-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PC0FIJ1X+cvpEBJLBt5Ww9CNsBwJhnA8qH4PaNc3+LK6WD+esGEe2hDMK36SfNpx cP7rQE4eXGdJxSEH5DFQVQ== 0001019687-04-000983.txt : 20040504 0001019687-04-000983.hdr.sgml : 20040504 20040504160047 ACCESSION NUMBER: 0001019687-04-000983 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20040331 FILED AS OF DATE: 20040504 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ACACIA RESEARCH CORP CENTRAL INDEX KEY: 0000934549 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPONENTS & ACCESSORIES [3670] IRS NUMBER: 954405754 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-26068 FILM NUMBER: 04777805 BUSINESS ADDRESS: STREET 1: 500 NEWPORT CENTER DRIVE STREET 2: 7TH FLOOR CITY: NEWPORT BEACH STATE: CA ZIP: 92660 BUSINESS PHONE: 9494808300 MAIL ADDRESS: STREET 1: 500 NEWPORT CENTER DRIVE STREET 2: # CITY: NEWPORT BEACH STATE: CA ZIP: 92660 10-Q 1 acacia_10q-033104.txt ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 _____________ FORM 10-Q QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2004 COMMISSION FILE NUMBER 0-26068 ACACIA RESEARCH CORPORATION --------------------------- (Exact Name of Registrant as Specified in Its Charter) DELAWARE 95-4405754 -------- ---------- (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 500 NEWPORT CENTER DRIVE, NEWPORT BEACH, CA 92660 ------------------------------------------- ----- (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: (949) 480-8300 -------------- Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to filing requirements for the past 90 days. Yes [X] No [ ] Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). Yes [X] No [ ] As of April 30, 2004, 19,781,693 shares of Acacia Research-Acacia Technologies common stock were issued and outstanding. As of April 30, 2004, 30,871,566 shares of Acacia Research-CombiMatrix common stock were issued and outstanding. ================================================================================ ACACIA RESEARCH CORPORATION TABLE OF CONTENTS
PART I. FINANCIAL INFORMATION Item 1. Financial Statements Acacia Research Corporation Consolidated Financial Statements Consolidated Balance Sheets as of March 31, 2004 and December 31, 2003 (Unaudited)....................................................... 1 Consolidated Statements of Operations and Comprehensive Loss for the Three Months Ended March 31, 2004 and 2003 (Unaudited).............................. 2 Consolidated Statements of Cash Flows for the Three Months Ended March 31, 2004 and 2003 (Unaudited)................................................. 3 Notes to Consolidated Financial Statements (Unaudited).............................. 4 *CombiMatrix Group Financial Statements Balance Sheets as of March 31, 2004 and December 31, 2003 (Unaudited)............... 15 Statements of Operations for the Three Months Ended March 31, 2004 and 2003 (Unaudited)................................................. 16 Statements of Cash Flows for the Three Months Ended March 31, 2004 and 2003 (Unaudited)................................................. 17 Notes to Financial Statements (Unaudited)........................................... 18 *Acacia Technologies Group Financial Statements Balance Sheets as of March 31, 2004 and December 31, 2003 (Unaudited)............... 22 Statements of Operations for the Three Months Ended March 31, 2004 and 2003 (Unaudited)................................................. 23 Statements of Cash Flows for the Three Months Ended March 31, 2004 and 2003 (Unaudited)................................................. 24 Notes to Financial Statements (Unaudited)........................................... 25 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations............................................................... 29 Item 3. Quantitative and Qualitative Disclosures About Market Risk.......................... 63 Item 4. Controls and Procedures............................................................. 63 i PART II. OTHER INFORMATION Item 1. Legal Proceedings................................................................... 64 Item 6. Exhibits and Reports on Form 8-K.................................................... 65 SIGNATURES................................................................................................ 66 EXHIBIT INDEX ............................................................................................ 67
*NOTE: We are presenting the Acacia Research Corporation consolidated unaudited interim financial statements and the separate unaudited interim 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 financial performance of the two divisions and to provide investors with information regarding the potential value and operating results 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 consolidated 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. Acacia Research Corporation, and not the individual groups, is the issuer of the securities. Holders of the two securities are stockholders of Acacia Research Corporation and do not have a separate and exclusive interest in the respective groups. ii ACACIA RESEARCH CORPORATION CONSOLIDATED BALANCE SHEETS (IN THOUSANDS, EXCEPT SHARE AND PER SHARE INFORMATION) (UNAUDITED)
MARCH 31, DECEMBER 31, 2004 2003 ------------- ------------- ASSETS Current assets: Cash and cash equivalents .................................................. $ 32,982 $ 31,949 Short-term investments ..................................................... 17,962 18,551 Accounts receivable, net of allowance for doubtful accounts of $0 (2004) and $145 (2003) ............................................ 339 323 Prepaid expenses, inventory, and other assets .............................. 1,522 1,180 ------------- ------------- Total current assets ............................................... 52,805 52,003 Property and equipment, net of accumulated depreciation .......................... 2,552 2,823 Patents, net of accumulated amortization of $9,610 (2004) and $9,210 (2003)....... 13,284 13,683 Goodwill ......................................................................... 21,200 21,200 Other assets ..................................................................... 332 331 ------------- ------------- $ 90,173 $ 90,040 ============= ============= LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable, accrued expenses and other ............................... $ 3,797 $ 3,244 Current portion of deferred revenues ....................................... 647 18,108 ------------- ------------- Total current liabilities .......................................... 4,444 21,352 Deferred income taxes ............................................................ 3,190 3,260 Deferred revenues, net of current portion ........................................ 3,920 3,901 Other liabilities ................................................................ 1,257 -- ------------- ------------- Total liabilities ........................................................ 12,811 28,513 ------------- ------------- Minority interests ............................................................... 