have a six (6)-month
period following the date of such cessation of Board Service in which
to exercise each such option.
(ii) During the six (6)-month post-Service exercise period,
the option may not be exercised in the aggregate for more than the
number of vested shares of Common Stock for which the option is
exercisable at the time of the Optionee's cessation of Board Service.
(iii) In no event shall the option remain exercisable after
the expiration of the option term. Upon the expiration of the six
(6)-month post-Service exercise period or (if earlier) upon the
expiration of the option term, the option shall terminate and cease to
be outstanding for any shares for which the option has not been
exercised. However, the option shall, immediately upon the Optionee's
cessation of Board Service for any reason, terminate and cease to be
outstanding to the extent the option is not otherwise at that time
exercisable.
II. CHANGE IN CONTROL/ HOSTILE TAKE-OVER
A. In the event of any Change in Control while the Optionee remains a
Board member, the shares of Common Stock at the time subject to each outstanding
option held by such Optionee under the Automatic Option Grant Program but not
otherwise vested shall automatically accelerate so that each such option shall,
immediately prior to the effective date of the Change in Control, vest and
become exercisable for all the shares of Common Stock at the time subject to
such option and may be exercised for any or all of those shares as fully vested
shares of Common Stock. Immediately following the consummation of the Change in
Control, each automatic option grant shall terminate and cease to be
outstanding, except to the extent assumed by the successor corporation (or
parent thereof) or otherwise continued in full force and effect pursuant to the
express terms of the Change in Control transaction.
B. In the event of a Hostile Take-Over while the Optionee remains a
Board member, the shares of Common Stock at the time subject to each option
outstanding under the Automatic Option Grant Program but not otherwise vested
shall automatically accelerate so that each such option shall, immediately prior
to the effective date of the Hostile Take-Over, vest and become exercisable for
all the shares of Common Stock at the time subject to such option and may be
exercised for any or all of those shares as fully vested shares of Common Stock.
D-15
Each such option shall remain exercisable for such fully-vested option shares
until the expiration or sooner termination of the option term or the surrender
of the option in connection with that Hostile Take-Over.
C. All outstanding repurchase rights under the Automatic Option Grant
Program shall automatically terminate, and the shares of Common Stock subject to
those terminated rights shall immediately vest in full, in the event of any
Change in Control or Hostile Take-Over.
D. Upon the occurrence of a Hostile Take-Over, the Optionee shall have
a thirty (30)-day period in which to surrender to the Corporation each of his or
her outstanding automatic option grants. The Optionee shall in return be
entitled to a cash payment from the Corporation in an amount equal to the excess
of (i) the Take-Over Price of the shares of Common Stock at the time subject to
each surrendered option (whether or not the Optionee is otherwise at the time
vested in those shares) over (ii) the aggregate exercise price payable for such
shares. Such cash payment shall be paid within five (5) days following the
surrender of the option to the Corporation. The Plan Administrator shall, at the
time the option with such limited stock appreciation right is granted under the
Automatic Option Grant Program, pre-approve any subsequent exercise of that
right in accordance with the terms of this Paragraph D. Accordingly, no further
approval of the Plan Administrator or the Board shall be required at the time of
the actual option surrender and cash payment.
E. Each option which is assumed in connection with a Change in Control
or otherwise continued in full force and effect shall be appropriately adjusted,
immediately after such Change in Control, to apply to the number and class of
securities which would have been issuable to the Optionee in consummation of
such Change in Control had the option been exercised immediately prior to such
Change in Control. Appropriate adjustments shall also be made to the exercise
price payable per share under each outstanding option, provided the aggregate
exercise price payable for such securities shall remain the same. To the extent
the actual holders of the Corporation's outstanding Common Stock receive cash
consideration for their Common Stock in consummation of the Change in Control
transaction, the successor corporation may, in connection with the assumption of
the outstanding options under the Automatic Option Grant Program, substitute one
or more shares of its own common stock with a fair market value equivalent to
the cash consideration paid per share of Common Stock in such Change in Control
transaction.
F. The grant of options under the Automatic Option Grant Program shall
in no way affect the right of the Corporation to adjust, reclassify, reorganize
or otherwise change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or
assets.
III. REMAINING TERMS
The remaining terms of each option granted under the Automatic Option
Grant Program shall be the same as the terms in effect for option grants made
under the Discretionary Option Grant Program.
D-16
ARTICLE FIVE
DIRECTOR FEE OPTION GRANT PROGRAM
I. OPTION GRANTS
The Committee shall have the sole and exclusive authority to determine
the calendar year or years for which the Director Fee Option Grant Program is to
be in effect. For each such calendar year the program is in effect, each
non-employee Board member may irrevocably elect to apply all or any portion of
the annual retainer fee otherwise payable in cash for his or her Service on the
Board for that year to the acquisition of a special option grant under this
Director Fee Option Grant Program. Such election must be filed with the
Corporation's Chief Financial Officer prior to the first day of the calendar
year for which the annual retainer fee which is the subject of that election is
otherwise payable. Each non-employee Board member who files such a timely
election shall automatically be granted an option under this Director Fee Option
Grant Program on the first trading day in January in the calendar year for which
the annual retainer fee which is the subject of that election would otherwise be
payable in cash.
II. OPTION TERMS
Each option shall be a Non-Statutory Option governed by the terms and
conditions specified below.
A. EXERCISE PRICE.
1. The exercise price per share shall be thirty-three and
one-third percent (33-1/3%) of the Fair Market Value per share of
Common Stock on the option grant date.
2. The exercise price shall become immediately due upon
exercise of the option and shall be payable in one or more of the
alternative forms authorized under the Discretionary Option Grant
Program. Except to the extent the sale and remittance procedure
specified thereunder is utilized, payment of the exercise price for the
purchased shares must be made on the Exercise Date.
B. NUMBER OF OPTION SHARES. The number of shares of Common Stock
subject to the option shall be determined pursuant to the following formula
(rounded down to the nearest whole number):
X = A / (B x 66-2/3%), where
X is the number of option shares,
A is the portion of the annual retainer fee subject
to the non-employee Board member's election, and
B is the Fair Market Value per share of Common Stock
on the option grant date.
D-17
C. EXERCISE AND TERM OF OPTIONS. The option shall become exercisable in
a series of twelve (12) equal monthly installments upon the Optionee's
completion of each calendar month of Board Service during the calendar year for
which the retainer fee election is in effect. Each option shall have a maximum
term of ten (10) years measured from the option grant date.
D. LIMITED TRANSFERABILITY OF OPTIONS. Each option under this Article
Five may be assigned in whole or in part during the Optionee's lifetime to one
or more members of the Optionee's Immediate Family or to a trust established
exclusively for the Optionee or one or more members of the Optionee's Immediate
Family or to Optionee's former spouse, to the extent such assignment is in
connection with Optionee's estate plan or pursuant to a domestic relations
order. The assigned portion may only be exercised by the person or persons who
acquire a proprietary interest in the option pursuant to the assignment. The
terms applicable to the assigned portion shall be the same as those in effect
for the option immediately prior to such assignment and shall be set forth in
such documents issued to the assignee as the Plan Administrator may deem
appropriate. The Optionee may also designate one or more persons as the
beneficiary or beneficiaries of his or her outstanding options under this
Article Five, and those options shall, in accordance with such designation,
automatically be transferred to such beneficiary or beneficiaries upon the
Optionee's death while holding those options. Such beneficiary or beneficiaries
shall take the transferred options subject to all the terms and conditions of
the applicable agreement evidencing each such transferred option, including
(without limitation) the limited time period during which the option may be
exercised following the Optionee's death.
E. TERMINATION OF BOARD SERVICE. Should the Optionee cease Board
Service for any reason (other than death or Permanent Disability) while holding
one or more options under this Director Fee Option Grant Program, then each such
option shall remain exercisable, for any or all of the shares of Common Stock
for which the option is exercisable at the time of such cessation of Board
Service, until the earlier of (i) the expiration of the ten (10)-year option
term or (ii) the expiration of the three (3)-year period measured from the date
of such cessation of Board Service. However, each option held by the Optionee
under this Director Fee Option Grant Program at the time of his or her cessation
of Board Service shall immediately terminate and cease to remain outstanding
with respect to any and all shares of Common Stock for which the option is not
otherwise at that time exercisable.
F. DEATH OR PERMANENT DISABILITY. Should the Optionee's Service as a
Board member cease by reason of death or Permanent Disability, then each option
held by such Optionee under this Director Fee Option Grant Program shall
immediately become exercisable for all the shares of Common Stock at the time
subject to that option, and the option may be exercised for any or all of those
shares as fully-vested shares of Common Stock until the earlier of (i) the
expiration of the ten (10)-year option term or (ii) the expiration of the three
(3)-year period measured from the date of such cessation of Board Service. In
the event of the Optionee's death while holding such option, the option may be
exercised by the personal representative of the Optionee's estate or by the
person or persons to whom the option is transferred pursuant to the Optionee's
will or the laws of descent and distribution or by the designated beneficiary or
beneficiaries of such option.
D-18
Should the Optionee die after cessation of Board Service but while
holding one or more options under this Director Fee Option Grant Program, then
each such option may be exercised, for any or all of the shares of Common Stock
for which the option is exercisable at the time of the Optionee's cessation of
Board Service (less any shares subsequently purchased by Optionee pursuant to
such option prior to death), by the personal representative of the Optionee's
estate or by the person or persons to whom the option is transferred pursuant to
the Optionee's will or the laws of descent and distribution or by the designated
beneficiary or beneficiaries of such option. Such right of exercise shall lapse,
and the option shall terminate, upon the earlier of (i) the expiration of the
ten (10)-year option term or (ii) the three (3)-year period measured from the
date of the Optionee's cessation of Board Service.
III. CHANGE IN CONTROL/HOSTILE TAKE-OVER
A. In the event of any Change in Control while the Optionee remains a
Board member, each outstanding option held by such Optionee under this Director
Fee Option Grant Program shall automatically accelerate so that each such option
shall, immediately prior to the effective date of the Change in Control, vest
and become exercisable for all the shares of Common Stock at the time subject to
such option and may be exercised for any or all of those shares as fully-vested
shares of Common Stock. Each such outstanding option shall terminate immediately
following the Change in Control, except to the extent assumed by the successor
corporation (or parent thereof) or otherwise continued in full force and effect
pursuant to the express terms of the Change in Control transaction. Any option
so assumed or continued in effect shall remain exercisable for the fully-vested
shares until the earliest to occur of (i) the expiration of the ten (10)-year
option term, (ii) the expiration of the three (3)-year period measured from the
date of the Optionee's cessation of Board Service, (iii) the termination of the
option in connection with a subsequent Change in Control transaction or (iv) the
surrender of the option in connection with a Hostile Take-Over.
B. In the event of a Hostile Take-Over while the Optionee remains a
Board member, each outstanding option held by such Optionee under this Director
Fee Option Grant Program shall automatically accelerate so that each such option
shall, immediately prior to the effective date of the Hostile Take-Over, vest
and become exercisable for all the shares of Common Stock at the time subject to
such option and may be exercised for any or all of those shares as fully-vested
shares of Common Stock. The option shall remain so exercisable until the
earliest to occur of (i) the expiration of the ten (10)-year option term, (ii)
the expiration of the three (3)-year period measured from the date of the
Optionee's cessation of Board Service, (iii) the termination of the option in
connection with a Change in Control transaction or (iv) the surrender of the
option in connection with that Hostile Take-Over.
C. Upon the occurrence of a Hostile Take-Over, the Optionee shall have
a thirty (30)-day period in which to surrender to the Corporation each
outstanding option granted him or her under the Director Fee Option Grant
Program. The Optionee shall in return be entitled to a cash payment from the
Corporation in an amount equal to the excess of (i) the Take-Over Price of the
shares of Common Stock at the time subject to each surrendered option (whether
or not the option is otherwise at the time exercisable for those shares) over
(ii) the aggregate exercise price payable for such shares. Such cash payment
shall be paid within five (5) days following the surrender of the option to the
D-19
Corporation. The Plan Administrator shall, at the time the option with such
limited stock appreciation right is granted under the Director Fee Option Grant
Program, pre-approve any subsequent exercise of that right in accordance with
the terms of this Paragraph C. Accordingly, no further approval of the Plan
Administrator or the Board shall be required at the time of the actual option
surrender and cash payment.
D. Each option which is assumed in connection with a Change in Control
shall be appropriately adjusted, immediately after such Change in Control, to
apply to the number and class of securities which would have been issuable to
the Optionee in consummation of such Change in Control had the option been
exercised immediately prior to such Change in Control. Appropriate adjustments
shall also be made to the exercise price payable per share under each
outstanding option, provided the aggregate exercise price payable for such
securities shall remain the same. To the extent the actual holders of the
Corporation's outstanding Common Stock receive cash consideration for their
Common Stock in consummation of the Change in Control transaction, the successor
corporation may, in connection with the assumption of the outstanding options
under this Plan, substitute one or more shares of its own common stock with a
fair market value equivalent to the cash consideration paid per share of Common
Stock in such Change in Control transaction.
E. The grant of options under the Director Fee Option Grant Program
shall in no way affect the right of the Corporation to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets.
IV. REMAINING TERMS
The remaining terms of each option granted under this Director Fee
Option Grant Program shall be the same as the terms in effect for option grants
made under the Discretionary Option Grant Program.
ARTICLE SIX
MISCELLANEOUS
I. NO FRACTIONAL SHARES
No fractional shares of Common Stock shall be issued or delivered
pursuant to the Plan, and the Plan Administrator shall determine whether cash
shall be paid in lieu of any fractional shares or whether such fractional shares
or any rights thereto shall be canceled, terminated or otherwise eliminated.
II. TAX WITHHOLDING
A. The Corporation's obligation to deliver shares of Common Stock upon
the exercise of options or the issuance or vesting of such shares under the Plan
shall be subject to the satisfaction of all applicable Federal, state and local
income and employment tax withholding requirements.
D-20
B. The Plan Administrator may, in its discretion, provide any or all
holders of options or unvested shares of Common Stock under the Plan (other than
the options granted or the shares issued under the Automatic Option Grant or
Director Fee Option Grant Program) with the right to use shares of Common Stock
in satisfaction of all or part of the Withholding Taxes to which such holders
may become subject in connection with the exercise of their options or the
vesting of their shares. Such right may be provided to any such holder in either
or both of the following formats:
Stock Withholding: The election to have the Corporation withhold, from
the shares of Common Stock otherwise issuable upon the exercise of such option
or the vesting of such shares, a portion of those shares with an aggregate Fair
Market Value equal to the amount of the Withholding Taxes (not to exceed one
hundred percent (100%) of such Withholding Taxes) to be satisfied in such manner
as designated by the holder in writing.
Stock Delivery: The election to deliver to the Corporation, at the time
the option is exercised or the shares vest, one or more shares of Common Stock
previously acquired by such holder (other than in connection with the option
exercise or share vesting triggering the Withholding Taxes) with an aggregate
Fair Market Value equal to the amount of the Withholding Taxes (not to exceed
one hundred percent (100%) of such Withholding Taxes) to be satisfied in such
manner as designated by the holder in writing.
III. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Plan shall become effective immediately upon the Plan Effective
Date. However, the Director Fee Option Grant Program shall not be implemented
until such time as the Committee may deem appropriate. Options may be granted
under the Discretionary Option Grant Program at any time on or after the Plan
Effective Date, and the initial option grants under the Automatic Option Grant
Program shall be made on the Plan Effective Date to any non-employee Board
members eligible for such grants at that time. However, no options granted under
the Plan may be exercised, and no shares shall be issued under the Plan, until
the Plan is approved by the Corporation's stockholders. If such stockholder
approval is not obtained within twelve (12) months after the Plan Effective
Date, then all options previously granted under this Plan shall terminate and
cease to be outstanding, and no further options shall be granted and no shares
shall be issued under the Plan.
B. The Plan shall serve as the successor to the Predecessor Plan, and
no further option grants or direct stock issuances shall be made under the
Predecessor Plan after the Plan Effective Date. Each option to purchase a share
of the Corporation's common stock outstanding under the Predecessor Plan on the
Plan Effective Date shall be converted into an option to purchase one (1) share
of Common Stock under the Plan and shall be incorporated into the Plan at that
time and shall be treated as an outstanding option under the Plan. However, each
outstanding option so incorporated shall continue to be governed solely by the
terms of the documents evidencing such option under the Predecessor Plan, and no
provision of the Plan shall be deemed to affect or otherwise modify the rights
or obligations of the holders of such incorporated options with respect to their
acquisition of shares of Common Stock.
D-21
C. One or more provisions of the Plan, including (without limitation)
the option/vesting acceleration provisions of Article Two relating to Changes in
Control and Hostile Take-Overs, may, in the Plan Administrator's discretion, be
extended to one or more options incorporated from the Predecessor Plan which do
not otherwise contain such provisions; provided, however, that no such provision
of the Plan shall be extended to an option incorporated from the Predecessor
Plan to the extent such action would (i) cause any Incentive Option outstanding
under the Predecessor Plan to cease to qualify as an Incentive Option for
federal income tax purposes, or (ii) result in a charge to the Corporation's
earnings for financial reporting purposes.
D. The Plan shall terminate upon the earliest of (i) the tenth
anniversary of the Plan Effective Date, (ii) the tenth anniversary of the
approval of the Plan by the Corporation's stockholders, (iii) the date on which
all shares available for issuance under the Plan shall have been issued as
fully-vested shares or (iv) the termination of all outstanding options in
connection with a Change in Control. Upon such Plan termination, all option
grants and unvested stock issuances outstanding at that time shall thereafter
continue to have force and effect in accordance with the provisions of the
documents evidencing such grants or issuances.
IV. AMENDMENT OF THE PLAN
A. The Board shall have complete and exclusive power and authority to
amend or modify the Plan in any or all respects. However, no such amendment or
modification shall adversely affect the rights and obligations with respect to
stock options or unvested stock issuances at the time outstanding under the Plan
unless the Optionee or the Participant consents to such amendment or
modification. In addition, an amendment or modification of the Plan must be
approved by the Corporation's stockholders if such amendment or modification
would:
1. Increase the number of shares of Common Stock reserved for
issuance over the term of the Plan under Section V.A of Article One of
the Plan (other than increases pursuant to Section V.E. of Article One
of the Plan).
2. Change the number of shares of Common Stock for which any
one person participating in the Plan may receive stock options, direct
stock issuances and share right awards in the aggregate per calendar
year under Section V.C. of Article One of the Plan (other than changes
pursuant to Section V.E. of Article One of the Plan).
3. Change the persons or class of persons eligible to
participate in the Plan under Section IV of Article One of the Plan; or
4. Materially increase or enlarge the rights or benefits
available to persons participating in the Plan.
B. Options to purchase shares of Common Stock may be granted under the
Discretionary Option Grant Program and shares of Common Stock may be issued
under the Stock Issuance Program that are in each instance in excess of the
number of shares then available for issuance under the Plan, provided any excess
shares actually issued under those programs shall be held in escrow until there
is obtained stockholder approval of an amendment sufficiently increasing the
number of shares of Common Stock available for issuance under the Plan. If such
D-22
stockholder approval is not obtained within twelve (12) months after the date
the first such excess issuances are made, then (i) any unexercised options
granted on the basis of such excess shares shall terminate and cease to be
outstanding and (ii) the Corporation shall promptly refund to the Optionees and
the Participants the exercise or purchase price paid for any excess shares
issued under the Plan and held in escrow, together with interest (at the
applicable Short Term Federal Rate) for the period the shares were held in
escrow, and such shares shall thereupon be automatically cancelled and cease to
be outstanding.
V. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of shares
of Common Stock under the Plan shall be used for general corporate purposes.
VI. REGULATORY APPROVALS
A. The implementation of the Plan, the granting of any stock option
under the Plan and the issuance of any shares of Common Stock (i) upon the
exercise of any granted option or (ii) under the Stock Issuance Program shall be
subject to the Corporation's procurement of all approvals and permits required
by regulatory authorities having jurisdiction over the Plan, the stock options
granted under it and the shares of Common Stock issued pursuant to it.
B. No shares of Common Stock or other assets shall be issued or
delivered under the Plan unless and until there shall have been compliance with
all applicable requirements of Federal and state securities laws, including the
filing and effectiveness of the Form S-8 registration statement for the shares
of Common Stock issuable under the Plan, and all applicable listing requirements
of any stock exchange (or the Nasdaq National Market, if applicable) on which
Common Stock is then listed for trading.
VII. NO EMPLOYMENT/SERVICE RIGHTS
Nothing in the Plan shall confer upon any Optionee or Participant any
right to continue in Service for any period of specific duration or interfere
with or otherwise restrict in any way the rights of the Corporation (or any
Parent or Subsidiary employing or retaining such person) or of any Optionee or
Participant, which rights are hereby expressly reserved by each, to terminate
such person's Service at any time for any reason, with or without cause.
VIII. SECTION 162(m)
It is the intent of the Corporation that any options granted under the
Plan to a "covered employee" (as that term is defined in Section 162(m) of the
Code) with an exercise price of not less than the Fair Market Value per share of
Common Stock on the date of grant shall qualify as "qualified performance-based
compensation" (within the meaning of Treas. Reg. ss. 1.162-27(e)) and the Plan
shall be interpreted consistently with such intent. In furtherance of the
foregoing, if and to the extent that the Corporation intends that an option
granted under the Plan to any covered employee shall qualify as qualified
performance-based compensation, all decisions regarding the grant of such option
shall be made only by members of the Committee who qualify as "outside
directors" within the meaning of Treas. Reg. ss. 1.162-27(e)(3).
D-23
APPENDIX
--------
The following definitions shall be in effect under the Plan:
A. AUTOMATIC OPTION GRANT PROGRAM shall mean the automatic option grant
program in effect under Article Four of the Plan.
B. BOARD shall mean the Corporation's Board of Directors.
C. CERTIFICATE OF INCORPORATION shall mean the Restated Certificate of
Incorporation of Acacia Research Corporation filed with the Delaware Secretary
of State on the Plan Effective Date and all subsequent amendments, supplements,
modifications and replacements thereof.
D. CHANGE IN CONTROL shall mean a change in ownership or control of the
Corporation effected through any of the following transactions:
(i) a stockholder-approved merger or consolidation in which
securities possessing more than fifty percent (50%) of the total combined voting
power of the Corporation's outstanding securities are transferred to a person or
persons different from the persons holding those securities immediately prior to
such transaction, or
(ii) a sale, transfer or other disposition of all or
substantially all of the Corporation's assets to an entity which is not a
Subsidiary of the Corporation, or
(iii) the acquisition, directly or indirectly by any person or
related group of persons (other than the Corporation or a person that directly
or indirectly controls, is controlled by, or is under common control with, the
Corporation), of beneficial ownership (within the meaning of Rule 13d-3 of the
1934 Act) of securities possessing more than fifty percent (50%) of the total
combined voting power of the Corporation's outstanding securities pursuant to a
tender or exchange offer made directly to the Corporation's stockholders.
E. CODE shall mean the Internal Revenue Code of 1986, as amended.
F. COMMITTEE shall mean the committee of two (2) or more non-employee
Board members appointed by the Board to administer the Discretionary Option
Grant Program with respect to Section 16 Insiders.
G. COMMON STOCK shall mean the Corporation's "Acacia Research - Acacia
Technologies Common Stock" (as defined in the Certificate of Incorporation).
H. CORPORATION shall mean Acacia Research Corporation, a Delaware
corporation, and any corporate successor to all or substantially all of the
assets or voting stock of Acacia Research Corporation, which shall by
appropriate action adopt the Plan.
I. DIRECTOR FEE OPTION GRANT PROGRAM shall mean the special stock
option grant program in effect for non-employee Board members under Article Five
of the Plan.
APPENDIX TO
ANNEX D
-1-
J. DISCRETIONARY OPTION GRANT PROGRAM shall mean the discretionary
option grant program in effect under Article Two of the Plan.
K. EMPLOYEE shall mean an individual who is in the employ of the
Corporation (or any Parent or Subsidiary), subject to the control and direction
of the employer entity as to both the work to be performed and the manner and
method of performance.
L. EXERCISE DATE shall mean the date on which the Corporation shall
have received written notice of the option exercise.
M. FAIR MARKET VALUE per share of Common Stock on any relevant date
shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be the closing selling price
per share of Common Stock on the date in question, as such price is reported on
the Nasdaq National Market. If there is no closing selling price for the Common
Stock on the date in question, then the Fair Market Value shall be the closing
selling price on the last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be the closing selling price per
share of Common Stock on the date in question on the Stock Exchange determined
by the Plan Administrator to be the primary market for the Common Stock, as such
price is officially quoted in the composite tape of transactions on such
exchange. If there is no closing selling price for the Common Stock on the date
in question, then the Fair Market Value shall be the closing selling price on
the last preceding date for which such quotation exists.
(iii) If the Common Stock is at the time not traded on the
Nasdaq National Market or listed on any Stock Exchange, but is regularly traded
in any over-the-counter market, then the Fair Market Value shall be the average
of the bid and asked prices per share of Common Stock in such over-the-counter
market on the date in question. If there are no bid and asked prices on the date
in question, then the Fair Market Value shall be the average of the bid and
asked prices in such over-the-counter market on the last preceding date for
which such prices exist.
(iv) If the Common Stock is at the time not traded as
described in (i), (ii) or (iii) above, then the Fair Market Value of a share of
Common Stock shall be determined by the Plan Administrator, after taking into
account such factors as it deems appropriate.
N. HOSTILE TAKE-OVER shall mean either of the following events
effecting a change in control or ownership of the Corporation:
(i) the acquisition, directly or indirectly, by any person or
related group of persons (other than the Corporation or a person that directly
or indirectly controls, is controlled by, or is under common control with, the
Corporation) of beneficial ownership (within the meaning of Rule 13d-3 of the
1934 Act) of securities possessing more than fifty percent (50%) of the total
combined voting power of the Corporation's outstanding securities pursuant to a
APPENDIX TO
ANNEX D
-2-
tender or exchange offer made directly to the Corporation's stockholders which
the Board does not recommend such stockholders to accept, or
(ii) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the Board
members ceases, by reason of one or more contested elections for Board
membership, to be comprised of individuals who either (A) have been Board
members continuously since the beginning of such period or (B) have been elected
or nominated for election as Board members during such period by at least a
majority of the Board members described in clause (A) who were still in office
at the time the Board approved such election or nomination.
O. IMMEDIATE FAMILY shall mean any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law and shall include
adoptive relationships.
P. INCENTIVE OPTION shall mean an option which satisfies the
requirements of Code Section 422.
Q. MISCONDUCT shall mean the commission of any act of fraud,
embezzlement or dishonesty by the Optionee or Participant, any unauthorized use
or disclosure by such person of confidential information or trade secrets of the
Corporation (or any Parent or Subsidiary), or any other intentional misconduct
by such person adversely affecting the business or affairs of the Corporation
(or any Parent or Subsidiary)in a material manner. The foregoing definition
shall not be deemed to be inclusive of all the acts or omissions which the
Corporation (or any Parent or Subsidiary) may consider as grounds for the
dismissal or discharge of any Optionee, Participant or other person in the
Service of the Corporation (or any Parent or Subsidiary).
R. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended.
S. NON-STATUTORY OPTION shall mean an option not intended to satisfy
the requirements of Code Section 422.
T. OPTIONEE shall mean any person to whom an option is granted under
the Discretionary Option Grant Program, the Automatic Option Grant Program or
the Director Fee Option Grant Program.
U. PARENT shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the time
of the determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
V. PARTICIPANT shall mean any person who is issued shares of Common
Stock under the Stock Issuance Program.
W. PERMANENT DISABILITY OR PERMANENTLY DISABLED shall mean the
inability of the Optionee or the Participant to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
APPENDIX TO
ANNEX D
-3-
impairment which can be expected to result in death or to be of continuous
duration of twelve (12) months or more. However, solely for purposes of the
Automatic Option Grant and Director Fee Option Grant Programs, Permanent
Disability or Permanently Disabled shall mean the inability of the non-employee
Board member to perform his or her usual duties as a Board member by reason of
any medically determinable physical or mental impairment expected to result in
death or to be of continuous duration of twelve (12) months or more.
X. PLAN shall mean the Corporation's 2002 Acacia Technologies Stock
Incentive Plan, as set forth in this document.
Y. PLAN ADMINISTRATOR shall mean the particular body, whether the
Committee or the Board, which is authorized to administer the Discretionary
Option Grant and Stock Issuance Programs with respect to one or more classes of
eligible persons, to the extent such entity is carrying out its administrative
functions under those programs with respect to the persons under its
jurisdiction.
Z. PLAN EFFECTIVE DATE shall mean the date on which the Plan becomes
effective, which shall be concurrent with the date on which the Certificate of
Incorporation is filed by the Corporation with the Delaware Secretary of State.
AA. PREDECESSOR PLAN shall mean the Corporation's 1996 Stock Option
Plan, as in effect immediately prior to the Plan Effective Date hereunder.
BB. SECTION 16 INSIDER shall mean an officer or director of the
Corporation subject to the short-swing profit liabilities of Section 16 of the
1934 Act.
CC. SERVICE shall mean the performance of services for the Corporation
(or any Parent or Subsidiary) by a person in the capacity of an Employee, a
non-employee member of the board of directors or a consultant or independent
advisor, except to the extent otherwise specifically provided in the documents
evidencing the option grant or stock issuance.
DD. SHORT TERM FEDERAL RATE shall mean the federal short-term rate in
effect under Section 1274(d) of the Code for the period the shares were held in
escrow.
EE. STOCK EXCHANGE shall mean either the American Stock Exchange or the
New York Stock Exchange.
FF. STOCK ISSUANCE AGREEMENT shall mean the agreement entered into by
the Corporation and the Participant at the time of issuance of shares of Common
Stock under the Stock Issuance Program.
GG. STOCK ISSUANCE PROGRAM shall mean the stock issuance program in
effect under Article Three of the Plan.
HH. SUBSIDIARY shall mean any corporation (other than the Corporation)
in an unbroken chain of corporations beginning with the Corporation, provided
each corporation (other than the last corporation) in the unbroken chain owns,
APPENDIX TO
ANNEX D
-4-
at the time of the determination, stock possessing fifty percent (50%) or more
of the total combined voting power of all classes of stock in one of the other
corporations in such chain.
II. TAKE-OVER PRICE shall mean the greater of (i) the Fair Market Value
per share of Common Stock on the date the option is surrendered to the
Corporation in connection with a Hostile Take-Over or, if applicable, (ii) the
highest reported price per share of Common Stock paid by the tender offeror in
effecting the Hostile Take-Over through the acquisition of such Common Stock.
However, if the surrendered option is an Incentive Option, the Take-Over Price
shall not exceed the price per share described in clause (i) above.
JJ. 10% STOCKHOLDER shall mean the owner of stock (as determined under
Code Section 424(d)) possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Corporation (or any Parent
or Subsidiary).
KK. WITHHOLDING TAXES shall mean the Federal, state and local income
and employment withholding taxes to which the holder of options or unvested
shares of Common Stock may become subject in connection with the exercise of
those options or the vesting of those shares.
APPENDIX TO
ANNEX D
-5-
ANNEX E
-------
ACACIA RESEARCH CORPORATION
2002 COMBIMATRIX STOCK INCENTIVE PLAN
ARTICLE ONE
GENERAL PROVISIONS
I. PURPOSE OF THE PLAN
This 2002 CombiMatrix Stock Incentive Plan is intended to promote the
interests of Acacia Research Corporation, a Delaware corporation, by providing
eligible persons in the Corporation's Service with the opportunity to acquire a
proprietary interest, or otherwise increase their proprietary interest, in the
Corporation as an incentive for them to remain in such Service.
Capitalized terms shall have the meanings assigned to such terms in the
attached Appendix.
II. STRUCTURE OF THE PLAN
A. The Plan shall be divided into four separate equity incentive
programs:
- the Discretionary Option Grant Program under which eligible
persons may, at the discretion of the Plan Administrator, be granted options to
purchase shares of Common Stock,
- the Stock Issuance Program under which eligible persons may,
at the discretion of the Plan Administrator, be issued shares of Common Stock
directly, either through the immediate purchase of such shares or as a bonus for
services rendered the Corporation (or any Parent or Subsidiary),
- the Automatic Option Grant Program under which eligible
non-employee Board members shall automatically receive option grants at
designated intervals over their period of continued Board Service, and
- the Director Fee Option Grant Program under which
non-employee Board members may elect to have all or any portion of their annual
retainer fee otherwise payable in cash applied to a special stock option grant.
B. The provisions of Articles One and Six shall apply to all equity
incentive programs under the Plan and shall govern the interests of all persons
under the Plan.
III. ADMINISTRATION OF THE PLAN
A. The Committee shall have sole and exclusive authority to administer
the Discretionary Option Grant and Stock Issuance Programs with respect to
E-1
Section 16 Insiders. Administration of the Discretionary Option Grant and Stock
Issuance Programs with respect to all other persons eligible to participate in
those programs may, at the Board's discretion, be vested in the Committee, or
the Board may retain the power to administer those programs with respect to all
such persons. However, any discretionary option grants or stock issuances to
members of the Committee must be authorized and approved by a disinterested
majority of the Board.