1,127 1,127 ------------- ------------- Commitments and contingencies (Note 8) Redeemable Stockholders' equity: Preferred stock Acacia Research Corporation, par value $0001 per share; 10,000,000 shares authorized; no shares issued or outstanding ........ -- -- Common stock Acacia Research - Acacia Technologies stock, par value $0.001 per share; 50,000,000 shares authorized; 19,781,693 and 19,739,984 shares issued and outstanding as of March 31, 2004 and December 31, 2003, respectively .................................. 20 20 Acacia Research - CombiMatrix stock, par value $0.001 per share; 50,000,000 shares authorized; 27,766,703 and 26,328,122 shares issued and outstanding as of March 31, 2004 and December 31, 2003, respectively ......................................................... 28 26 Additional paid-in capital ................................................. 249,195 244,517 Deferred stock compensation ................................................ (521) (766) Accumulated comprehensive income ........................................... 15 8 Accumulated deficit ........................................................ (172,502) (183,405) ------------- ------------- Total stockholders' equity ......................................... 76,235 60,400 ------------- ------------- $ 90,173 $ 90,040 ============= ============= THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED FINANCIAL STATEMENTS. 1
ACACIA RESEARCH CORPORATION CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME (LOSS) (IN THOUSANDS, EXCEPT SHARE AND PER SHARE INFORMATION) (UNAUDITED)
FOR THE THREE MONTHS ENDED -------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Revenues: Research and development contract .................................... $ 17,302 $ -- License fees ......................................................... 599 6 Government contract .................................................. 217 -- Service contracts .................................................... 81 7 Products ............................................................. 16 209 ------------- ------------- Total revenues ........................................... 18,215 222 ------------- ------------- Operating expenses: Cost of product sales ................................................ 4 77 Research and development expenses .................................... 1,588 2,335 Non-cash stock compensation amortization - research and development .. 69 2 Marketing, general and administrative expenses ....................... 3,886 4,255 Non-cash stock compensation amortization - marketing, general and administrative ........................................ 334 138 Amortization of patents .............................................. 399 400 Legal settlement charges ............................................. 1,257 -- ------------- ------------- Total operating expenses ................................. 7,537 7,207 ------------- ------------- Operating income (loss) .................................. 10,678 (6,985) ------------- ------------- Other income: Interest income ...................................................... 158 215 Realized gains on short-term investments ............................. -- 37 ------------- ------------- Total other income ....................................... 158 252 ------------- ------------- Income (loss) from operations before income taxes and minority interests.... 10,836 (6,733) Benefit for income taxes ................................................... 67 60 ------------- ------------- Income (loss) from operations before minority interests .................... 10,903 (6,673) Minority interests ......................................................... -- 6 ------------- ------------- Net income (loss) .......................................................... 10,903 (6,667) ------------- ------------- Unrealized gains (losses) on short-term investments .................. 2 (8) Unrealized gains (losses) on foreign currency translation ............ 6 (7) ------------- ------------- Comprehensive income (loss) ................................................ $ 10,911 $ (6,682) ============= ============= Earnings (loss) per common share: Attributable to the Acacia Technologies group: Net income (loss) ....................................................... $ (989) $ (1,494) Basic and diluted loss per share ........................................ (0.05) (0.08) Attributable to the CombiMatrix group: Basic Net income (loss) ....................................................... $ 11,892 $ (5,173) Basic net income (loss) per share ....................................... 0.44 (0.23) Diluted Net income (loss) ....................................................... $ 11,892 $ (5,173) Diluted net income (loss) per share ..................................... 0.41 (0.23) Weighted average shares: Acacia Research - Acacia Technologies stock: Basic and diluted ................................................... 19,752,335 19,640,808 ============= ============= Acacia Research - CombiMatrix stock: Basic ............................................................... 27,274,627 22,983,278 ============= ============= Diluted ............................................................. 29,233,817 22,983,278 ============= ============= THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED FINANCIAL STATEMENTS. 2
ACACIA RESEARCH CORPORATION CONSOLIDATED STATEMENTS OF CASH FLOWS (IN THOUSANDS) (UNAUDITED)
FOR THE THREE MONTHS ENDED --------------------------------------- MARCH 31, 2004 MARCH 31, 2003 ----------------- ----------------- Cash flows from operating activities: Net income (loss) from operations ........................................... $ 10,903 $ (6,667) Adjustments to reconcile net income (loss) from operations to net cash used in operating activities: Depreciation and amortization .......................................... 712 767 Minority interests ..................................................... -- (6) Non-cash stock compensation amortization ............................... 403 140 Deferred tax benefit ................................................... (70) (70) Non-cash legal settlement charge ....................................... 1,257 -- Other .................................................................. (27) 121 Changes in assets and liabilities: Accounts receivable .................................................... (16) 301 Prepaid expenses, inventory and other assets ........................... (221) (397) Accounts payable, accrued expenses and other ........................... 671 (250) Deferred revenues ...................................................... (17,442) 1,508 ----------------- ----------------- Net cash used in operating activities from continuing operations ....... (3,830) (4,553) Net cash used in operating activities from discontinued operations ..... (87) (86) ----------------- ----------------- Net cash used in operating activities .................................. (3,917) (4,639) ----------------- ----------------- Cash flows from investing activities: Purchase of property and equipment, net ................................ (97) (24) Purchase of available-for-sale investments ............................. (13,605) (469) Sale of available-for-sale investments ................................. 