B. Members of the Committee shall serve for such period of time as the
Board may determine and may be removed by the Board at any time.
C. The Plan Administrator shall, within the scope of its administrative
functions under the Plan, have full power and authority (subject to the
provisions of the Plan) to establish such rules and regulations as it may deem
appropriate for proper administration of the Discretionary Option Grant and
Stock Issuance Programs and to make such determinations under, and issue such
interpretations of, the provisions of those programs and any outstanding options
or stock issuances thereunder as it may deem necessary or advisable. Decisions
of the Plan Administrator within the scope of its administrative functions under
the Plan shall be final and binding on all parties who have an interest in the
Discretionary Option Grant and Stock Issuance Programs under its jurisdiction or
any stock option or stock issuance thereunder.
D. Service on the Committee shall constitute Service as a Board member,
and members of each such committee shall accordingly be entitled to full
indemnification and reimbursement as Board members for their service on such
committee. No member of the Committee shall be liable for any act or omission
made in good faith with respect to the Plan or any option grants or stock
issuances under the Plan.
E. Administration of the Automatic Option Grant and Director Fee Option
Grant Programs shall be self-executing in accordance with the terms of those
programs, and no Plan Administrator shall exercise any discretionary functions
with respect to any option grants or stock issuances made under those programs.
IV. ELIGIBILITY
A. The persons eligible to participate in the Discretionary Option
Grant and Stock Issuance Programs are as follows:
(i) Employees,
(ii) non-employee members of the Board or the board
of directors of any Parent or Subsidiary, and
(iii) consultants and other independent advisors who
provide services to the Corporation (or any Parent or
Subsidiary).
B. The Plan Administrator shall, within the scope of its administrative
jurisdiction under the Plan, have full authority to determine, (i) with respect
to the option grants under the Discretionary Option Grant Program, which
eligible persons are to receive such grants, the time or times when those grants
E-2
are to be made, the number of shares to be covered by each such grant, the
status of the granted option as either an Incentive Option or a Non-Statutory
Option, if, and the extent to which, each option is to be exercisable at a
different time or times than those times set forth in Section I.B.1. of Article
Two of the Plan, the vesting schedule (if any) applicable to the option shares
and the maximum term for which the option is to remain outstanding and (ii) with
respect to stock issuances under the Stock Issuance Program, which eligible
persons are to receive such issuances, the time or times when the issuances are
to be made, the number of shares to be issued to each Participant, the vesting
schedule (if any) applicable to the issued shares and the consideration for such
shares.
C. The Plan Administrator shall have the absolute discretion either to
grant options in accordance with the Discretionary Option Grant Program or to
effect stock issuances in accordance with the Stock Issuance Program.
D. The individuals who shall be eligible to participate in the
Automatic Option Grant Program shall be limited to (i) those individuals who
first become non-employee Board members after the Plan Effective Date, whether
through appointment by the Board or election by the Corporation's stockholders,
and (ii) those individuals who continue to serve as non-employee Board members
on the first business day in each calendar year following the Plan Effective
Date and during the term of the Plan, including any individuals who first became
non-employee Board members prior to such Plan Effective Date. A non-employee
Board member who has previously been in the employ of the Corporation (or any
Parent or Subsidiary) shall not be eligible to receive an option grant under the
Automatic Option Grant Program at the time he or she first becomes a
non-employee Board member, but shall be eligible to receive periodic option
grants under the Automatic Option Grant Program while he or she continues to
serve as a non-employee Board member.
E. All non-employee Board members shall be eligible to participate in
the Director Fee Option Grant Program.
V. STOCK SUBJECT TO THE PLAN
A. The stock issuable under the Plan shall be shares of authorized but
unissued or reacquired Common Stock, including shares repurchased by the
Corporation on the open market. The number of shares of Common Stock initially
reserved for issuance over the term of the Plan shall not exceed _______________
shares. Such authorized reserve consists of (i) the sum of (A) the number of
shares which remain available for issuance, as of the Plan Effective Date, under
the CombiMatrix Predecessor Plans as last approved by CombiMatrix Corporation's
stockholders (_____________ shares), plus (B) an amount equal to the product of
the Exchange Ratio, multiplied by the number of shares available for issuance,
as of the Plan Effective Date, under the Acacia Research Predecessor Plan (such
product being equal to ______________ shares), including, in each case, the
shares subject to the outstanding options to be incorporated into the Plan and
the additional shares which would otherwise be available for future grant, plus
(ii) an increase of __________ shares authorized by the Board but subject to
stockholder approval prior to the Plan Effective Date.
B. The number of shares of Common Stock available for issuance under
the Plan shall automatically increase on the first trading day of January each
E-3
calendar year during the term of the Plan, beginning with calendar year 2003, by
an amount equal to three percent (3%) of the total number of shares of Common
Stock outstanding on the last trading day in December of the immediately
preceding calendar year, but in no event shall any such annual increase exceed
600,000 shares and in no event shall the aggregate number of shares of Common
Stock available for issuance under the Plan (as adjusted for all such annual
increases) exceed 20,000,000 shares.
C. No one person participating in the Plan may receive stock options,
separately exercisable stock appreciation rights and direct stock issuances or
share right awards for more than 1,000,000 shares of Common Stock in the
aggregate per calendar year.
D. Shares of Common Stock subject to outstanding options (including
options incorporated into this Plan from the Predecessor Plans) shall be
available for subsequent issuance under the Plan to the extent (i) those options
expire or terminate for any reason prior to exercise in full or (ii) the options
are cancelled in accordance with the cancellation-regrant provisions of Article
Two. Unvested shares issued under the Plan and subsequently cancelled or
repurchased by the Corporation at the original exercise or issue price paid per
share, pursuant to the Corporation's repurchase rights under the Plan, shall be
added back to the number of shares of Common Stock reserved for issuance under
the Plan and shall accordingly be available for reissuance through one or more
subsequent option grants or direct stock issuances under the Plan. In addition,
should the exercise price of an option under the Plan be paid with shares of
Common Stock or should shares of Common Stock otherwise issuable under the Plan
be withheld by the Corporation in satisfaction of the withholding taxes incurred
in connection with the exercise of an option or the vesting of a stock issuance
under the Plan, then the number of shares of Common Stock available for issuance
under the Plan shall be reduced only by the net number of shares of Common Stock
issued to the holder of such option or stock issuance, and not by the gross
number of shares for which the option is exercised or which vest under the stock
issuance. However, shares of Common Stock underlying one or more stock
appreciation rights exercised under Section V of Article Two, Section II.D of
Article Four or Section III.C of Article Five of the Plan shall not be available
for subsequent issuance under the Plan.
E. If any change is made to the Common Stock by reason of any stock
split, stock dividend, recapitalization, combination of shares, exchange of
shares or other change affecting the outstanding Common Stock as a class without
the Corporation's receipt of consideration, appropriate adjustments shall be
made by the Plan Administrator to (i) the maximum number and/or class of
securities issuable under the Plan, (ii) the maximum number and/or class of
securities for which any one person may be granted stock options, separately
exercisable stock appreciation rights and direct stock issuances or share right
awards under the Plan per calendar year, (iii) the number and/or class of
securities for which grants are subsequently to be made under the Automatic
Option Grant Program to new and continuing non-employee Board members, (iv) the
number and/or class of securities and the exercise price per share in effect
under each outstanding option under the Plan, (v) the number and/or class of
securities and exercise price per share in effect under each outstanding option
incorporated into this Plan from the Predecessor Plans, and (vi) the maximum
number and/or class of securities by which the share reserve is to increase
automatically each calendar year pursuant to the provisions of Section V.B. of
this Article One. Such adjustments to the outstanding options are to be effected
E-4
in a manner which shall preclude the enlargement or dilution of rights and
benefits under such options. The adjustments determined by the Plan
Administrator shall be final, binding and conclusive.
ARTICLE TWO
DISCRETIONARY OPTION GRANT PROGRAM
I. OPTION TERMS
Each option shall be evidenced by one or more documents in the form
approved by the Plan Administrator; provided, however, that each such document
shall comply with the terms specified below. Each document evidencing an
Incentive Option shall, in addition, be subject to the provisions of the Plan
applicable to such options.
A. EXERCISE PRICE.
1. The exercise price per share shall be fixed by the Plan
Administrator but shall not be less than eighty-five percent (85%) of
the Fair Market Value per share of Common Stock on the option grant
date.
2. The exercise price shall become immediately due upon
exercise of the option and shall, subject to the provisions of the
documents evidencing the option, be payable in one or more of the forms
specified below:
(i) cash or check made payable to the Corporation, or
(ii) shares of Common Stock held for the requisite
period necessary to avoid a charge to the Corporation's
earnings for financial reporting purposes and valued at Fair
Market Value on the Exercise Date, or
(iii) to the extent the option is exercised for
vested shares, through a special sale and remittance procedure
pursuant to which the Optionee shall concurrently provide
irrevocable instructions to (a) a Corporation-designated
brokerage firm to effect the immediate sale of the purchased
shares and remit to the Corporation, out of the sale proceeds
available on the settlement date, sufficient funds to cover
the aggregate exercise price payable for the purchased shares
plus all applicable Federal, state and local income and
employment taxes required to be withheld by the Corporation by
reason of such exercise and (b) the Corporation to deliver the
certificates for the purchased shares directly to such
brokerage firm in order to complete the sale.
Except to the extent such sale and remittance procedure is utilized,
payment of the exercise price for the purchased shares must be made on the
Exercise Date.
B. EXERCISE AND TERM OF OPTIONS.
1. Unless otherwise determined by the Plan Administrator and
set forth in the documents evidencing the option:
E-5
(i) Each option granted under the Discretionary
Option Grant Program to an Optionee in connection with the
commencement of the Optionee's Service with the Corporation
(or any Parent or Subsidiary) shall become exercisable for
one-third (1/3) of the shares of Common Stock subject to such
option upon such Optionee's completion of one year of Service
measured from the option grant date and shall become
exercisable for the balance of the option shares in
twenty-four (24) successive equal monthly installments upon
the Optionee's completion of each additional month of Service
over the 24-month period measured from the first year
anniversary of the grant date.
(ii) Each option granted under the Discretionary
Option Grant Program other than an option described in
subparagraph (i) immediately above shall become exercisable
for one-sixth (1/6) of the shares of Common Stock subject to
the option upon such Optionee's completion of six (6) months
of Service measured from the option grant date and shall
become exercisable for the balance of the option shares in
thirty (30) successive equal monthly installments upon the
Optionee's completion of each additional month of Service over
the 30-month period measured from the 6-month anniversary of
the grant date.
2. Notwithstanding any other provision of the Plan, no option
shall have a term in excess of ten (10) years measured from the option
grant date.
C. EFFECT OF TERMINATION OF SERVICE.
1. The following provisions shall govern the exercise of any
options held by the Optionee at the time of cessation of Service or
death:
(i) Any option outstanding at the time of the
Optionee's cessation of Service for any reason shall remain
exercisable for such period of time thereafter as shall be
determined by the Plan Administrator and set forth in the
documents evidencing the option, but no such option shall be
exercisable after the expiration of the option term.
(ii) Any option held by the Optionee at the time of
death and exercisable in whole or in part at that time may be
subsequently exercised by the personal representative of the
Optionee's estate or by the person or persons to whom the
option is transferred pursuant to the Optionee's will or the
laws of descent and distribution or by the Optionee's
designated beneficiary or beneficiaries of that option.
(iii) Should the Optionee's Service be terminated for
Misconduct or should the Optionee otherwise engage in
Misconduct while holding one or more outstanding options under
this Article Two, then all those options shall terminate
immediately and cease to be outstanding.
(iv) During the applicable post-Service exercise
period, the option may not be exercised in the aggregate for
more than the number of vested shares for which the option is
E-6
exercisable on the date of the Optionee's cessation of
Service. Upon the expiration of the applicable exercise period
or (if earlier) upon the expiration of the option term, the
option shall terminate and cease to be outstanding for any
vested shares for which the option has not been exercised.
However, the option shall, immediately upon the Optionee's
cessation of Service, terminate and cease to be outstanding to
the extent the option is not otherwise at that time
exercisable for vested shares.
2. The Plan Administrator shall have complete discretion,
exercisable either at the time an option is granted or at any time
while the option remains outstanding, to:
(i) extend the period of time for which the option is
to remain exercisable following the Optionee's cessation of
Service from the limited exercise period otherwise in effect
for that option to such greater period of time as the Plan
Administrator shall deem appropriate, but in no event beyond
the expiration of the option term, and/or
(ii) permit the option to be exercised, during the
applicable post-Service exercise period, not only with respect
to the number of vested shares of Common Stock for which such
option is exercisable at the time of the Optionee's cessation
of Service but also with respect to one or more additional
installments in which the Optionee would have vested had the
Optionee continued in Service.
D. STOCKHOLDER RIGHTS. The holder of an option shall have no
stockholder rights with respect to the shares subject to the option until such
person shall have exercised the option, paid the exercise price and become a
holder of record of the purchased shares.
E. REPURCHASE RIGHTS. The Plan Administrator shall have the discretion
to grant options which are exercisable for unvested shares of Common Stock.
Should the Optionee cease Service while holding such unvested shares, the
Corporation shall have the right to repurchase, at the exercise price paid per
share, any or all of those unvested shares. The terms upon which such repurchase
right shall be exercisable (including the period and procedure for exercise and
the appropriate vesting schedule for the purchased shares) shall be established
by the Plan Administrator and set forth in the document evidencing such
repurchase right.
F. LIMITED TRANSFERABILITY OF OPTIONS. During the lifetime of the
Optionee, Incentive Options shall be exercisable only by the Optionee and shall
not be assignable or transferable other than by will or the laws of descent and
distribution following the Optionee's death. Non-Statutory Options shall be
subject to the same limitation, except that a Non-Statutory Option may be
assigned in whole or in part during the Optionee's lifetime to one or more of
the Optionee's Immediate Family or to a trust established exclusively for the
Optionee or one or more members of the Optionee's Immediate Family members or to
Optionee's former spouse, to the extent such assignment is in connection with
the Optionee's estate plan or pursuant to a domestic relations order. The
assigned portion may only be exercised by the person or persons who acquire a
proprietary interest in the option pursuant to the assignment. The terms
applicable to the assigned portion shall be the same as those in effect for the
option immediately prior to such assignment and shall be set forth in such
documents issued to the assignee as the Plan Administrator may deem appropriate.
E-7
Notwithstanding the foregoing, the Optionee may also designate one or more
persons as the beneficiary or beneficiaries of his or her outstanding options
under this Article Two, and those options shall, in accordance with such
designation, automatically be transferred to such beneficiary or beneficiaries
upon the Optionee's death while holding those options. Such beneficiary or
beneficiaries shall take the transferred options subject to all the terms and
conditions of the applicable agreement evidencing each such transferred option,
including (without limitation) the limited time period during which the option
may be exercised following the Optionee's death.
II. INCENTIVE OPTIONS
The terms specified below shall be applicable to all Incentive Options.
Except as modified by the provisions of this Section II, all the provisions of
Articles One, Two and Six shall be applicable to Incentive Options. Options
which are specifically designated as Non-Statutory Options when issued under the
Plan shall not be subject to the terms of this Section II.
A. ELIGIBILITY. Incentive Options may only be granted to Employees.
B. EXERCISE PRICE. The exercise price per share shall not be less than
one hundred percent (100%) of the Fair Market Value per share of Common Stock on
the option grant date.
C. DOLLAR LIMITATION. The aggregate Fair Market Value of the shares of
Common Stock (determined as of the respective date or dates of grant) for which
one or more options granted to any Employee under the Plan (or any other option
plan of the Corporation or any Parent or Subsidiary) may for the first time
become exercisable as Incentive Options during any one calendar year shall not
exceed the sum of One Hundred Thousand Dollars ($100,000). To the extent the
Employee holds two (2) or more such options which become exercisable for the
first time in the same calendar year, the foregoing limitation on the
exercisability of such options as Incentive Options shall be applied on the
basis of the order in which such options are granted.
D. FAILURE TO QUALIFY AS INCENTIVE OPTION. To the extent that any
option governed by this Plan does not qualify as an Incentive Option, by reason
of the dollar limitation described in Section II.C of this Article Two or for
any other reason, such option shall be exercisable as a Non-Statutory Option
under the Federal tax laws.
E. 10% STOCKHOLDER. If any Employee to whom an Incentive Option is
granted is a 10% Stockholder, then the exercise price per share shall not be
less than one hundred ten percent (110%) of the Fair Market Value per share of
Common Stock on the option grant date, and the option term shall not exceed five
(5) years measured from the option grant date.
III. CHANGE IN CONTROL/HOSTILE TAKE-OVER
A. Unless otherwise determined by the Plan Administrator and expressly
set forth in the documents evidencing the option, each option outstanding under
the Discretionary Option Grant Program at the time of a Change in Control but
not otherwise exercisable for all the shares of Common Stock at that time
subject to such option shall automatically accelerate so that each such option
shall, immediately prior to the effective date of the Change in Control, become
exercisable for all the shares of Common Stock at the time subject to such
E-8
option and may be exercised for any or all of those shares as fully vested
shares of Common Stock, regardless of whether such options are assumed by the
successor corporation or otherwise continued in force and effect pursuant to the
Change in Control transaction.
B. All of the Corporation's outstanding repurchase rights under the
Discretionary Option Grant Program shall also terminate automatically, and the
shares of Common Stock subject to those terminated rights shall immediately vest
in full, in the event of any Change in Control, except to the extent such
accelerated vesting is precluded by limitations imposed by the Plan
Administrator at the time the repurchase right is issued.
C. Immediately following the consummation of the Change in Control, all
outstanding options shall terminate and cease to be outstanding, except to the
extent assumed by the successor corporation (or parent thereof) or otherwise
expressly continued in full force and effect pursuant to the terms of the Change
in Control transaction.
D. Each option which is assumed in connection with a Change in Control
or otherwise continued in effect shall be appropriately adjusted, immediately
after such Change in Control, to apply to the number and class of securities
which would have been issuable to the Optionee in consummation of such Change in
Control had the option been exercised immediately prior to such Change in
Control. Appropriate adjustments to reflect such Change in Control shall also be
made to (i) the exercise price payable per share under each outstanding option,
provided the aggregate exercise price payable for such securities shall remain
the same, (ii) the maximum number and/or class of securities available for
issuance over the remaining term of the Plan, (iii) the maximum number and/or
class of securities by which the share reserve is to increase each calendar year
pursuant to the automatic share increase provisions of the Plan and (iv) the
maximum number and/or class of securities for which any one person may be
granted options, separately exercisable stock appreciation rights and direct
stock issuances or share right awards under the Plan per calendar year. To the
extent the actual holders of the Corporation's outstanding Common Stock receive
cash consideration for their Common Stock in consummation of the Change in
Control transaction, the successor corporation may, in connection with the
assumption of the outstanding options under the Discretionary Option Grant
Program, substitute one or more shares of its own common stock with a fair
market value equivalent to the cash consideration paid per share of Common Stock
in such Change in Control transaction.
E. Unless otherwise determined by the Plan Administrator and expressly
set forth in the documents evidencing the option, each option outstanding under
the Discretionary Option Grant Program at the time of a Hostile Take-Over but
not otherwise exercisable for all the shares of Common Stock subject to such
option at that time shall, immediately prior to the effective date of a Hostile
Take-Over, automatically vest and become exercisable for all the shares of
Common Stock at that time subject to such options on an accelerated basis and
may be exercised for any or all of such shares as fully vested shares of Common
Stock. In addition, all of the Corporation's repurchase rights under the
Discretionary Option Grant Program shall terminate automatically upon the
consummation of such Hostile Take-Over, and the shares subject to those
terminated rights shall thereupon immediately vest in full, except to the extent
such accelerated vesting is precluded by limitations imposed by the Plan
E-9
Administrator at the time the repurchase right is issued. Each option so
accelerated shall remain exercisable for fully vested shares of Common Stock
until the expiration or sooner termination of the option term.
F. The portion of any Incentive Option accelerated in connection with a
Change in Control or Hostile Take-Over shall remain exercisable as an Incentive
Option only to the extent the applicable One Hundred Thousand Dollar ($100,000)
limitation is not exceeded. To the extent such dollar limitation is exceeded,
the accelerated portion of such option shall be exercisable as a Non-Statutory
Option under the Federal tax laws.
G. The grant of options under the Discretionary Option Grant Program
shall in no way affect the right of the Corporation to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets.
IV. CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at any time
and from time to time, with the consent of the affected option holders, the
cancellation of any or all outstanding options under the Discretionary Option
Grant Program (including outstanding options incorporated from the Predecessor
Plans) and to grant in substitution new options covering the same or a different
number of shares of Common Stock but with an exercise price per share calculated
based upon the Fair Market Value per share of Common Stock on the new grant
date.
V. STOCK APPRECIATION RIGHTS
A. The Plan Administrator shall have full power and authority to grant
to selected Optionees tandem stock appreciation rights and/or limited stock
appreciation rights.
B. The following terms shall govern the grant and exercise of tandem
stock appreciation rights:
(i) One or more Optionees may be granted the right,
exercisable upon such terms as the Plan Administrator may
establish, to elect between the exercise of the underlying
option for shares of Common Stock and the surrender of that
option in exchange for a payment from the Corporation in an
amount equal to the excess of (a) the Fair Market Value (on
the option surrender date) of the number of shares in which
the Optionee is at the time vested under the surrendered
option (or surrendered portion thereof) over (b) the aggregate
exercise price payable for such shares.
(ii) No such option surrender shall be effective
unless it is approved by the Plan Administrator, either at the
time of the actual option surrender or at any earlier time. If
the surrender is so approved, then the payment to which the
Optionee shall be entitled may be made in shares of Common
Stock valued at Fair Market Value on the option surrender
date, in cash, or partly in shares and partly in cash, as the
Plan Administrator shall in its sole discretion deem
appropriate.
E-10
(iii) If the surrender of an option is not approved
by the Plan Administrator, then the Optionee shall retain
whatever rights the Optionee had under the surrendered option
(or surrendered portion thereof) on the option surrender date
and may exercise such rights at any time prior to the later of
(a) five (5) business days after the receipt of the rejection
notice or (b) the last day on which the option is otherwise
exercisable in accordance with the terms of the documents
evidencing such option, but in no event may such rights be
exercised more than ten (10) years after the option grant
date.
C. The following terms shall govern the grant and exercise of limited
stock appreciation rights:
(i) One or more Section 16 Insiders may be granted
limited stock appreciation rights with respect to their
outstanding options.
(ii) Upon the occurrence of a Hostile Take-Over, each
individual holding one or more options with such a limited
stock appreciation right shall have the unconditional right
(exercisable for a thirty (30)-day period following such
Hostile Take-Over) to surrender each such option (or any
portion thereof) to the Corporation. In return for the
surrendered option, the Optionee shall receive a cash payment
from the Corporation in an amount equal to the excess of (A)
the Take-Over Price of the shares of Common Stock at the time
subject to such option (whether or not the option is otherwise
vested and exercisable for those shares) over (B) the
aggregate exercise price payable for those shares. Such cash
payment shall be paid within five (5) days following the
option surrender date.
(iii) At the time such limited stock appreciation
right is granted, the Plan Administrator shall pre-approve any
subsequent exercise of that right in accordance with the terms
of this Paragraph C. Accordingly, no further approval of the
Plan Administrator or the Board shall be required at the time
of the actual option surrender and cash payment.
(iv) The balance of the option (if any) shall remain
outstanding and exercisable in accordance with the documents
evidencing such option.
ARTICLE THREE
STOCK ISSUANCE PROGRAM
I. STOCK ISSUANCE TERMS
Shares of Common Stock may be issued under the Stock Issuance Program
through direct and immediate issuances without any intervening option grants.
Each such stock issuance shall be evidenced by a Stock Issuance Agreement which
complies with the terms specified below. Shares of Common Stock may also be
issued under the Stock Issuance Program pursuant to share right awards which
entitle the recipients to receive those shares upon the attainment of designated
performance goals.
E-11
A. PURCHASE PRICE.
1. The purchase price per share shall be fixed by the Plan
Administrator, but shall not be less than one hundred percent (100%) of
the Fair Market Value per share of Common Stock on the issuance date.
2. Shares of Common Stock may be issued under the Stock
Issuance Program for any of the following items of consideration which
the Plan Administrator may deem appropriate in each individual
instance:
(i) cash or check made payable to the Corporation, or
(ii) past services rendered to the Corporation (or
any Parent or Subsidiary).
B. VESTING PROVISIONS.
1. Shares of Common Stock issued under the Stock Issuance
Program may, in the discretion of the Plan Administrator, be fully and
immediately vested upon issuance or may vest in one or more
installments over the Participant's period of Service or upon
attainment of specified performance objectives. The elements of the
vesting schedule applicable to any unvested shares of Common Stock
issued under the Stock Issuance Program shall be determined by the Plan
Administrator and incorporated into the Stock Issuance Agreement.
Shares of Common Stock may also be issued under the Stock Issuance
Program pursuant to share right awards which entitle the recipients to
receive those shares upon the attainment of designated performance
goals. Upon the attainment of such performance goals, fully vested
shares of Common Stock shall be issued in satisfaction of those share
right awards.
2. Any new, substituted or additional securities or other
property (including money paid other than as a regular cash dividend)
which the Participant may have the right to receive with respect to the
Participant's unvested shares of Common Stock by reason of any stock
dividend, stock split, recapitalization, combination of shares,
exchange of shares or other change affecting the outstanding Common
Stock as a class without the Corporation's receipt of consideration
shall be issued subject to (i) the same vesting requirements applicable
to the Participant's unvested shares of Common Stock and (ii) such
escrow arrangements as the Plan Administrator shall deem appropriate.
3. The Participant shall have full stockholder rights with
respect to any shares of Common Stock issued to the Participant under
the Stock Issuance Program, whether or not the Participant's interest
in those shares is vested. Accordingly, the Participant shall have the
right to vote such shares and to receive any regular cash dividends
paid on such shares.
4. Should the Participant cease to remain in Service while
holding one or more unvested shares of Common Stock issued under the
Stock Issuance Program or should the performance objectives not be
attained with respect to one or more such unvested shares of Common
E-12
Stock, then those shares shall be immediately surrendered to the
Corporation for cancellation, and the Participant shall have no further
stockholder rights with respect to those shares. To the extent the
surrendered shares were previously issued to the Participant for
consideration paid in cash or cash equivalent (including the
Participant's purchase-money indebtedness but not including services
rendered by the Participant), the Corporation shall repay to the
Participant the cash consideration paid for the surrendered shares and
shall cancel the unpaid principal balance of any outstanding
purchase-money note of the Participant attributable to the surrendered
shares.
5. The Plan Administrator may in its discretion waive the
surrender and cancellation of one or more unvested shares of Common
Stock which would otherwise occur upon the cessation of the
Participant's Service or the non-attainment of the performance
objectives applicable to those shares. Such waiver shall result in the
immediate vesting of the Participant's interest in the shares of Common
Stock as to which the waiver applies. Such waiver may be effected at
any time, whether before or after the Participant's cessation of
Service or the attainment or non-attainment of the applicable
performance objectives.
6. Outstanding share right awards under the Stock Issuance
Program shall automatically terminate, and no shares of Common Stock
shall actually be issued in satisfaction of those awards, if the
performance goals or Service requirements established for such awards
are not attained. The Plan Administrator, however, shall have the
discretionary authority to issue shares of Common Stock under one or
more outstanding share right awards as to which the designated
performance goals or Service requirements have not been attained.
II. CHANGE IN CONTROL/HOSTILE TAKE-OVER
All of the Corporation's outstanding repurchase rights under the Stock
Issuance Program shall terminate automatically, and all the shares of Common
Stock subject to those terminated rights shall immediately vest in full, in the
event of any Change in Control or Hostile Take-Over, except to the extent such
accelerated vesting is precluded by other limitations imposed in the Stock
Issuance Agreement.
III. SHARE ESCROW/LEGENDS
Unvested shares may, in the Plan Administrator's discretion, be held in
escrow by the Corporation until the Participant's interest in such shares vests
or may be issued directly to the Participant with restrictive legends on the
certificates evidencing those unvested shares.
ARTICLE FOUR
AUTOMATIC OPTION GRANT PROGRAM
I. OPTION TERMS
A. GRANT DATES. Option grants shall be made on the dates specified
below:
E-13
1. Each individual who is first elected or appointed as a
non-employee Board member at any time on or after the Plan Effective
Date shall automatically be granted, on the date of such initial
election or appointment, a Non-Statutory Option to purchase 20,000
shares of Common Stock, provided that individual has not previously
been in the employ of the Corporation or any Parent or Subsidiary.
2. On the first business day in each calendar year following
the Plan Effective Date and during the term of the Plan, each
non-employee Board member then in office, shall automatically be
granted a Non-Statutory Option to purchase 15,000 shares of Common
Stock, provided such individual has served as a non-employee Board
member for at least six (6) months. There shall be no limit on the
number of such 15,000-share option grants any one non-employee Board
member may receive over his or her period of Board Service, and
non-employee Board members who have previously been in the employ of
the Corporation (or any Parent or Subsidiary) or who joined the Board
prior to the Plan Effective Date shall be eligible to receive one or
more such annual option grants over their period of continued Board
Service.
B. EXERCISE PRICE.
1. The exercise price per share shall be equal to one hundred
percent (100%) of the Fair Market Value per share of Common Stock on
the option grant date.
2. The exercise price shall be payable in one or more of the
alternative forms authorized under the Discretionary Option Grant
Program. Except to the extent the sale and remittance procedure
specified thereunder is utilized, payment of the exercise price for the
purchased shares must be made on the Exercise Date.
C. OPTION TERM. Each option shall have a maximum term of ten (10) years
measured from the option grant date.
D. EXERCISE AND VESTING OF OPTIONS. Each option granted pursuant to
this Automatic Option Grant Program shall become exercisable in a series of four
(4) equal quarterly installments upon the Optionee's completion of each three
(3) months of continuous Service as a Board member over the 12-month period
measured from the option grant date.
E. LIMITED TRANSFERABILITY OF OPTIONS. Each option under this Article
Four may be assigned in whole or in part during the Optionee's lifetime to one
or more members of the Optionee's Immediate Family or to a trust established
exclusively for the Optionee or one or more Members of the Optionee's Immediate
Family or to Optionee's former spouse, to the extent such assignment is in
connection with the Optionee's estate plan or pursuant to domestic relations
order. The assigned portion may only be exercised by the person or persons who
acquire a proprietary interest in the option pursuant to the assignment. The
terms applicable to the assigned portion shall be the same as those in effect
for the option immediately prior to such assignment and shall be set forth in
such documents issued to the assignee as the Plan Administrator may deem
appropriate. The Optionee may also designate one or more persons as the
beneficiary or beneficiaries of his or her outstanding options under this
Article Four, and those options shall, in accordance with such designation,
E-14
automatically be transferred to such beneficiary or beneficiaries upon the
Optionee's death while holding those options. Such beneficiary or beneficiaries
shall take the transferred options subject to all the terms and conditions of
the applicable agreement evidencing each such transferred option, including
(without limitation) the limited time period during which the option may be
exercised following the Optionee's death.
F. TERMINATION OF BOARD SERVICE. The following provisions shall govern
the exercise of any options held by the Optionee at the time the Optionee ceases
to serve as a Board member for any reason:
(i) The Optionee (or, in the event of Optionee's
death, the personal representative of the Optionee's estate or
the person or persons to whom the option is transferred
pursuant to the Optionee's will or the laws of descent and
distribution or the designated beneficiary or beneficiaries of
such option) shall have a six (6)-month period following the
date of such cessation of Board Service in which to exercise
each such option.
(ii) During the six (6)-month post-Service exercise
period, the option may not be exercised in the aggregate for
more than the number of vested shares of Common Stock for
which the option is exercisable at the time of the Optionee's
cessation of Board Service.
(iii) In no event shall the option remain exercisable
after the expiration of the option term. Upon the expiration
of the six (6)-month post-Service exercise period or (if
earlier) upon the expiration of the option term, the option
shall terminate and cease to be outstanding for any shares for
which the option has not been exercised. However, the option
shall, immediately upon the Optionee's cessation of Board
Service for any reason, terminate and cease to be outstanding
to the extent the option is not otherwise at that time
exercisable.
II. CHANGE IN CONTROL/ HOSTILE TAKE-OVER
A. In the event of any Change in Control while the Optionee remains a
Board member, the shares of Common Stock at the time subject to each outstanding
option held by such Optionee under the Automatic Option Grant Program but not
otherwise vested shall automatically accelerate so that each such option shall,
immediately prior to the effective date of the Change in Control, vest and
become exercisable for all the shares of Common Stock at the time subject to
such option and may be exercised for any or all of those shares as fully vested
shares of Common Stock. Immediately following the consummation of the Change in
Control, each automatic option grant shall terminate and cease to be
outstanding, except to the extent assumed by the successor corporation (or
parent thereof) or otherwise continued in full force and effect pursuant to the
express terms of the Change in Control transaction.