14,196 2,462 ----------------- ----------------- Net cash provided by investing activities from continuing operations ... 494 1,969 Net cash used in investing activities from discontinued operations ..... -- (344) ----------------- ----------------- Net cash provided by investing activities .............................. 494 1,625 ----------------- ----------------- Cash flows from financing activities: Proceeds from the exercise of stock options and warrants ............... 4,450 -- ----------------- ----------------- Net cash provided by financing activities .............................. 4,450 -- ----------------- ----------------- Effect of exchange rate on cash ............................................... 6 (7) ----------------- ----------------- Increase (decrease) in cash and cash equivalents .............................. 1,033 (3,021) Cash and cash equivalents, beginning .......................................... 31,949 43,083 ----------------- ----------------- Cash and cash equivalents, ending ............................................. $ 32,982 $ 40,062 ================= ================= THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED FINANCIAL STATEMENTS. 3
ACACIA RESEARCH CORPORATION NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) 1. BASIS OF PRESENTATION AND DESCRIPTION OF BUSINESS BASIS OF PRESENTATION. The accompanying unaudited consolidated financial statements 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 have been omitted or condensed in accordance with quarterly reporting requirements of the Securities and Exchange Commission. These interim consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto for the year ended December 31, 2003, as reported by us in our Annual Report on Form 10-K. The year-end consolidated balance sheet data was derived from audited financial statements but does not include all disclosures required by accounting principles generally accepted in the United States of America. The accompanying consolidated financial statements include the accounts of Acacia Research Corporation and its wholly owned and majority-owned subsidiaries. Material intercompany transactions and balances have been eliminated in consolidation. The consolidated financial statements of Acacia Research Corporation 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 March 31, 2004 and results of operations and cash flows for the interim periods presented. The results of operations for the three months ended March 31, 2004 are not necessarily indicative of the results to be expected for the entire year. Acacia Research Corporation ("we," "us" and "our") is comprised of two operating groups. Our life sciences business, referred to as the "CombiMatrix group," is comprised of our wholly owned subsidiary, CombiMatrix Corporation and CombiMatrix Corporation's wholly owned subsidiary, CombiMatrix K.K. CombiMatrix Corporation is a life sciences 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 applications in the areas of genomics, proteomics, biosensors, drug discovery, drug development, diagnostics, combinatorial chemistry, material sciences and nanotechnology. CombiMatrix K.K., a Japanese corporation located in Tokyo, is exploring opportunities for CombiMatrix Corporation's active array system with pharmaceutical and biotechnology companies in the Asian market. Our intellectual property licensing business, referred to as the "Acacia Technologies group," acquires, develops and licenses intellectual property, and is comprised primarily of Acacia Research Corporation's wholly owned subsidiaries, Acacia Media Technologies Corporation ("Acacia Media Technologies") and Soundview Technologies, Inc. ("Soundview Technologies"). The Acacia Technologies group is responsible for the development, acquisition, licensing and protection of intellectual property and proprietary technologies and is pursuing additional licensing and strategic business alliances with leading companies in the rapidly growing intellectual property licensing industry. RECAPITALIZATION TRANSACTION On December 11, 2002, our stockholders voted in favor of a recapitalization transaction, which became effective on December 13, 2002, whereby we created two new classes of common stock called Acacia Research-CombiMatrix stock ("AR-CombiMatrix stock") and Acacia Research-Acacia Technologies stock ("AR-Acacia Technologies stock"), and divided our existing Acacia Research Corporation common stock into shares of the two new classes of common stock. AR-CombiMatrix stock is intended to reflect separately the performance of Acacia Research Corporation's CombiMatrix group. AR-Acacia Technologies stock is intended to reflect separately the performance of Acacia Research Corporation's Acacia Technologies group. Although the AR-CombiMatrix stock and the AR-Acacia Technologies stock are intended to reflect the performance of our different business groups, they are both classes of common stock of Acacia Research Corporation and are not stock issued by the respective groups. SEPARATE GROUP PRESENTATION. 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 are stockholders of Acacia Research Corporation. As a result, holders of AR-CombiMatrix stock and AR-Acacia Technologies stock continue to be subject to all of the risks of an investment in Acacia Research Corporation and all of its businesses, assets and 4 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. 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. 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES REVENUE RECOGNITION. We recognize revenue in accordance with Staff Accounting Bulletin No. 104, "Revenue Recognition" ("SAB No. 104") and related authoritative pronouncements. Revenues from multiple-element arrangements are accounted for in accordance with Emerging Issues Task Force ("EITF") Issue 00-21, "Revenue Arrangements with Multiple Deliverables." Revenue is recognized 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. COMBIMATRIX GROUP Revenues from multiple-element arrangements involving license fees, up-front payments and milestone payments, which are received and/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. Revenues from government grants and contracts are recognized in accordance with Accounting Research Bulletin ("ARB") No. 43, "Government Contracts," and related pronouncements. Accordingly, revenues are recognized under the percentage-of-completion method of accounting, using the cost-to-cost approach to measure completeness at each reporting period. Under the percentage-of-completion method of accounting, contract revenues and expenses are recognized in the period that work is performed based on the percentage of actual incurred costs to estimated total contract costs. Actual contract costs and cost estimates include direct charges for labor and materials and indirect charges for labor, overhead and certain general and administrative charges. Contract change orders and claims are included when they can be reliably estimated and are considered probable. For contracts that extend over a one-year period, revisions in contract cost estimates, if they occur, have the effect of adjusting current period earnings applicable to performance in prior periods. Should current contract estimates indicate an overall future loss to be incurred, a provision is made for the total anticipated loss in the current period. Revenue from the sale of products and services is recognized when delivery has occurred or services have been rendered. 