B. In the event of a Hostile Take-Over while the Optionee remains a
Board member, the shares of Common Stock at the time subject to each option
outstanding under the Automatic Option Grant Program but not otherwise vested
E-15
shall automatically accelerate so that each such option shall, immediately prior
to the effective date of the Hostile Take-Over, vest and become exercisable for
all the shares of Common Stock at the time subject to such option and may be
exercised for any or all of those shares as fully vested shares of Common Stock.
Each such option shall remain exercisable for such fully-vested option shares
until the expiration or sooner termination of the option term or the surrender
of the option in connection with that Hostile Take-Over.
C. All outstanding repurchase rights under the Automatic Option Grant
Program shall automatically terminate, and the shares of Common Stock subject to
those terminated rights shall immediately vest in full, in the event of any
Change in Control or Hostile Take-Over.
D. Upon the occurrence of a Hostile Take-Over, the Optionee shall have
a thirty (30)-day period in which to surrender to the Corporation each of his or
her outstanding automatic option grants. The Optionee shall in return be
entitled to a cash payment from the Corporation in an amount equal to the excess
of (i) the Take-Over Price of the shares of Common Stock at the time subject to
each surrendered option (whether or not the Optionee is otherwise at the time
vested in those shares) over (ii) the aggregate exercise price payable for such
shares. Such cash payment shall be paid within five (5) days following the
surrender of the option to the Corporation. The Plan Administrator shall, at the
time the option with such limited stock appreciation right is granted under the
Automatic Option Grant Program, pre-approve any subsequent exercise of that
right in accordance with the terms of this Paragraph D. Accordingly, no further
approval of the Plan Administrator or the Board shall be required at the time of
the actual option surrender and cash payment.
E. Each option which is assumed in connection with a Change in Control
or otherwise continued in full force and effect shall be appropriately adjusted,
immediately after such Change in Control, to apply to the number and class of
securities which would have been issuable to the Optionee in consummation of
such Change in Control had the option been exercised immediately prior to such
Change in Control. Appropriate adjustments shall also be made to the exercise
price payable per share under each outstanding option, provided the aggregate
exercise price payable for such securities shall remain the same. To the extent
the actual holders of the Corporation's outstanding Common Stock receive cash
consideration for their Common Stock in consummation of the Change in Control
transaction, the successor corporation may, in connection with the assumption of
the outstanding options under the Automatic Option Grant Program, substitute one
or more shares of its own common stock with a fair market value equivalent to
the cash consideration paid per share of Common Stock in such Change in Control
transaction.
F. The grant of options under the Automatic Option Grant Program shall
in no way affect the right of the Corporation to adjust, reclassify, reorganize
or otherwise change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or
assets.
E-16
III. REMAINING TERMS
The remaining terms of each option granted under the Automatic Option
Grant Program shall be the same as the terms in effect for option grants made
under the Discretionary Option Grant Program.
ARTICLE FIVE
DIRECTOR FEE OPTION GRANT PROGRAM
I. OPTION GRANTS
The Committee shall have the sole and exclusive authority to determine
the calendar year or years for which the Director Fee Option Grant Program is to
be in effect. For each such calendar year the program is in effect, each
non-employee Board member may irrevocably elect to apply all or any portion of
the annual retainer fee otherwise payable in cash for his or her Service on the
Board for that year to the acquisition of a special option grant under this
Director Fee Option Grant Program. Such election must be filed with the
Corporation's Chief Financial Officer prior to the first day of the calendar
year for which the annual retainer fee which is the subject of that election is
otherwise payable. Each non-employee Board member who files such a timely
election shall automatically be granted an option under this Director Fee Option
Grant Program on the first trading day in January in the calendar year for which
the annual retainer fee which is the subject of that election would otherwise be
payable in cash.
II. OPTION TERMS
Each option shall be a Non-Statutory Option governed by the terms and
conditions specified below.
A. EXERCISE PRICE.
1. The exercise price per share shall be thirty-three and
one-third percent (33-1/3%) of the Fair Market Value per share of
Common Stock on the option grant date.
2. The exercise price shall become immediately due upon
exercise of the option and shall be payable in one or more of the
alternative forms authorized under the Discretionary Option Grant
Program. Except to the extent the sale and remittance procedure
specified thereunder is utilized, payment of the exercise price for the
purchased shares must be made on the Exercise Date.
B. NUMBER OF OPTION SHARES. The number of shares of Common Stock
subject to the option shall be determined pursuant to the following formula
(rounded down to the nearest whole number):
X = A / (B x 66-2/3%), where
X is the number of option shares,
E-17
A is the portion of the annual retainer fee subject to
the non-employee Board member's election, and
B is the Fair Market Value per share of Common Stock on
the option grant date.
C. EXERCISE AND TERM OF OPTIONS. The option shall become exercisable in
a series of twelve (12) equal monthly installments upon the Optionee's
completion of each calendar month of Board Service during the calendar year for
which the retainer fee election is in effect. Each option shall have a maximum
term of ten (10) years measured from the option grant date.
D. LIMITED TRANSFERABILITY OF OPTIONS. Each option under this Article
Five may be assigned in whole or in part during the Optionee's lifetime to one
or more members of the Optionee's Immediate Family or to a trust established
exclusively for the Optionee or one or more members of the Optionee's Immediate
Family or to Optionee's former spouse, to the extent such assignment is in
connection with Optionee's estate plan or pursuant to a domestic relations
order. The assigned portion may only be exercised by the person or persons who
acquire a proprietary interest in the option pursuant to the assignment. The
terms applicable to the assigned portion shall be the same as those in effect
for the option immediately prior to such assignment and shall be set forth in
such documents issued to the assignee as the Plan Administrator may deem
appropriate. The Optionee may also designate one or more persons as the
beneficiary or beneficiaries of his or her outstanding options under this
Article Five, and those options shall, in accordance with such designation,
automatically be transferred to such beneficiary or beneficiaries upon the
Optionee's death while holding those options. Such beneficiary or beneficiaries
shall take the transferred options subject to all the terms and conditions of
the applicable agreement evidencing each such transferred option, including
(without limitation) the limited time period during which the option may be
exercised following the Optionee's death.
E. TERMINATION OF BOARD SERVICE. Should the Optionee cease Board
Service for any reason (other than death or Permanent Disability) while holding
one or more options under this Director Fee Option Grant Program, then each such
option shall remain exercisable, for any or all of the shares of Common Stock
for which the option is exercisable at the time of such cessation of Board
Service, until the earlier of (i) the expiration of the ten (10)-year option
term or (ii) the expiration of the three (3)-year period measured from the date
of such cessation of Board Service. However, each option held by the Optionee
under this Director Fee Option Grant Program at the time of his or her cessation
of Board Service shall immediately terminate and cease to remain outstanding
with respect to any and all shares of Common Stock for which the option is not
otherwise at that time exercisable.
F. DEATH OR PERMANENT DISABILITY. Should the Optionee's Service as a
Board member cease by reason of death or Permanent Disability, then each option
held by such Optionee under this Director Fee Option Grant Program shall
immediately become exercisable for all the shares of Common Stock at the time
subject to that option, and the option may be exercised for any or all of those
shares as fully-vested shares of Common Stock until the earlier of (i) the
expiration of the ten (10)-year option term or (ii) the expiration of the three
E-18
(3)-year period measured from the date of such cessation of Board Service. In
the event of the Optionee's death while holding such option, the option may be
exercised by the personal representative of the Optionee's estate or by the
person or persons to whom the option is transferred pursuant to the Optionee's
will or the laws of descent and distribution or by the designated beneficiary or
beneficiaries of such option.
Should the Optionee die after cessation of Board Service but while
holding one or more options under this Director Fee Option Grant Program, then
each such option may be exercised, for any or all of the shares of Common Stock
for which the option is exercisable at the time of the Optionee's cessation of
Board Service (less any shares subsequently purchased by Optionee pursuant to
such option prior to death), by the personal representative of the Optionee's
estate or by the person or persons to whom the option is transferred pursuant to
the Optionee's will or the laws of descent and distribution or by the designated
beneficiary or beneficiaries of such option. Such right of exercise shall lapse,
and the option shall terminate, upon the earlier of (i) the expiration of the
ten (10)-year option term or (ii) the three (3)-year period measured from the
date of the Optionee's cessation of Board Service.
III. CHANGE IN CONTROL/HOSTILE TAKE-OVER
A. In the event of any Change in Control while the Optionee remains a
Board member, each outstanding option held by such Optionee under this Director
Fee Option Grant Program shall automatically accelerate so that each such option
shall, immediately prior to the effective date of the Change in Control, vest
and become exercisable for all the shares of Common Stock at the time subject to
such option and may be exercised for any or all of those shares as fully-vested
shares of Common Stock. Each such outstanding option shall terminate immediately
following the Change in Control, except to the extent assumed by the successor
corporation (or parent thereof) or otherwise continued in full force and effect
pursuant to the express terms of the Change in Control transaction. Any option
so assumed or continued in effect shall remain exercisable for the fully-vested
shares until the earliest to occur of (i) the expiration of the ten (10)-year
option term, (ii) the expiration of the three (3)-year period measured from the
date of the Optionee's cessation of Board Service, (iii) the termination of the
option in connection with a subsequent Change in Control transaction or (iv) the
surrender of the option in connection with a Hostile Take-Over.
B. In the event of a Hostile Take-Over while the Optionee remains a
Board member, each outstanding option held by such Optionee under this Director
Fee Option Grant Program shall automatically accelerate so that each such option
shall, immediately prior to the effective date of the Hostile Take-Over, vest
and become exercisable for all the shares of Common Stock at the time subject to
such option and may be exercised for any or all of those shares as fully-vested
shares of Common Stock. The option shall remain so exercisable until the
earliest to occur of (i) the expiration of the ten (10)-year option term, (ii)
the expiration of the three (3)-year period measured from the date of the
Optionee's cessation of Board Service, (iii) the termination of the option in
connection with a Change in Control transaction or (iv) the surrender of the
option in connection with that Hostile Take-Over.
C. Upon the occurrence of a Hostile Take-Over, the Optionee shall have
a thirty (30)-day period in which to surrender to the Corporation each
E-19
outstanding option granted him or her under the Director Fee Option Grant
Program. The Optionee shall in return be entitled to a cash payment from the
Corporation in an amount equal to the excess of (i) the Take-Over Price of the
shares of Common Stock at the time subject to each surrendered option (whether
or not the option is otherwise at the time exercisable for those shares) over
(ii) the aggregate exercise price payable for such shares. Such cash payment
shall be paid within five (5) days following the surrender of the option to the
Corporation. The Plan Administrator shall, at the time the option with such
limited stock appreciation right is granted under the Director Fee Option Grant
Program, pre-approve any subsequent exercise of that right in accordance with
the terms of this Paragraph C. Accordingly, no further approval of the Plan
Administrator or the Board shall be required at the time of the actual option
surrender and cash payment.
D. Each option which is assumed in connection with a Change in Control
shall be appropriately adjusted, immediately after such Change in Control, to
apply to the number and class of securities which would have been issuable to
the Optionee in consummation of such Change in Control had the option been
exercised immediately prior to such Change in Control. Appropriate adjustments
shall also be made to the exercise price payable per share under each
outstanding option, provided the aggregate exercise price payable for such
securities shall remain the same. To the extent the actual holders of the
Corporation's outstanding Common Stock receive cash consideration for their
Common Stock in consummation of the Change in Control transaction, the successor
corporation may, in connection with the assumption of the outstanding options
under this Plan, substitute one or more shares of its own common stock with a
fair market value equivalent to the cash consideration paid per share of Common
Stock in such Change in Control transaction.
E. The grant of options under the Director Fee Option Grant Program
shall in no way affect the right of the Corporation to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets.
IV. REMAINING TERMS
The remaining terms of each option granted under this Director Fee
Option Grant Program shall be the same as the terms in effect for option grants
made under the Discretionary Option Grant Program.
ARTICLE SIX
MISCELLANEOUS
I. NO FRACTIONAL SHARES
No fractional shares of Common Stock shall be issued or delivered
pursuant to the Plan, and the Plan Administrator shall determine whether cash
shall be paid in lieu of any fractional shares or whether such fractional shares
or any rights thereto shall be canceled, terminated or otherwise eliminated.
E-20
II. TAX WITHHOLDING
A. The Corporation's obligation to deliver shares of Common Stock upon
the exercise of options or the issuance or vesting of such shares under the Plan
shall be subject to the satisfaction of all applicable Federal, state and local
income and employment tax withholding requirements.
B. The Plan Administrator may, in its discretion, provide any or all
holders of options or unvested shares of Common Stock under the Plan (other than
the options granted or the shares issued under the Automatic Option Grant or
Director Fee Option Grant Program) with the right to use shares of Common Stock
in satisfaction of all or part of the Withholding Taxes to which such holders
may become subject in connection with the exercise of their options or the
vesting of their shares. Such right may be provided to any such holder in either
or both of the following formats:
Stock Withholding: The election to have the Corporation withhold, from
the shares of Common Stock otherwise issuable upon the exercise of such option
or the vesting of such shares, a portion of those shares with an aggregate Fair
Market Value equal to the amount of the Withholding Taxes (not to exceed one
hundred percent (100%) of such Withholding Taxes) to be satisfied in such manner
as designated by the holder in writing.
Stock Delivery: The election to deliver to the Corporation, at the time
the option is exercised or the shares vest, one or more shares of Common Stock
previously acquired by such holder (other than in connection with the option
exercise or share vesting triggering the Withholding Taxes) with an aggregate
Fair Market Value equal to the amount of the Withholding Taxes (not to exceed
one hundred percent (100%) of such Withholding Taxes) to be satisfied in such
manner as designated by the holder in writing.
III. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Plan shall become effective immediately upon the Plan Effective
Date. However, the Director Fee Option Grant Program shall not be implemented
until such time as the Committee may deem appropriate. Options may be granted
under the Discretionary Option Grant Program at any time on or after the Plan
Effective Date, and the initial option grants under the Automatic Option Grant
Program shall be made on the Plan Effective Date to any non-employee Board
members eligible for such grants at that time. However, no options granted under
the Plan may be exercised, and no shares shall be issued under the Plan, until
the Plan is approved by the Corporation's stockholders. If such stockholder
approval is not obtained within twelve (12) months after the Plan Effective
Date, then all options previously granted under this Plan shall terminate and
cease to be outstanding, and no further options shall be granted and no shares
shall be issued under the Plan.
B. The Plan shall serve as the successor to the Predecessor Plans, and
no further option grants or direct stock issuances shall be made under the
Predecessor Plans after the Plan Effective Date. Each option to purchase a share
of CombiMatrix Corporation's common stock outstanding under the CombiMatrix
Predecessor Plans on the Plan Effective Date shall be converted into an option
to purchase one (1) share of Common Stock under the Plan and shall be
incorporated into the Plan at that time and shall be treated as an outstanding
E-21
option under the Plan and each option to purchase one (1) share of the
Corporation's common stock under the Acacia Research Predecessor Plan shall be
converted into an option to purchase a fraction of a share of Common Stock,
determined by multiplying one (1) share by the Exchange Ratio. No option
incorporated into this Plan from the Predecessor Plans shall entitle the holder
of such option to purchase a fractional share of Common Stock under the Plan
and any fractional shares resulting from the calculation relating to
incorporated options set forth in the preceding sentence shall be eliminated and
the number of shares subject to any such incorporated options shall be rounded
down to the nearest whole number when determining the number of converted
options to purchase Common Stock under the Plan. However, each outstanding
option so incorporated shall continue to be governed solely by the terms of the
documents evidencing such option under the applicable Predecessor Plan, and no
provision of the Plan shall be deemed to affect or otherwise modify the rights
or obligations of the holders of such incorporated options with respect to their
acquisition of shares of Common Stock.
C. One or more provisions of the Plan, including (without limitation)
the option/vesting acceleration provisions of Article Two relating to Changes in
Control and Hostile Take-Overs, may, in the Plan Administrator's discretion, be
extended to one or more options incorporated from the Predecessor Plans which do
not otherwise contain such provisions; provided, however, that no such provision
of the Plan shall be extended to an option incorporated from the Predecessor
Plans to the extent such action would (i) cause any Incentive Option outstanding
under the Predecessor Plans to cease to qualify as an Incentive Option for
federal income tax purposes, or (ii) result in a charge to the Corporation's
earnings or the earnings of CombiMatrix Corporation for financial reporting
purposes.