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 current. Deferred revenues will be recognized as revenue in future periods when the applicable revenue recognition criteria as described above are met. ACACIA TECHNOLOGIES GROUP Under the terms of our digital media transmission ("DMT") license agreements, the Acacia Technologies group grants an annual non-exclusive license for the use of its patented DMT technology. In most instances, our license agreements provide for recurring royalty payments for each year that the license agreements are in effect through the expiration of the patents. Pursuant to the terms of our DMT license agreements, once executed, the Acacia Technologies group has no further obligations with respect to the grant of the annual license each year. License fees paid to and recognized as revenue by the Acacia Technologies group are non-refundable. 5 PER UNIT ROYALTIES. Revenue generated from license agreements that provide for the calculation of royalties on a per-unit basis are accrued and recognized as revenue in the period earned, provided that amounts are fixed or determinable and collectibility is reasonably assured. PERCENTAGE OF LICENSEE SALES ROYALTIES. Certain license agreements provide for the calculation of license fees based on a licensee's actual quarterly sales applied to a contractual royalty rate. Licensees that pay license fees on a quarterly basis generally report actual quarterly sales information and related quarterly license fees due to the Acacia Technologies group within 30 to 45 days after the end of the quarter in which such activity takes place. Consequently, the Acacia Technologies group recognizes revenue from these licensing agreements on a three-month lag basis, in the quarter following the quarter of sales, provided amounts are fixed or determinable and collectibility is reasonably assured. The lag method described above allows for the receipt of licensee royalty reports prior to the recognition of revenue. MINIMUM UPFRONT ANNUAL ROYALTIES. Certain license agreements provide for the calculation and payment of a minimum upfront annual license fee, based upon a licensee's expected annual sales during each annual license term. These license fee payments are deferred and amortized to revenue on a straight-line basis over the annual license term. To the extent actual annual royalties reported at the conclusion of each annual license term exceed the amount prepaid, the additional royalties are recognized in revenue in the quarter following the annual license term provided that amounts are fixed or determinable and collectibility is reasonably assured. License fee payments received by the Acacia Technologies group that do not meet the revenue recognition criteria described above are deferred until the revenue recognition criteria are met. The Acacia Technologies group assesses collection of accrued license fees based on a number of factors, including past transaction history and credit-worthiness. If it is determined that collection is not reasonably assured, the fee is recognized when collectibility becomes reasonably assured, assuming all other revenue recognition criteria have been met, which is generally upon receipt of cash. As a result of our licensing and any related intellectual property enforcement activities that we choose to conduct, we may recognize royalty revenues that relate to prior period infringements by licensees. Differences between amounts initially recognized and amounts subsequently audited or reported as an adjustment to those amounts will be recognized in the period the adjustment is determined as a change in accounting estimate. INVENTORY. Inventory, which consists primarily of raw materials to be used in the production of the CombiMatrix group's array products, is stated at the lower of cost or market using the first-in, first-out method. STOCK-BASED COMPENSATION. Acacia Research Corporation has two stock-based employee compensation plans, the 2002 CombiMatrix Stock Incentive Plan and the 2002 Acacia Technologies Stock Incentive Plan. 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 generally 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"), as amended by SFAS No. 148 "Accounting for Stock-Based Compensation--Transition and Disclosure--an amendment of SFAS No. 123" ("SFAS No. 148"), 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. 6 The following table illustrates the effect on net income (loss) and income (loss) per share if Acacia Research Corporation had applied the fair value recognition provisions of SFAS No. 123 (in thousands, except per share data):
AR-ACACIA TECHNOLOGIES STOCK AR-COMBIMATRIX STOCK THREE MONTHS ENDED THREE MONTHS ENDED ------------------------------- ------------------------------- MARCH 31, 2004 MARCH 31, 2003 MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- -------------- -------------- Income (loss) from operations as reported .................... $ (989) $ (1,494) $ 11,892 $ (5,173) Add: Stock-based compensation, intrinsic value method reported in net income, net of tax and minority interests ................................................. -- -- 238 69 Deduct: Pro forma stock-based compensation fair value method, net of tax and minority interests ................. (562) (1,078) (1,772) (2,782) Income (loss) from operations, pro forma ..................... (1,551) (2,572) 10,358 (7,886) Basic income (loss) per share from operations as reported .... (0.05) (0.08) 0.44 (0.23) Basic income (loss) per share from operations, pro forma ..... (0.08) (0.13) 0.38 (0.34) Diluted income (loss) per share from operations as reported .................................................. (0.05) (0.08) 0.41 (0.23) Diluted income (loss) per share from operations, pro forma ... (0.08) (0.13) 0.35 (0.34)
The fair value of AR-Acacia Technologies stock options and AR-CombiMatrix stock options was determined using the Black-Scholes option-pricing model, assuming volatility of approximately 100%, with expected lives of approximately five years and no expected dividends. IMPAIRMENT OF LONG-LIVED ASSETS AND GOODWILL. We review long-lived assets and intangible assets for potential impairment annually and 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. Goodwill is subject to a periodic review for potential impairment at a reporting unit level. Reviews for potential impairment must occur at least annually and may be performed earlier, if circumstances indicate that an impairment may have occurred. Acacia Research Corporation has elected to perform its annual tests for indications of goodwill impairment as of December 31 of each year. Our three reporting units are: 1) Acacia Media Technologies Corporation and 2) Soundview Technologies, Inc., which are the primary components of the Acacia Technologies group, and 3) the CombiMatrix group. The fair values of our reporting units are estimated using a discounted cash flow analysis. There can be no assurance that future goodwill impairment tests will not result in a charge to earnings. 3. EARNINGS PER SHARE EARNINGS PER SHARE. Earnings per share for each class of common stock is computed by dividing the earnings allocated to each class of common stock by the weighted average number of outstanding shares of that class of common stock. Diluted earnings per share is computed by dividing the loss allocated to each class of common stock by the weighted average number of outstanding shares of that class of common stock including the dilutive effect of common stock equivalents. Potentially dilutive common stock equivalents primarily consist of employee stock options and warrants. The earnings or losses allocated to each class of common stock are determined by Acacia Research Corporation's board of directors. This determination is generally based on the net income or loss amounts of the corresponding group determined in accordance with accounting principles generally accepted in the United States of America, consistently applied. Acacia Research Corporation believes this method of allocation is systematic and reasonable. The Acacia Research Corporation board of directors can, at its discretion, change the method of allocating earnings or losses to each class of common stock at any time. Management currently has no plans to change allocation methods. 7
The following table presents a reconciliation of basic and diluted loss per share: FOR THE THREE MONTHS ENDED ---------------------------------- MARCH 31, 2004 MARCH 31, 2003 --------------- --------------- ACACIA RESEARCH - ACACIA TECHNOLOGIES STOCK - ------------------------------------------- Basic weighted average number of common shares outstanding ....................... 19,752,335 19,640,808 Dilutive effect of outstanding stock options and warrants ........................ -- -- --------------- --------------- Diluted weighted average number of common and potential common shares outstanding .............................................. 19,752,335 19,640,808 =============== =============== Potential AR-Acacia Technologies stock common shares excluded from the per share calculation because the effect of their inclusion would be anti-dilutive.... 1,436,257 786 =============== =============== ACACIA RESEARCH - COMBIMATRIX STOCK - ----------------------------------- Basic weighted average number of common shares outstanding ....................... 27,274,627 22,983,278 Dilutive effect of outstanding stock options and warrants(1) ..................... 1,959,190 -- --------------- --------------- Diluted weighted average number of common and potential common shares outstanding .............................................. 29,233,817 22,983,278 =============== =============== Potential AR-CombiMatrix stock common shares excluded from the per share calculation because the effect of their inclusion would be anti-dilutive ... -- 441,750 =============== ===============
- --------------- (1) Includes 84,299 shares of potentially dilutive AR-CombiMatrix stock issuable as of March 31, 2004 related to certain anti-dilution provisions of the September 2002 settlement agreement between CombiMatrix Corporation, Dr. Donald Montgomery, and Nanogen, Inc. 4. GOODWILL AND INTANGIBLES The Acacia Technologies group had $1,776,000 of goodwill at March 31, 2004 and December 31, 2003. The CombiMatrix group had $19,424,000 of goodwill at March 31, 2004 and December 31, 2003. Acacia Research Corporation's only identifiable intangible assets at March 31, 2004 and December 31, 2003 are patents. The gross carrying amounts and accumulated amortization as of March 31, 2004 and December 31, 2003, related to patents, by segment, are as follows (in thousands):
ACACIA TECHNOLOGIES GROUP COMBIMATRIX GROUP ------------------------------- ------------------------------- MARCH 31, DECEMBER 31, MARCH 31, DECEMBER 31, 2004 2003 2004 2003 ------------- ------------- ------------- ------------- Gross carrying amount - patents.... $ 10,798 $ 10,798 $ 12,095 $ 12,095 Accumulated amortization .......... (7,357) (7,232) (2,252) (1,978) ------------- ------------- ------------- ------------- Patents, net ...................... $ 3,441 $ 3,566 $ 9,843 $ 10,117 ============= ============= ============= =============
See Note 10 for patent amortization expense by segment for the three months ended March 31, 2004 and 2003. Annual aggregate amortization expense for each of the next five years through December 31, 2008 is estimated to be $1,595,000 per year ($500,000 for the Acacia Technologies group and $1,095,000 for the CombiMatrix group). At March 31, 2004 and December 31, 2003, all of our acquired intangible assets other than goodwill were subject to amortization. 5. REVENUES In March 2004, the CombiMatrix group completed all phases of its research and development agreement with Roche Diagnostics, GmbH ("Roche"). As a result of completing all of its obligations under this agreement and in accordance with the CombiMatrix group's revenue recognition policies for multiple-element arrangements, the CombiMatrix group recognized all previously deferred Roche related contract revenues totaling $17,302,000 during the first quarter of 2004. 8 6. INCOME TAXES We estimate that there will be sufficient losses from operations in the current fiscal year to offset any taxable income related to the Roche deferred contract revenues totaling $17,302,000 recognized during the three months ended March 31, 2004, resulting in no significant tax liability or expense in the current period or for the year ending December 31, 2004. Additionally, there was a deferred tax asset that was previously recognized for income tax purposes that was offset by a valuation allowance; as a result of the deferred revenue recognition, the associated deferred tax asset and related valuation allowance were reduced in the current period by approximately $3.5 million. 7. RECENT ACCOUNTING PRONOUNCEMENTS In March 2004, the Emerging Issues Task Force ("EITF") issued EITF Issue No. 03-6, "Participating Securities and the Two-Class Method under FASB Statement No. 128, Earnings Per Share," ("EITF 03-6") which addresses questions regarding the computation of earnings per share ("EPS") by companies that have issued securities other than common stock that contractually entitle the holder to participate in dividends and earnings of the company when, and if, it declares dividends on its common stock. The issue also provides further guidance in applying the two-class method of calculating EPS and clarifies what constitutes a participating security and how to apply the two-class method of computing EPS once it is determined that a security is participating, including how to allocate undistributed earnings to such a security. EITF 03-6 defines participation rights based solely on whether the holder would be entitled to receive any dividends if the entity declared them during the period and requires the use of the two-class method for computing basic EPS when participating convertible securities exist. In addition, EITF 03-6 expands the use of the two-class method to encompass other forms of participating securities, including options, warrants, forwards, and other contracts to issue an entity's common stock. The provisions of EITF 03-6 are effective for fiscal periods beginning after March 31, 2004. We do not expect the adoption of EITF 03-6 to have a material impact on the Acacia Research Corporation's, the CombiMatrix group's or the Acacia Technologies group's financial position, results of operations or cash flows. 