D. The Plan shall terminate upon the earliest of (i) the tenth
anniversary of the Plan Effective Date, (ii) the tenth anniversary of the
approval of the Plan by the Corporation's stockholders, (iii) the date on which
all shares available for issuance under the Plan shall have been issued as
fully-vested shares or (iv) the termination of all outstanding options in
connection with a Change in Control. Upon such Plan termination, all option
grants and unvested stock issuances outstanding at that time shall thereafter
continue to have force and effect in accordance with the provisions of the
documents evidencing such grants or issuances.
IV. AMENDMENT OF THE PLAN
A. The Board shall have complete and exclusive power and authority to
amend or modify the Plan in any or all respects. However, no such amendment or
modification shall adversely affect the rights and obligations with respect to
stock options or unvested stock issuances at the time outstanding under the Plan
unless the Optionee or the Participant consents to such amendment or
modification. In addition, an amendment or modification of the Plan must be
approved by the Corporation's stockholders if such amendment or modification
would:
1. Increase the number of shares of Common Stock reserved for
issuance over the term of the Plan under Section V.A of Article One of
the Plan (other than increases pursuant to Section V.E. of Article One
of the Plan).
E-22
2. Change the number of shares of Common Stock for which any
one person participating in the Plan may receive stock options, direct
stock issuances and share right awards in the aggregate per calendar
year under Section V.C. of Article One of the Plan (other than changes
pursuant to Section V.E. of Article One of the Plan).
3. Change the persons or class of persons eligible to
participate in the Plan under Section IV of Article One of the Plan; or
4. Materially increase or enlarge the rights or benefits
available to persons participating in the Plan.
B. Options to purchase shares of Common Stock may be granted under the
Discretionary Option Grant Program and shares of Common Stock may be issued
under the Stock Issuance Program that are in each instance in excess of the
number of shares then available for issuance under the Plan, provided any excess
shares actually issued under those programs shall be held in escrow until there
is obtained stockholder approval of an amendment sufficiently increasing the
number of shares of Common Stock available for issuance under the Plan. If such
stockholder approval is not obtained within twelve (12) months after the date
the first such excess issuances are made, then (i) any unexercised options
granted on the basis of such excess shares shall terminate and cease to be
outstanding and (ii) the Corporation shall promptly refund to the Optionees and
the Participants the exercise or purchase price paid for any excess shares
issued under the Plan and held in escrow, together with interest (at the
applicable Short Term Federal Rate) for the period the shares were held in
escrow, and such shares shall thereupon be automatically cancelled and cease to
be outstanding.
V. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of shares
of Common Stock under the Plan shall be used for general corporate purposes.
VI. REGULATORY APPROVALS
A. The implementation of the Plan, the granting of any stock option
under the Plan and the issuance of any shares of Common Stock (i) upon the
exercise of any granted option or (ii) under the Stock Issuance Program shall be
subject to the Corporation's procurement of all approvals and permits required
by regulatory authorities having jurisdiction over the Plan, the stock options
granted under it and the shares of Common Stock issued pursuant to it.
B. No shares of Common Stock or other assets shall be issued or
delivered under the Plan unless and until there shall have been compliance with
all applicable requirements of Federal and state securities laws, including the
filing and effectiveness of the Form S-8 registration statement for the shares
of Common Stock issuable under the Plan, and all applicable listing requirements
of any stock exchange (or the Nasdaq National Market, if applicable) on which
Common Stock is then listed for trading.
E-23
VII. NO EMPLOYMENT/SERVICE RIGHTS
Nothing in the Plan shall confer upon any Optionee or Participant any
right to continue in Service for any period of specific duration or interfere
with or otherwise restrict in any way the rights of the Corporation (or any
Parent or Subsidiary employing or retaining such person) or of any Optionee or
Participant, which rights are hereby expressly reserved by each, to terminate
such person's Service at any time for any reason, with or without cause.
VIII. SECTION 162(m)
It is the intent of the Corporation that any options granted under the
Plan to a "covered employee" (as that term is defined in Section 162(m) of the
Code) with an exercise price of not less than the Fair Market Value per share of
Common Stock on the date of grant shall qualify as "qualified performance-based
compensation" (within the meaning of Treas. Reg. ss. 1.162-27(e)) and the Plan
shall be interpreted consistently with such intent. In furtherance of the
foregoing, if and to the extent that the Corporation intends that an option
granted under the Plan to any covered employee shall qualify as qualified
performance-based compensation, all decisions regarding the grant of such option
shall be made only by members of the Committee who qualify as "outside
directors" within the meaning of Treas. Reg. ss. 1.162-27(e)(3).
E-24
APPENDIX
--------
The following definitions shall be in effect under the Plan:
A. ACACIA RESEARCH PREDECESSOR PLAN shall mean the Corporation's 1996
Stock Option Plan, as in effect immediately prior to the Plan Effective Date
hereunder.
B. AUTOMATIC OPTION GRANT PROGRAM shall mean the automatic option grant
program in effect under Article Four of the Plan.
C. BOARD shall mean the Corporation's Board of Directors.
D. CERTIFICATE OF INCORPORATION shall mean the Restated Certificate of
Incorporation of Acacia Research Corporation filed with the Delaware Secretary
of State on the Plan Effective Date and all subsequent amendments, supplements,
modifications and replacements thereof.
E. CHANGE IN CONTROL shall mean a change in ownership or control of the
Corporation effected through any of the following transactions:
(i) a stockholder-approved merger or consolidation in which
securities possessing more than fifty percent (50%) of the total combined voting
power of the Corporation's outstanding securities are transferred to a person or
persons different from the persons holding those securities immediately prior to
such transaction, or
(ii) a sale, transfer or other disposition of all or
substantially all of the Corporation's assets to an entity which is not a
Subsidiary of the Corporation, or
(iii) the acquisition, directly or indirectly by any person or
related group of persons (other than the Corporation or a person that directly
or indirectly controls, is controlled by, or is under common control with, the
Corporation), of beneficial ownership (within the meaning of Rule 13d-3 of the
1934 Act) of securities possessing more than fifty percent (50%) of the total
combined voting power of the Corporation's outstanding securities pursuant to a
tender or exchange offer made directly to the Corporation's stockholders.
F. CODE shall mean the Internal Revenue Code of 1986, as amended.
G. COMBIMATRIX CORPORATION shall mean CombiMatrix Corporation, a
Delaware corporation.
H. COMBIMATRIX PREDECESSOR PLANS shall mean, collectively, CombiMatrix
Corporation's 1995 Stock Option Plan, 1998 Stock Option Plan and 2000 Stock
Awards Plan, as in effect immediately prior to the Plan Effective Date
hereunder.
I. COMMITTEE shall mean the committee of two (2) or more non-employee
Board members appointed by the Board to administer the Discretionary Option
Grant Program with respect to Section 16 Insiders.
APPENDIX TO
ANNEX E
-1-
J. COMMON STOCK shall mean the Corporation's "Acacia Research -
CombiMatrix Common Stock" (as defined in the Certificate of Incorporation).
K. CORPORATION shall mean Acacia Research Corporation, a Delaware
corporation, and any corporate successor to all or substantially all of the
assets or voting stock of Acacia Research Corporation, which shall by
appropriate action adopt the Plan.
L. DIRECTOR FEE OPTION GRANT PROGRAM shall mean the special stock
option grant program in effect for non-employee Board members under Article Five
of the Plan.
M. DISCRETIONARY OPTION GRANT PROGRAM shall mean the discretionary
option grant program in effect under Article Two of the Plan.
N. EMPLOYEE shall mean an individual who is in the employ of the
Corporation (or any Parent or Subsidiary), subject to the control and direction
of the employer entity as to both the work to be performed and the manner and
method of performance.
O. EXCHANGE RATIO shall mean 0.___.
P. EXERCISE DATE shall mean the date on which the Corporation shall
have received written notice of the option exercise.
Q. FAIR MARKET VALUE per share of Common Stock on any relevant date
shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be the closing selling price
per share of Common Stock on the date in question, as such price is reported on
the Nasdaq National Market. If there is no closing selling price for the Common
Stock on the date in question, then the Fair Market Value shall be the closing
selling price on the last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be the closing selling price per
share of Common Stock on the date in question on the Stock Exchange determined
by the Plan Administrator to be the primary market for the Common Stock, as such
price is officially quoted in the composite tape of transactions on such
exchange. If there is no closing selling price for the Common Stock on the date
in question, then the Fair Market Value shall be the closing selling price on
the last preceding date for which such quotation exists.
(iii) If the Common Stock is at the time not traded on the
Nasdaq National Market or listed on any Stock Exchange, but is regularly traded
in any over-the-counter market, then the Fair Market Value shall be the average
of the bid and asked prices per share of Common Stock in such over-the-counter
market on the date in question. If there are no bid and asked prices on the date
in question, then the Fair Market Value shall be the average of the bid and
asked prices in such over-the-counter market on the last preceding date for
which such prices exist.
APPENDIX TO
ANNEX E
-2-
(iv) If the Common Stock is at the time not traded as
described in (i), (ii) or (iii) above, then the Fair Market Value of a share of
Common Stock shall be determined by the Plan Administrator, after taking into
account such factors as it deems appropriate.
R. HOSTILE TAKE-OVER shall mean either of the following events
effecting a change in control or ownership of the Corporation:
(i) the acquisition, directly or indirectly, by any person or
related group of persons (other than the Corporation or a person that directly
or indirectly controls, is controlled by, or is under common control with, the
Corporation) of beneficial ownership (within the meaning of Rule 13d-3 of the
1934 Act) of securities possessing more than fifty percent (50%) of the total
combined voting power of the Corporation's outstanding securities pursuant to a
tender or exchange offer made directly to the Corporation's stockholders which
the Board does not recommend such stockholders to accept, or
(ii) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the Board
members ceases, by reason of one or more contested elections for Board
membership, to be comprised of individuals who either (A) have been Board
members continuously since the beginning of such period or (B) have been elected
or nominated for election as Board members during such period by at least a
majority of the Board members described in clause (A) who were still in office
at the time the Board approved such election or nomination.
S. IMMEDIATE FAMILY shall mean any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law and shall include
adoptive relationships.
T. INCENTIVE OPTION shall mean an option which satisfies the
requirements of Code Section 422.
U. MISCONDUCT shall mean the commission of any act of fraud,
embezzlement or dishonesty by the Optionee or Participant, any unauthorized use
or disclosure by such person of confidential information or trade secrets of the
Corporation (or any Parent or Subsidiary), or any other intentional misconduct
by such person adversely affecting the business or affairs of the Corporation
(or any Parent or Subsidiary)in a material manner. The foregoing definition
shall not be deemed to be inclusive of all the acts or omissions which the
Corporation (or any Parent or Subsidiary) may consider as grounds for the
dismissal or discharge of any Optionee, Participant or other person in the
Service of the Corporation (or any Parent or Subsidiary).
V. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended.
W. NON-STATUTORY OPTION shall mean an option not intended to satisfy
the requirements of Code Section 422.
X. OPTIONEE shall mean any person to whom an option is granted under
the Discretionary Option Grant Program, the Automatic Option Grant Program or
the Director Fee Option Grant Program.
APPENDIX TO
ANNEX E
-3-
Y. PARENT shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the time
of the determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
Z. PARTICIPANT shall mean any person who is issued shares of Common
Stock under the Stock Issuance Program.
AA. PERMANENT DISABILITY OR PERMANENTLY DISABLED shall mean the
inability of the Optionee or the Participant to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or to be of continuous
duration of twelve (12) months or more. However, solely for purposes of the
Automatic Option Grant and Director Fee Option Grant Programs, Permanent
Disability or Permanently Disabled shall mean the inability of the non-employee
Board member to perform his or her usual duties as a Board member by reason of
any medically determinable physical or mental impairment expected to result in
death or to be of continuous duration of twelve (12) months or more.
BB. PLAN shall mean the Corporation's 2002 CombiMatrix Stock Incentive
Plan, as set forth in this document.
CC. PLAN ADMINISTRATOR shall mean the particular body, whether the
Committee or the Board, which is authorized to administer the Discretionary
Option Grant and Stock Issuance Programs with respect to one or more classes of
eligible persons, to the extent such entity is carrying out its administrative
functions under those programs with respect to the persons under its
jurisdiction.
DD. PLAN EFFECTIVE DATE shall mean the date on which the Plan becomes
effective, which shall be concurrent with the date on which the Certificate of
Incorporation is filed by the Corporation with the Delaware Secretary of State.
EE. PREDECESSOR PLANS shall mean, collectively, the Acacia Research
Predecessor Plan and the CombiMatrix Predecessor Plans, and "Predecessor Plan"
shall mean any one of the Predecessor Plans.
FF. SECTION 16 INSIDER shall mean an officer or director of the
Corporation subject to the short-swing profit liabilities of Section 16 of the
1934 Act.
GG. SERVICE shall mean the performance of services for the Corporation
(or any Parent or Subsidiary) by a person in the capacity of an Employee, a
non-employee member of the board of directors or a consultant or independent
advisor, except to the extent otherwise specifically provided in the documents
evidencing the option grant or stock issuance.
HH. SHORT TERM FEDERAL RATE shall mean the federal short-term rate in
effect under Section 1274(d) of the Code for the period the shares were held in
escrow.
APPENDIX TO
ANNEX E
-4-
II. STOCK EXCHANGE shall mean either the American Stock Exchange or the
New York Stock Exchange.
JJ. STOCK ISSUANCE AGREEMENT shall mean the agreement entered into by
the Corporation and the Participant at the time of issuance of shares of Common
Stock under the Stock Issuance Program.
KK. STOCK ISSUANCE PROGRAM shall mean the stock issuance program in
effect under Article Three of the Plan.
LL. SUBSIDIARY shall mean any corporation (other than the Corporation)
in an unbroken chain of corporations beginning with the Corporation, provided
each corporation (other than the last corporation) in the unbroken chain owns,
at the time of the determination, stock possessing fifty percent (50%) or more
of the total combined voting power of all classes of stock in one of the other
corporations in such chain.
MM. TAKE-OVER PRICE shall mean the greater of (i) the Fair Market Value
per share of Common Stock on the date the option is surrendered to the
Corporation in connection with a Hostile Take-Over or, if applicable, (ii) the
highest reported price per share of Common Stock paid by the tender offeror in
effecting the Hostile Take-Over through the acquisition of such Common Stock.
However, if the surrendered option is an Incentive Option, the Take-Over Price
shall not exceed the price per share described in clause (i) above.
NN. 10% STOCKHOLDER shall mean the owner of stock (as determined under
Code Section 424(d)) possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Corporation (or any Parent
or Subsidiary).
OO. WITHHOLDING TAXES shall mean the Federal, state and local income
and employment withholding taxes to which the holder of options or unvested
shares of Common Stock may become subject in connection with the exercise of
those options or the vesting of those shares.
APPENDIX TO
ANNEX E
-5-
[PricewaterhouseCoopers Letterhead]
--------------------------------------------------------------------------------
PRICEWATERHOUSECOOPERS LLP
Suite 800W
1301 K St., N.W.
Washington DC 20005-3333
Telephone (202) 414 1000
Facsimile (202) 414 1301
May 3, 2002
Board of Directors
Acacia Research Corporation
500 Newport Center Drive
7th Floor
Newport Beach, CA 92660
To the Members of the Board of Directors of Acacia Research Corporation,
You have requested an opinion by PricewaterhouseCoopers LLP ("PwC") as to
certain federal income tax consequences of the proposed recapitalization of
Acacia Research Corporation, a Delaware Corporation ("Acacia"), whereby Acacia
will issue shares of newly created classes of stock of Acacia, AR-CombiMatrix
stock and AR-Acacia Technologies stock, in exchange for all of the outstanding
Acacia common stock (the "Recapitalization"), as well as the proposed
simultaneous merger of CombiMatrix Corporation, a Delaware corporation
("CombiMatrix"), with and into Combi Acquisition Corp., a Delaware corporation
("Combi Acquisition Corp."), a newly formed wholly owned subsidiary of Acacia,
solely in exchange for shares of AR-CombiMatrix stock (the "Merger"), issued by
Acacia.
Upon the consummation of the Recapitalization, each outstanding option to
purchase Acacia common stock (whether or not vested) shall be converted into an
option to purchase shares of AR-CombiMatrix stock and AR-Acacia Technologies
stock, and upon the consummation of the Merger, each outstanding option to
purchase CombiMatrix common stock (whether or not vested) shall be transferred
to and assumed by Acacia in such manner that it is converted into an option to
purchase shares of AR-CombiMatrix stock (collectively, the "Option Plan
Substitution"). This document sets forth the opinion on the Recapitalization,
the Merger and the Option Plan Substitution, based upon information provided to
PwC by Acacia and CombiMatrix.