8. COMMITMENTS AND CONTIGENCIES On September 30, 2002, CombiMatrix Corporation and Dr. Donald Montgomery entered into a settlement agreement with Nanogen, Inc. to settle all pending litigation between the parties. During the three months ended March 31, 2004, we recorded a non-cash charge totaling $1,257,000 in connection with certain anti-dilution provisions of that agreement. The non-cash charge reflects management's estimate of the fair value of AR-CombiMatrix stock that will be issued to Nanogen, Inc. as a result of certain options and warrants exercised during the quarter and the fair value of AR-CombiMatrix stock potentially issuable to Nanogen, Inc. as of the balance sheet date. The liability is adjusted at each balance date for changes in the market value of the AR-CombiMatrix stock and is reflected as long-term until settled in equity. The anti-dilution provisions of the settlement agreement expire in September 2005. In addition to other terms of the settlement agreement, CombiMatrix Corporation is also required to make quarterly payments to Nanogen, Inc. equal to 12.5% of payments to CombiMatrix Corporation from 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 in 2018. In connection with the purchase of the outstanding ownership interests in Acacia Media Technologies in November 2001, Acacia Media Technologies also executed related assignment agreements which granted to the former owners of Acacia Media Technologies' current patent portfolio the right to receive a royalty of 15% of future net revenues, as defined in the agreements, generated by Acacia Media Technologies' current patent portfolio, which includes its DMT patents. No royalty obligation has been incurred as of March 31, 2004. Any royalties paid pursuant to the agreements will be expensed in the consolidated statement of operations. LITIGATION Acacia Research Corporation is subject to other claims, counterclaims 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. 9 SOUNDVIEW TECHNOLOGIES In September 2002, the United States District Court for the District of Connecticut granted a motion for summary judgment filed by the defendants in Soundview Technologies pending 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 the United States District Court for the Eastern District of Virginia (filed on April 5, 2000), alleging that television sets utilizing certain content blocking technology (commonly known as the "V-chip") and sold in the United States infringe Soundview Technologies' U.S. Patent No. 4,554,584. In granting the motion, the court ruled that the defendants have not infringed on Soundview Technologies' patent. In September 2003, a motion for summary judgment filed by the remaining defendants was granted by the United States District Court for the District of Connecticut on Soundview Technologies' anti-trust claims due to the Court's previous ruling of non-infringement as described above. The decisions are currently being appealed to the U.S. Court of Appeals for the Federal Circuit. While we are currently appealing the two summary judgment rulings, litigation is inherently uncertain and we can give no assurance that we will be successful in any such appeals. The rulings have no impact on the revenues that we have recognized to date from licensees of our patented V-chip technology. Further, none of the revenues that we have recognized to date are contingent upon any court rulings or the future outcome of any litigation with unlicensed television manufacturers. ACACIA MEDIA TECHNOLOGIES CORPORATION In February 2003, Acacia Media Technologies initiated DMT patent infringement litigation in the Federal District Court for the Central District of California against approximately 39 defendants who provide adult oriented digital content over the Internet. All of the defendants were previously notified of our belief that their conduct infringes on our patent rights. As of March 31, 2004, nine of the original 39 defendants remain in the initial litigation. In December 2003, Acacia Media Technologies added an additional eight defendants to its pending patent infringement litigation described above. The new complaints, filed with the Court, seek to create a defendant class for all adult entertainment companies that infringe Acacia Media Technologies' DMT patents by transmitting pre-recorded, digital audio and audio/video adult content via any electronic communication channel into or from the Central District of California, or that operate at least one interactive website where a user located in Central District of California can exchange information with a host computer. Defendant class action status, which must be approved by the court, would permit the court's rulings on certain key issues to legally bind all members of the class, whether or not they have been specifically named as defendants in the litigation. In November 2003, Acacia Media Technologies initiated a patent infringement lawsuit in the Federal District Court for the Central District of California against On Command Corporation, provider of interactive in-room entertainment, information and business services to the lodging industry, regarding Acacia Media Technologies' DMT technology. 9. SUBSEQUENT EVENTS In April 2004, Acacia Research Corporation raised gross proceeds of $15,000,000 through the sale of 3,000,000 shares of Acacia Research - CombiMatrix common stock at a price of $5.00 per share in a registered direct offering. Net proceeds raised of approximately $13,600,000, which are net of related issuance costs, were attributed to the CombiMatrix group. 10 10. CONSOLIDATING SEGMENT INFORMATION Acacia Research Corporation has adopted the provisions of SFAS No. 131, "Disclosures about Segments of an Enterprise and Related Information." Our chief operating decision maker is considered to be Acacia Research Corporation's Chief Executive Officer ("CEO"). The CEO reviews and evaluates financial information presented on a group basis as described below. Management evaluates performance based on the profit or loss from continuing operations and financial position of its segments. Acacia Research Corporation has two reportable segments as described earlier in Note 1. 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. Presented below is consolidating financial information for our reportable segments reflecting the businesses of the CombiMatrix group and the Acacia Technologies group. Earnings attributable to each group has been determined in accordance with accounting principles generally accepted in the United States. 11 CONSOLIDATING BALANCE SHEETS (IN THOUSANDS)
AT MARCH 31, 2004 AT DECEMBER 31, 2003 ----------------------------------------- ---------------------------------------- ACACIA ACACIA TECHNO- COMBI- TECHNO- COMBI- LOGIES MATRIX ELIMI- CONSOLI- LOGIES MATRIX ELIMI- CONSOLI- GROUP GROUP NATIONS DATED GROUP GROUP NATIONS DATED --------- --------- --------- --------- --------- --------- --------- --------- ASSETS Current assets: Cash and cash equivalents ................. $ 29,500 $ 3,482 $ -- $ 32,982 $ 28,142 $ 3,807 $ -- $ 31,949 Short-term investments .................... 3,029 14,933 -- 17,962 5,059 13,492 -- 18,551 Accounts receivable ....................... 121 218 -- 339 124 199 -- 323 Prepaid expenses, inventory and other assets .................................. 1,063 459 -- 1,522 903 277 -- 1,180 Receivable from CombiMatrix group ......... 212 -- (212) -- 99 -- (99) -- --------- --------- --------- --------- --------- --------- --------- --------- Total current assets .............. 33,925 19,092 (212) 52,805 34,327 17,775 (99) 52,003 Property and equipment, net of accumulated depreciation ................................. 97 2,455 -- 2,552 71 2,752 -- 2,823 Patents, net of accumulated amortization ....... 3,441 9,843 -- 13,284 3,566 10,117 -- 13,683 Goodwill ....................................... 1,776 19,424 -- 21,200 1,776 19,424 -- 21,200 Other assets ................................... 238 94 -- 332 238 93 -- 331 --------- --------- --------- --------- --------- --------- --------- --------- $ 39,477 $ 50,908 $ (212) $ 90,173 $ 39,978 $ 50,161 $ (99) $ 90,040 ========= ========= ========= ========= ========= ========= ========= ========= LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable and accrued expenses...... $ 2,139 $ 1,658 $ -- $ 3,797 $ 1,572 $ 1,672 $ -- $ 3,244 Current portion of deferred revenues ...... 130 517 -- 647 104 18,004 -- 18,108 Payable to Acacia Technologies group ...... -- 212 (212) -- -- 99 (99) -- --------- --------- --------- --------- --------- --------- --------- --------- Total current liabilities ......... 2,269 2,387 (212) 4,444 1,676 19,775 (99) 21,352 Deferred income taxes .......................... 976 2,214 -- 3,190 1,012 2,248 -- 3,260 Deferred revenues, net of current portion ...... 1,500 2,420 -- 3,920 1,500 2,401 -- 3,901 Other liabilities .............................. -- 1,257 -- 1,257 -- -- -- -- --------- --------- --------- --------- --------- --------- --------- --------- Total liabilities ................. 4,745 8,278 (212) 12,811 4,188 24,424 (99) 28,513 --------- --------- --------- --------- --------- --------- --------- --------- Minority interests ............................. 1,127 -- -- 1,127 1,127 -- -- 1,127 --------- --------- --------- --------- --------- --------- --------- --------- Redeemable Stockholders' equity: AR - Acacia Technologies stock ............ 33,605 -- -- 33,605 34,663 -- -- 34,663 AR - CombiMatrix stock .................... -- 42,630 -- 42,630 -- 25,737 -- 25,737 --------- --------- --------- --------- --------- --------- --------- --------- Total stockholders' equity ........ 33,605 42,630 -- 76,235 34,663 25,737 -- 60,400 --------- --------- --------- --------- --------- --------- --------- --------- $ 39,477 $ 50,908 $ (212) $ 90,173 $ 39,978 $ 50,161 $ (99) $ 90,040 ========= ========= ========= ========= ========= ========= ========= ========= - --------------- NOTE: Segment information for the Acacia Technologies group includes discontinued operations related to Soundbreak.com. Total assets related to discontinued operations totaled $2,104,000 and $2,150,000 at March 31, 2004 and December 31, 2003, respectively. Total liabilities related to discontinued operations totaled $349,000 and $395,000 at March 31, 2004 and December 31, 2003, respectively. 12
CONSOLIDATING STATEMENTS OF OPERATIONS (IN THOUSANDS)
FOR THE THREE MONTHS ENDED FOR THE THREE MONTHS ENDED MARCH 31, 2004 MARCH 31, 2003 ----------------------------------------- ------------------------------------------ ACACIA ELIMI- ACACIA ELIMI- TECHNO- COMBI- NATIONS/ TECHNO- COMBI- NATIONS/ LOGIES MATRIX RECLASSI- CONSOLI- LOGIES MATRIX RECLASSI- CONSOLI- GROUP GROUP FICATIONS DATED GROUP GROUP FICATIONS DATED --------- --------- --------- --------- --------- --------- --------- --------- Revenues: Research and development, government and service contracts .................. $ -- $ 17,600 $ -- $ 17,600 $ -- $ 7 $ -- $ 7 License fees .............................. 599 -- -- 599 6 -- -- 6 Products .................................. -- 16 -- 16 -- 209 -- 209 --------- --------- --------- --------- --------- --------- --------- --------- Total revenues ............................ 599 17,616 -- 18,215 6 216 -- 222 --------- --------- --------- --------- --------- --------- --------- --------- Operating expenses: Cost of product sales ..................... -- 4 -- 4 -- 77 -- 77 Research and development expenses ......... -- 1,588 -- 1,588 -- 2,335 -- 2,335 Non-cash stock compensation amortization - research and development ............................. -- 69 -- 69 -- 2 -- 2 Marketing, general and administrative expenses ................. 1,006 2,278 602 3,886 1,323 2,670 262 4,255 Non-cash stock compensation amortization - marketing, general and administrative ...................... -- 334 -- 334 -- 138 -- 138 Legal expenses - patents .................. 602 -- (602) -- 262 -- (262) -- Amortization of patents ................... 125 274 -- 399 126 274 -- 400 Legal settlement charges .................. -- 1,257 -- 1,257 -- -- -- -- --------- --------- --------- --------- --------- --------- --------- --------- Total operating expenses ............ 1,733 5,804 -- 7,537 1,711 5,496 -- 7,207 --------- --------- --------- --------- --------- --------- --------- --------- Operating income (loss) ............. (1,134) 11,812 -- 10,678 (1,705) (5,280) -- (6,985) --------- --------- --------- --------- --------- --------- --------- --------- Other income: Interest income ........................... 112 46 -- 158 148 67 -- 215 Realized gains on short-term investments ............................. -- -- -- -- 37 -- -- 37 --------- --------- --------- --------- --------- --------- --------- --------- Total other income .................. 112 46 -- 158 185 67 -- 252 --------- --------- --------- --------- --------- --------- --------- --------- Income (loss) from continuing operations before income taxes and minority interests ......................... (1,022) 11,858 -- 10,836 (1,520) (5,213) -- (6,733) Benefit for income taxes ..................... 33 34 -- 67 26 34 -- 60 --------- --------- --------- --------- --------- --------- --------- --------- Income (loss) from continuing operations before minority interests ....... (989) 11,892 -- 10,903 (1,494) (5,179) -- (6,673) Minority interests ........................... -- -- -- -- -- 6 -- 6 --------- --------- --------- --------- --------- --------- --------- --------- Net income (loss) ............................ $ (989) $ 11,892 $ -- $ 10,903 $ (1,494) $ (5,173) $ -- $ (6,667) ========= ========= ========= ========= ========= ========= ========= ========= 13
CONSOLIDATING STATEMENTS OF CASH FLOWS (IN THOUSANDS)