Accompanying the Opinion is a Transmission of Background, Assumptions and
Representations letter (referred to herein as the "transmittal letter") setting
forth the background information, assumptions and representations that PwC has
relied upon in reaching the opinions set forth herein. PwC has not independently
verified the accuracy or completeness of the information set forth in that
letter. If any of the information set forth in that letter is inaccurate or
incomplete, the opinions set forth in this opinion may be partially or wholly
inaccurate as a result.
F-1
[PricewaterhouseCoopers Letterhead]
Opinion
-------
In our opinion, the principal federal income tax consequences of the
Recapitalization of Acacia will be as follows:
1. The AR-CombiMatrix stock and the AR-Acacia Technologies stock will be
treated as stock of Acacia.
2. The exchange by the Acacia stockholders of their Acacia common stock
for AR-CombiMatrix stock and AR-Acacia Technologies stock will
constitute a recapitalization within the meaning of section
368(a)(1)(E) of the Internal Revenue Code of 1986 (the "Code"). Acacia
will be "a party to a reorganization" within the meaning of section
368(b) of the Code.
3. No gain or loss will be recognized by the Acacia stockholders on the
exchange of their Acacia common stock solely for AR-CombiMatrix stock
and AR-Acacia Technologies stock.
4. The payment of cash in lieu of fractional share interests of
AR-CombiMatrix stock will be treated as if the fractional shares were
distributed as part of the exchange to the exchange agent and then were
purchased by the exchange agent. These cash payments will be treated as
full payment for the stock as provided in Section 1001(a) of the Code.
5. The basis of the AR-CombiMatrix stock in the hands of each Acacia
stockholder will equal a portion of their basis in the Acacia common
stock surrendered in the exchange based on the relative fair market of
the AR-CombiMatrix stock as compared to the total consideration
received by the Acacia stockholders pursuant to the Recapitalization.
The holding period of the AR-CombiMatrix stock to be received by each
Acacia stockholder will include the holding period of the Acacia common
stock surrendered in exchange therefor, provided that the Acacia common
stock was held as a capital asset as of the date of the exchange.
6. The basis of the AR-Acacia Technologies stock in the hands of each
Acacia stockholder will equal a portion of their basis in the Acacia
common stock surrendered in the exchange based on the relative fair
market of the AR-Acacia Technologies stock as compared to the total
consideration received by the Acacia stockholders pursuant to the
Recapitalization. The holding period of the AR-Acacia Technologies
stock to be received by each Acacia stockholder will include the
holding period of the Acacia common stock surrendered in exchange
therefor, provided that the Acacia common stock was held as a capital
asset as of the date of the exchange.
F-2
[PricewaterhouseCoopers Letterhead]
7. No gain or loss will be recognized by Acacia on its issuance of
AR-CombiMatrix stock and AR-Acacia Technologies stock in exchange for
the Acacia voting common stock.
In our opinion, the principal federal income tax consequences of the Merger will
be as follows:
1. The AR-CombiMatrix stock will be treated as stock of Acacia.
2. Provided the Merger qualifies as a merger under applicable state law,
the acquisition by Combi Acquisition Corp. of substantially all of the
assets of CombiMatrix in exchange for AR-CombiMatrix stock and the
assumption by Combi Acquisition Corp. of the liabilities of CombiMatrix
plus the liabilities to which the CombiMatrix assets may be subject,
will qualify as a reorganization within the meaning of Sections
368(a)(1)(A) and 368(a)(2)(D) of the Code. For purposes of this
paragraph, "substantially all" means at least 90 percent of the fair
market value of the net assets and at least 70 percent of the fair
market value of the gross assets of CombiMatrix. Acacia, Combi
Acquisition Corp., and CombiMatrix will each be "a party to a
reorganization" within the meaning of section 368(b) of the Code.
3. No gain or loss will be recognized to CombiMatrix on the transfer of
substantially all of its assets to Combi Acquisition Corp. in exchange
for AR-CombiMatrix stock, cash to pay dissenters, if any, and the
assumption by Combi Acquisition Corp. of the liabilities of
CombiMatrix, since the cash will be distributed to the dissenting
stockholders of CombiMatrix pursuant to the plan of reorganization.
4. No gain or loss will be recognized by either Acacia or Combi
Acquisition Corp. on the receipt by Combi Acquisition Corp. of
substantially all of CombiMatrix's assets in exchange for AR-Acacia
Technologies stock, cash, if any, and the assumption of the liabilities
of CombiMatrix.
5. Combi Acquisition Corp. will not recognize gain or loss when it
exchanges AR-CombiMatrix stock for substantially all the assets of
CombiMatrix.
6. The CombiMatrix stockholders will not recognize gain or loss when
they exchange their CombiMatrix common stock solely for AR-CombiMatrix
stock (including any fractional share interests to which they may be
entitled).
7. The payment of cash in lieu of fractional share interests of
AR-CombiMatrix stock will be treated as if the fractional shares were
distributed as part of the exchange to the exchange agent and then were
purchased by the exchange agent. These cash payments will be treated as
full payment for the stock as provided in Section 1001(a) of the Code.
F-3
[PricewaterhouseCoopers Letterhead]
8. The CombiMatrix stockholders', other than Acacia, basis in the
AR-CombiMatrix stock (including any fractional share interests to which
they may be entitled) received pursuant to the Merger will be equal to
the basis they had in their CombiMatrix common stock.
9. The holding period of the AR-CombiMatrix stock to be received by the
CombiMatrix stockholders in the exchange (including any fractional
share interests to which they may be entitled) will include the holding
period of the CombiMatrix common stock to be surrendered in exchange
therefor, provided the CombiMatrix common stock is held as a capital
asset in the hands of the CombiMatrix stockholders on the date of
the exchange.
10. Combi Acquisition Corp.'s tax basis in the assets it receives pursuant
to the merger will equal CombiMatrix's basis in those assets. Combi
Acquisition Corp.'s holding period in the assets it receives pursuant
to the Merger will include CombiMatrix's holding period in such assets.
11. Acacia's basis in its Combi Acquisition Corp. stock will be adjusted as
if Acacia acquired CombiMatrix's assets acquired by Combi Acquisition
Corp. in the Merger (and Acacia assumed any liabilities which Combi
Acquisition Corp. assumed or to which the CombiMatrix assets acquired
were subject) directly from CombiMatrix in a transaction in which
Acacia's basis in the assets of CombiMatrix was determined under
Section 362(b) of the Code; and Acacia transferred the CombiMatrix
assets (and liabilities which Combi Acquisition Corp. assumed or to
which the CombiMatrix assets acquired by Combi Acquisition Corp. were
subject) to Combi Acquisition Corp. in a transaction in which Acacia's
basis in Combi Acquisition Corp. stock was determined under Section 358
of the Code.
In our opinion, the principal federal income tax consequences of the Option Plan
Substitution will be as follows:
1. Subsections 83(a) and 83(b) of the Code will not apply to the options
to acquire AR-CombiMatrix stock and the options to acquire AR-Acacia
Technologies stock until they are exercised, and the optionee will not
recognize taxable income on the exchange of the options.
F-4
[PricewaterhouseCoopers Letterhead]
2. The exchange of Acacia stock options for AR-CombiMatrix stock options
and AR-Acacia Technologies stock options will not give the holders of
such options benefits in addition to those that they had under the
Acacia stock options prior to the exchange.
3. The exchange of CombiMatrix stock options for AR-CombiMatrix stock
options will not give the holders of such options benefits in addition
to those that they had under the CombiMatrix stock options prior to the
exchange.
4. The status of any options to acquire Acacia common stock as incentive
stock options under Section 422 of the Code ("ISOs") will be preserved
in the options to acquire AR-CombiMatrix stock and AR-Acacia
Technologies stock received in exchange for the options to acquire
Acacia common stock.
5. The ISO status of options to acquire CombiMatrix common stock will be
preserved in the options to acquire AR-CombiMatrix stock received in
exchange for the options to acquire CombiMatrix common stock.
The opinions contained in this opinion are subject to the following
qualifications to, and limitations on, their validity and effectiveness:
1. The opinion represents PwC's view of the proper federal income tax
treatment of the issues presented based upon PwC's analysis of the
relevant federal income tax authorities as of the date hereof. The
opinion is not binding on the Internal Revenue Service, state revenue
authorities, or the courts. The Internal Revenue Service has announced
that it will not issue advance rulings on the classification of an
instrument with certain voting and liquidation rights in an issuing
corporation but whose dividend rights are determined by reference to
the earnings of a segregated portion of the issuing corporation's
assets, including assets held by a subsidiary of the issuing
corporation. There are no court decisions or other authorities bearing
directly on the classification of instruments with characteristics
similar to those of the AR-CombiMatrix stock or the AR-Acacia
Technologies stock. Accordingly, our opinion is based upon the Code,
the pertinent Treasury Department regulations and the lack of contrary
authority that cogently relates the law to pertinent facts similar to
the situation described above.
2. The opinion is based upon the Code and its legislative history, the
regulations, judicial decisions and current rulings of the Internal
Revenue Service, all as in effect on the date of the opinion. These
authorities may be amended or revoked at any time. Any changes may or
F-5
[PricewaterhouseCoopers Letterhead]
may not be retroactive with respect to the transactions entered into or
contemplated prior to the date thereof and could cause the opinion to
be or become incorrect, in whole or in part, with respect to the
federal income tax results of the transactions described herein. There
is and can be no assurance that such legislative, judicial or
administrative changes will not occur in the future. We assume no
obligation to update or modify the opinion letter to reflect any
developments that may impact the opinion from and after the date of the
opinion letter.
3. We consent to the inclusion of the opinion in Acacia's S-4 Registration
Statement to be filed with the Securities and Exchange Commission under
the Securities Act of 1933 (the "Securities Act") on or about May 3,
2002, describing the Recapitalization and the Merger (the "Registration
Statement"). We also consent to the references to this opinion and to
PricewaterhouseCoopers LLP in the Registration Statement under the
captions "Material United States Federal Income Tax Consequences of the
Recapitalization" and "Material United States Federal Income Tax
Consequences of the Merger." The issuance of this consent does not
concede that we are an "Expert" for purposes of the Securities Act.
4. The opinion depends upon the accuracy and completeness of the
background and assumptions set forth in the transmittal letter. We have
relied upon the background and assumptions set forth there, and their
sources, without any independent investigation or verification of their
accuracy or completeness. Any inaccuracy or incompleteness in our
understanding of the background and assumptions set forth herein could
adversely affect the conclusions in the opinion letter. By acceptance
of the opinion letter, Acacia as evidenced its permission for PwC to
rely upon the accuracy of the background and assumptions set forth in
the transmittal letter in performing its analysis of the federal income
tax issues in rendering the opinion. In addition, we have assumed,
without any independent verification, that all the agreements necessary
to effect the transactions contemplated by the parties as described in
the transmittal letter will be validly executed by persons who are duly
authorized to enter into such agreements on behalf of the named parties
thereto, that such agreements were valid and binding obligations of the
parties thereto in accordance with their terms, and that the
obligations thereunder were performed in the manner set forth therein.
Finally, we do not undertake, and expressly disclaim, any obligation to
monitor the background or assumptions set forth herein or any changes
thereto from and after the date of the opinion letter.
5. We express our opinions only as to matters expressly addressed herein.
PwC is not expressing its opinion as to any other aspects or
consequences of the transactions contemplated by the Acacia
acquisition, whether discussed herein or not. No opinion should be
inferred as to any other matters, including without limitation, any
other federal income tax issues with respect to such transactions
including any withholding issues or any state, local or foreign tax
treatment of such transactions or any matter incidental thereto
described herein.
Very Truly Yours,
Signed
/s/ PricewaterhouseCoopers LLP
F-6
ANNEX G
-------
[LETTERHEAD OF A.G. EDWARDS & SONS, INC.]
April 17, 2002
Special Committee to the Board of Directors
c/o CombiMatrix Corporation
6500 Harbour Heights Parkway
Mukilteo, WA 98275
Gentlemen:
You have requested our opinion as to the fairness, from a financial
point of view, to the shareholders ("Minority Shareholders") other than Acacia
Research Corporation ("Acacia") of CombiMatrix Corporation ("CombiMatrix" or the
"Company") of the consideration ("Consideration") to be received by the Minority
Shareholders in the proposed Merger ("Merger") by and among CombiMatrix, Acacia
and Combi Acquisition Corp. pursuant to the terms of the Agreement and Plan of
Reorganization (the "Agreement") signed on March 20, 2002. The Consideration to
be received by the Minority Shareholders in the Merger will consist of one share
of Acacia CombiMatrix stock (as defined in the Agreement and the Restated
Certificate of Incorporation of Acacia Research Corporation) for each share of
CombiMatrix common stock owned by the Minority Shareholders.
A.G. Edwards & Sons, Inc. ("A.G. Edwards"), as part of its investment
banking business, is regularly engaged in the valuation of businesses and their
securities in connection with mergers and acquisitions, negotiated
underwritings, competitive biddings, secondary distributions of listed and
unlisted securities, private placements and valuations for estate, corporate or
other purposes. We are not aware of any present or contemplated relationship
among A.G. Edwards, the Company, the Company's directors and officers or its
shareholders, or among A.G. Edwards, Acacia (including other related entities),
Acacia's directors and officers or shareholders, which in our opinion would
affect our ability to render a fair and independent opinion in this matter.
We are acting as exclusive financial advisor to the Special Committee
of the Board of Directors of the Company in connection with the Merger and will
receive a fee from the Company for our services pursuant to the terms of our
engagement letter with the Company dated as of March 13, 2002.
In connection with this opinion, we have reviewed and considered such
financial and other matters as we have deemed relevant, including, among other
things:
i. the signed Agreement dated March 20, 2002, and discussions with
counsel representing Acacia, CombiMatrix and the Special Committee concerning
the Agreement and other related documents;
G-1
ii. the historical and future business and operations of Acacia,
CombiMatrix and Acacia Media Technologies ("Media Technologies");
iii. the historical financial performance of Acacia through a review of
their audited financial results;
iv. the historical and forecasted financial statements for CombiMatrix
as prepared by CombiMatrix's management;
v. an investigation of the future operational and financial performance
and anticipated cash needs of CombiMatrix and Media Technologies, respectively;
vi. an investigation regarding the current operations and future
prospects of CombiMatrix and Media Technologies, primarily through discussions
with the managements of CombiMatrix and Media Technologies, respectively;
vii. the biological array processor market and the primary market
segments CombiMatrix will pursue;
viii. the market data for stocks of public companies in the same or
similar markets as CombiMatrix;
ix. an investigation of the existing patent portfolio of Media
Technologies through discussions with internal and external counsel representing
Media Technologies;
x. an investigation of the role and responsibilities of Acacia
concerning the post-merger management and operations of CombiMatrix and Media
Technologies;
xi. the history and performance of "tracking" stocks and similar
transaction structures;
xii. an investigation of studies related to marketability discounts
applied to minority interests in private companies;
xiii. Acacia's annual report on Form 10-K for its fiscal year ended
December 31, 2001, Acacia's quarterly reports on Form 10-Q for its fiscal
quarters ended March 31, 2001, June 30, 2001 and September 30, 2001, and certain
other publicly available information for the Company and Acacia; and
xiv. other analyses which A.G. Edwards deemed necessary.
In preparing our opinion, A.G. Edwards has assumed and relied upon the
accuracy and completeness of all financial and other information that was
publicly available, or supplied or otherwise made available to us by
CombiMatrix, Acacia and Media Technologies. We have not been engaged to, and
therefore we have not, verified the accuracy or completeness of any of such
information. A.G. Edwards has relied upon the assurances of the managements of
CombiMatrix, Acacia and Media Technologies that they are not aware of any facts
that would make any financial or other information inaccurate or misleading.
G-2
A.G. Edwards has been informed and assumed that financial projections supplied
to, discussed with or otherwise made available to us reflect the best currently
available estimates and judgments of the management of CombiMatrix as to the
expected future financial performance of the Company. A.G. Edwards has not
independently verified such information or assumptions nor do we express any
opinion with respect thereto.
As discussed with managements of Acacia and Media Technologies, A.G.
Edwards relied upon their statements that they had neither prepared nor reviewed
any projections or estimates of the potential revenue, income or value that
could be derived from any current or future litigation or licensing efforts
related to the patents held by Media Technologies and its related entities.
A.G. Edwards has not made any independent valuation or appraisal of the
assets or liabilities of CombiMatrix, Acacia or Media Technologies, nor have we
been furnished with any such valuations or appraisals. A.G. Edwards also did not
independently attempt to assess or value any of the intangible assets (including
goodwill) nor did it make any independent assumptions with respect to their
application in the Merger.
A.G. Edwards' opinion is necessarily based on economic, market and
other conditions as in effect on, and the information made available to us as
of, the date hereof. The analyses performed by A.G. Edwards are not necessarily
indicative of actual values or actual future results, which may be significantly
more or less favorable than suggested by such analyses. It should be understood
that, although subsequent developments may affect our opinion, A.G. Edwards does
not have any obligation to update, revise or reaffirm our opinion and it
expressly disclaims any responsibility to do so. Our opinion as expressed
herein, in any event, is limited to the fairness, from a financial point of
view, to the Minority Shareholders, of the Consideration to be received in the
Merger pursuant to the Agreement.
For purposes of rendering our opinion we have assumed in all respects
material to our analysis that the representations and warranties of each party
contained in the Agreement are true and correct, that each party will perform
all of the covenants and agreements required to be performed by it under the
Agreement and that all conditions to the consummation of the Merger will be
satisfied without waiver thereof. We have also assumed that all governmental,
regulatory and other consents and approvals contemplated by the Agreement will
be obtained and that in the course of obtaining any of those consents, no
restrictions will be imposed or waivers made that would have an adverse effect
on the contemplated benefits of the Merger.
A.G. Edwards was not engaged to and did not review, nor is it
expressing any opinion with respect to, any alternative transaction or strategic
alternatives that may be available to the Company or the Minority Shareholders.
We are not expressing any opinion as to what the value of the Company's common
stock has been or will be, nor have we considered the tax implications of the
Merger. Our opinion also does not address the merits of the underlying decision
by the Company to engage in the Merger.
In rendering its opinion, A.G. Edwards assumed that (a) the Merger will
be accounted for in accordance with U.S. Generally Accepted Accounting
Principles and (b) the Merger will be consummated on the terms contained in the
Agreement without any waiver of any material terms or conditions by CombiMarix.
G-3
It is understood that this letter is for the information of the Special
Committee of the Board of Directors and does not constitute a recommendation as
to how any holder of the outstanding shares of the Company's common stock should
vote with respect to the Merger. This opinion may not be reproduced, summarized,
excerpted from or otherwise publicly referred to without our prior written
consent.
Based upon and subject to the foregoing, it is our opinion that, as of
the date hereof, the Consideration to be received by the Minority Shareholders
in the Merger pursuant to the Agreement is fair, from a financial point of view,
to the Minority Shareholders.
Very truly yours,
A.G. EDWARDS & SONS, INC.
By: /S/ TIMOTHY C. MCQUAY
----------------------------------------
Timothy C. McQuay
Managing Director
G-4
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. 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 IX of Acacia's certificate of incorporation provides:
A director of the Corporation shall not be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the General Corporation Law of Delaware as
the same exists or may hereafter be amended. If the General Corporation Law
of Delaware 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 General Corporation Law of Delaware as so amended. Any
repeal or modification of this Article by the stockholders of the
Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time, or increase the liability
of any director of the Corporation with respect to any acts or omissions of
such director occurring prior to, such repeal or modification.
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 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT
NUMBER DESCRIPTION
------- -----------
2.1 Agreement and Plan of Merger of Acacia Research Corporation, a
California corporation, and Acacia Research Corporation, a Delaware
corporation, dated as of December 23, 1999 (1)
2.2 Agreement and Plan of Reorganization by and among Acacia Research
Corporation, Combi Acquisition Corp. and CombiMatrix Corporation dated
as of March 20, 2002 (attached as Annex A to the Prospectus/Proxy
Statement included in this Registration Statement)
3.1 Certificate of Incorporation (2)
3.2 Restated Certificate of Incorporation to be filed upon the
effectiveness of the recapitalization (attached as Annex B to the
Prospectus/Proxy Statement included in this Registration Statement)
II-1
EXHIBIT
NUMBER DESCRIPTION
------- -----------
3.3 Amended and Restated Bylaws (3)
4.1 Form of Specimen Certificate of Acacia's Common Stock (4)
5.1 Opinion of Allen Matkins Leck Gamble & Mallory LLP regarding the
validity of the securities being registered
8.1 Opinion of PricewaterhouseCoopers LLP regarding certain tax matters
(attached as Annex F to the Prospectus/Proxy Statement included in
this Registration Statement)
10.1 Acacia 1993 Stock Option Plan (7)
10.2 Form of Stock Option Agreement for Acacia 1993 Stock Option Plan (7)
10.3 Acacia 1996 Stock Option Plan, as amended (8)
10.4 Form of Option Agreement constituting the Acacia 1996 Executive Stock
Bonus Plan (9)
10.5* CombiMatrix Corporation 1995 Stock Option Plan
10.6* CombiMatrix Corporation 1998 Stock Option Plan
10.7* CombiMatrix Corporation 2000 Stock Awards Plan
10.8 2002 CombiMatrix Stock Incentive Plan (attached as Annex D to the
Prospectus/Proxy Statement included in this Registration Statement)
10.9 2002 Acacia Technologies Stock Incentive Plan (attached as Annex E to
the Prospectus/Proxy Statement included in this Registration
Statement)
10.10 Agreement between Acacia Research and Paul Ryan (10)
10.11 Lease Agreement dated April 30, 1998, between Acacia and EOP-Pasadena
Towers, L.L.C., a Delaware limited liability company doing business as
EOP-Pasadena, LLC (5)
10.12 Lease Agreement between Soundbreak.com Incorporated and 8730 Sunset
Towers and related Guaranty (6)
10.13 First Amendment dated June 26, 2000, to Lease Agreement between Acacia
and Pasadena Towers, L.L.C. (11)
10.14 Sublease dated November 30, 2001, between Acacia and Jenkens &
Gilchrist (11)
10.15 Lease Agreement dated January 28, 2002, between Acacia and The Irvine
Company (11)
10.16* Form of Market Standoff Agreement
10.17 Settlement Agreement dated September 30, 2002, by and among Acacia,
CombiMatrix Corporation, Donald D. Montgomery, Ph.D. and Nanogen, Inc.
10.18+ Research & Development Agreement dated September 25, 2002, between
CombiMatrix Corporation and Roche Diagnostics GmbH
10.19+ License Agreement dated September 25, 2002 between CombiMatrix
Corporation and Roche Diagnostics GmbH
21.1 List of Subsidiaries (11)
23.1 Consent of PricewaterhouseCoopers LLP (relating to the financial
statements of Acacia Research Corporation)
23.2 Consent of PricewaterhouseCoopers LLP (relating to the financial
statements of CombiMatrix Corporation)
23.3 Consent of PricewaterhouseCoopers LLP (relating to the financial
statements of the Acacia Technologies Group and the CombiMatrix Group)
23.4 Consent of Allen Matkins Leck Gamble & Mallory LLP (included within
the opinion filed as Exhibit 5.1)
23.5 Consent of PricewaterhouseCoopers LLP (included within the opinion
attached as Annex F to the Prospectus/Proxy Statement included in this
Registration Statement)
24.1* Power of Attorney
99.1 Form of Proxy
99.2 Consent of A.G. Edwards & Sons, Inc.
----------
* Previously filed.
+ Portions of this exhibit have been omitted pursuant to a request for
confidential treatment and have been filed separately with the United
States Securities and Exchange Commission.
II-2
(1) Incorporated by reference from Acacia's Report on Form 8-K filed on
December 30, 1999 (SEC File No. 000-26068).
(2) Incorporated by reference as Appendix A to the Definitive Proxy Statement
on Schedule 14A filed on November 2, 1999 (SEC File No. 000-26068) and to
the Definitive Proxy Statement on Schedule 14A filed on April 10, 2000 (SEC
File No. 000-26068).
(3) Incorporated by reference from Acacia's Quarterly Report on Form 10-Q filed
on August 10, 2001 (SEC File No. 000-26068).
(4) Incorporated by reference from Amendment No. 2 on Form 8-A/A filed on
December 30, 1999 (SEC File No. 000-26068).
(5) Incorporated by reference from Acacia's Quarterly Report on Form 10-Q filed
on August 14, 1998 (SEC File No. 000-26068).
(6) Incorporated by reference from Acacia's Quarterly Report on Form 10-Q filed
on November 15, 1999 (SEC File No. 000-26068).
(7) Incorporated by reference from Acacia's Registration Statement on Form SB-2
(33-87368-L.A.), which became effective under the Securities Act of 1933,
as amended, on June 15, 1995.
(8) Incorporated by reference as Appendix A to the Definitive Proxy Statement
on Schedule 14A filed on April 15, 2002 (SEC File No. 000-26068).
(9) Incorporated by reference from Acacia's Definitive Proxy as Appendix A
Statement on Schedule 14A filed on April 26, 1996 (SEC File No. 000-26068).
(10) Incorporated by reference from Acacia's Annual Report on Form 10-K for the
year ended December 31, 1997 filed on March 30, 1998 (SEC File No.
000-26068).
(11) Incorporated by reference from Acacia's Annual Report on Form 10-K for the
year ended December 31, 2001 filed on March 27, 2002 (SEC File No.
000-26068).
ITEM 22. 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
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) of this section
do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and 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
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.
II-3
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. The undersigned registrant hereby undertakes as follows: That prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other Items of the applicable form.
d. The registrant undertakes that every prospectus (i) that is filed pursuant to
the immediately preceding paragraph, or (ii) that purports to meet the
requirements of section 10(a)(3) of the Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes 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.
e. 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 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 Act and will be governed by the final adjudication of
such issue.
f. The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
g. The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment No. 6 to registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized.
Dated: November 7, 2002 ACACIA RESEARCH CORPORATION
/s/ Paul R. Ryan
----------------------------------------
Paul R. Ryan
Chairman of the Board
and Chief Executive Officer
(Authorized Signatory)
Pursuant to the requirements of the Securities Act of 1933, the following
persons have signed this registration statement in the capacities and on the
dates indicated below.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Paul R. Ryan Chairman of the Board and November 7, 2002
------------------------------------- Chief Executive Officer
Paul R. Ryan (Principal Chief Executive)
* Director and President November 7, 2002
-------------------------------------
Robert L. Harris, II
* Chief Financial Officer November 7, 2002
------------------------------------- (Principal Financial Officer)
Clayton J. Haynes
* Director November 7, 2002
-------------------------------------
Thomas B. Akin
* Director November 7, 2002
-------------------------------------
Fred A. de Boom
* Director November 7, 2002
-------------------------------------
Edward W. Frykman
* Director November 7, 2002
-------------------------------------
G. Louis Graziadio, III
* By: /s/ Paul R. Ryan
------------------------------
Paul R. Ryan
Attorney-in-Fact
II-5
EXHIBIT INDEX
Pursuant to Item 601(a)(2) of Regulation S-K, this exhibit index
immediately precedes the exhibits.
EXHIBIT
NUMBER DESCRIPTION
------- -----------
2.1 Agreement and Plan of Merger of Acacia Research Corporation, a
California corporation, and Acacia Research Corporation, a Delaware
corporation, dated as of December 23, 1999 (1)
2.2 Agreement and Plan of Reorganization by and among Acacia Research
Corporation, Combi Acquisition Corp. and CombiMatrix Corporation dated
as of March 20, 2002 (attached as Annex A to the Prospectus/Proxy
Statement included in this Registration Statement)
3.1 Certificate of Incorporation (2)
3.2 Restated Certificate of Incorporation to be filed upon the
effectiveness of the recapitalization (attached as Annex B to the
Prospectus/Proxy Statement included in this Registration Statement)
3.3 Amended and Restated Bylaws (3)
4.1 Form of Specimen Certificate of Acacia's Common Stock (4)
5.1 Opinion of Allen Matkins Leck Gamble & Mallory LLP regarding the
validity of the securities being registered
8.1 Opinion of PricewaterhouseCoopers LLP regarding certain tax matters
(attached as Annex F to the Prospectus/Proxy Statement included in
this Registration Statement)
10.1 Acacia 1993 Stock Option Plan (7)
10.2 Form of Stock Option Agreement for Acacia 1993 Stock Option Plan (7)
10.3 Acacia 1996 Stock Option Plan, as amended (8)
10.4 Form of Option Agreement constituting the Acacia 1996 Executive Stock
Bonus Plan (9)
10.5* CombiMatrix Corporation 1995 Stock Option Plan
10.6* CombiMatrix Corporation 1998 Stock Option Plan
10.7* CombiMatrix Corporation 2000 Stock Awards Plan
10.8 2002 CombiMatrix Stock Incentive Plan (attached as Annex D to the
Prospectus/Proxy Statement included in this Registration Statement)
10.9 2002 Acacia Technologies Stock Incentive Plan (attached as Annex E to
the Prospectus/Proxy Statement included in this Registration
Statement)
10.10 Agreement between Acacia Research and Paul Ryan (10)
10.11 Lease Agreement dated April 30, 1998, between Acacia and EOP-Pasadena
Towers, L.L.C., a Delaware limited liability company doing business as
EOP-Pasadena, LLC (5)
10.12 Lease Agreement between Soundbreak.com Incorporated and 8730 Sunset
Towers and related Guaranty (6)
10.13 First Amendment dated June 26, 2000, to Lease Agreement between Acacia
and Pasadena Towers, L.L.C. (11)
10.14 Sublease dated November 30, 2001, between Acacia and Jenkens &
Gilchrist (11)
10.15 Lease Agreement dated January 28, 2002, between Acacia and The Irvine
Company (11)
10.16* Form of Market Standoff Agreement
10.17 Settlement Agreement dated September 30, 2002, by and among Acacia,
CombiMatrix Corporation, Donald D. Montgomery, Ph.D. and Nanogen, Inc.
10.18+ Research & Development Agreement dated September 25, 2002, between
CombiMatrix Corporation and Roche Diagnostics GmbH
10.19+ License Agreement dated September 25, 2002 between CombiMatrix
Corporation and Roche Diagnostics GmbH
21.1 List of Subsidiaries (11)
23.1 Consent of PricewaterhouseCoopers LLP (relating to the financial
statements of Acacia Research Corporation)
23.2 Consent of PricewaterhouseCoopers LLP (relating to the financial
statements of CombiMatrix Corporation)
23.3 Consent of PricewaterhouseCoopers LLP (relating to the financial
statements of the Acacia Technologies Group and the CombiMatrix Group)
EXHIBIT
NUMBER DESCRIPTION
------- -----------
23.4 Consent of Allen Matkins Leck Gamble & Mallory LLP (included within
the opinion filed as Exhibit 5.1)
23.5 Consent of PricewaterhouseCoopers LLP (included within the opinion
attached as Annex F to the Prospectus/Proxy Statement included in this
Registration Statement)
24.1* Power of Attorney (included on page II-5)
99.1 Form of Proxy
99.2 Consent of A.G. Edwards & Sons, Inc.
----------
* Previously filed.
+ Portions of this exhibit have been omitted pursuant to a request for
confidential treatment and have been filed separately with the United
States Securities and Exchange Commission.
(1) Incorporated by reference from Acacia's Report on Form 8-K filed on
December 30, 1999 (SEC File No. 000-26068).
(2) Incorporated by reference as Appendix A to the Definitive Proxy Statement
on Schedule 14A filed on November 2, 1999 (SEC File No. 000-26068) and to
the Definitive Proxy Statement on Schedule 14A filed on April 10, 2000 (SEC
File No. 000-26068).
(3) Incorporated by reference from Acacia's Quarterly Report on Form 10-Q filed
on August 10, 2001 (SEC File No. 000-26068).
(4) Incorporated by reference from Amendment No. 2 on Form 8-A/A filed on
December 30, 1999 (SEC File No. 000-26068).
(5) Incorporated by reference from Acacia's Quarterly Report on Form 10-Q filed
on August 14, 1998 (SEC File No. 000-26068).
(6) Incorporated by reference from Acacia's Quarterly Report on Form 10-Q filed
on November 15, 1999 (SEC File No. 000-26068).
(7) Incorporated by reference from Acacia's Registration Statement on Form SB-2
(33-87368-L.A.), which became effective under the Securities Act of 1933,
as amended, on June 15, 1995.
(8) Incorporated by reference as Appendix A to the Definitive Proxy Statement
on Schedule 14A filed on April 15, 2002 (SEC File No. 000-26068).
(9) Incorporated by reference from Acacia's Definitive Proxy as Appendix A
Statement on Schedule 14A filed on April 26, 1996 (SEC File No. 000-26068).
(10) Incorporated by reference from Acacia's Annual Report on Form 10-K for the
year ended December 31, 1997 filed on March 30, 1998 (SEC File No.
000-26068).
(11) Incorporated by reference from Acacia's Annual Report on Form 10-K for the
year ended December 31, 2001 filed on March 27, 2002 (SEC File No.
000-26068).
-2-