FOR THE THREE MONTHS ENDED FOR THE THREE MONTHS ENDED MARCH 31, 2004 MARCH 31, 2003 ------------------------------------------ ---------------------------------------- ACACIA ACACIA TECHNO- COMBI- TECHNO- COMBI- LOGIES MATRIX ELIMI- CONSOLI- LOGIES MATRIX ELIMI- CONSOLI- GROUP GROUP NATIONS DATED GROUP GROUP NATIONS DATED --------- --------- --------- --------- --------- --------- -------- --------- Cash flows from operating activities: Net income (loss) from operations .......... $ (989) $ 11,892 $ -- $ 10,903 $ (1,494) $ (5,173) $ -- $ (6,667) Adjustments to reconcile net income (loss) from operations to net cash used in operating activities: Depreciation and amortization ............ 136 576 -- 712 161 606 -- 767 Minority interests ....................... -- -- -- -- -- (6) -- (6) Non-cash stock compensation amortization ........................... -- 403 -- 403 -- 140 -- 140 Deferred tax benefit ..................... (36) (34) -- (70) (36) (34) -- (70) Non-cash legal settlement charge ......... -- 1,257 -- 1,257 -- -- -- -- Other .................................... -- (27) -- (27) (3) 124 -- 121 Changes in assets and liabilities: Accounts receivable ...................... 3 (19) -- (16) (11) 312 -- 301 Prepaid expenses, other receivables and other assets ....................... (234) (101) 114 (221) (218) (179) -- (397) Accounts payable, accrued expenses and other liabilities .................. 615 170 (114) 671 (420) 170 -- (250) Deferred revenues ........................ 26 (17,468) -- (17,442) 33 1,475 -- 1,508 --------- --------- --------- --------- --------- --------- -------- --------- Net cash used in operating activities from continuing operations ............................. (479) (3,351) -- (3,830) (1,988) (2,565) -- (4,553) Net cash used in operating activities from discontinued operations ............................. (87) -- -- (87) (86) -- -- (86) --------- --------- --------- --------- --------- --------- -------- --------- Net cash used in operating activities ............................. (566) (3,351) -- (3,917) (2,074) (2,565) -- (4,639) --------- --------- --------- --------- --------- --------- -------- --------- Cash flows from investing activities: Purchase of property and equipment, net .................................... (36) (61) -- (97) (2) (22) -- (24) Purchase of available-for-sale investments ............................ -- (13,605) -- (13,605) -- (469) -- (469) Sale of available-for-sale investments ............................ 2,030 12,166 -- 14,196 -- 2,462 -- 2,462 --------- --------- --------- --------- --------- --------- -------- --------- Net cash provided by (used in) investing activities from continuing operations .................. 1,994 (1,500) -- 494 (2) 1,971 -- 1,969 Net cash used in investing activities from discontinued operations ............................. -- -- -- -- (344) -- -- (344) --------- --------- --------- --------- --------- --------- -------- --------- Net cash provided by (used in) investing activities ................... 1,994 (1,500) -- 494 (346) 1,971 -- 1,625 --------- --------- --------- --------- --------- --------- -------- --------- Cash flows from financing activities: Net cash attributed to the Acacia Technologies group ..................... (70) -- -- (70) (275) -- -- (275) Net cash attributed to the CombiMatrix group ...................... -- 4,520 -- 4,520 -- 275 -- 275 --------- --------- --------- --------- --------- --------- -------- --------- Net cash provided by (used in) financing activities ................... (70) 4,520 -- 4,450 (275) 275 -- -- --------- --------- --------- --------- --------- --------- -------- --------- Effect of exchange rate on cash .......... -- 6 -- 6 -- (7) -- (7) --------- --------- --------- --------- --------- --------- -------- --------- Increase (decrease) in cash and cash equivalents ....................... 1,358 (325) -- 1,033 (2,695) (326) -- (3,021) Cash and cash equivalents, beginning ..... 28,142 3,807 -- 31,949 39,792 3,291 -- 43,083 --------- --------- --------- --------- --------- --------- -------- --------- Cash and cash equivalents, ending ........ $ 29,500 $ 3,482 $ -- $ 32,982 $ 37,097 $ 2,965 $ -- $ 40,062 ========= ========= ========= ========= ========= ========= ======== ========= 14
COMBIMATRIX GROUP (A DIVISION OF ACACIA RESEARCH CORPORATION) BALANCE SHEETS (IN THOUSANDS) (UNAUDITED)
MARCH 31, DECEMBER 31, 2004 2003 -------------- -------------- ASSETS Current assets: Cash and cash equivalents .................................................. $ 3,482 $ 3,807 Available-for-sale investments ............................................. 14,933 13,492 Accounts receivable, net of allowance for doubtful accounts of $0 (2004) and $145 (2003) ............................................. 218 199 Inventory, prepaid expenses and other assets ............................... 459 277 -------------- -------------- Total current assets ................................................. 19,092 17,775 Property and equipment, net of accumulated depreciation and amortization ...... 2,455 2,752 Patents, net of accumulated amortization of $2,252 (2004) and $1,978 (2003).... 9,843 10,117 Goodwill ...................................................................... 19,424 19,424 Other assets .................................................................. 94 93 -------------- -------------- $ 50,908 $ 50,161 ============== ============== LIABILITIES AND ALLOCATED NET WORTH Current liabilities: Accounts payable and accrued expenses ...................................... $ 1,658 $ 1,672 Current portion of deferred revenues ....................................... 517 18,004 Payable to Acacia Technologies group ....................................... 212 99 -------------- -------------- Total current liabilities ............................................ 2,387 19,775 Deferred income taxes ......................................................... 2,214 2,248 Deferred revenues, net of current portion ..................................... 2,420 2,401 Other liabilities ............................................................. 1,257 -- -------------- -------------- Total liabilities .................................................... 8,278 24,424 -------------- -------------- Commitments and contingencies (Note 7) Allocated net worth: Funds allocated by Acacia Research Corporation ............................. 143,676 138,675 Accumulated net losses ..................................................... (101,046) (112,938) -------------- -------------- Total allocated net worth ............................................ 42,630 25,737 -------------- -------------- $ 50,908 $ 50,161 ============== ============== THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS. 15
COMBIMATRIX GROUP (A DIVISION OF ACACIA RESEARCH CORPORATION) STATEMENTS OF OPERATION (IN THOUSANDS) (UNAUDITED)
FOR THE THREE MONTHS ENDED ------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Revenues: Research and development contract ..................................... $ 17,302 $ -- Government contract ................................................... 217 -- Service contracts ..................................................... 81 7 Products .............................................................. 16 209 ------------- ------------- Total revenues ..................................................... 17,616 216 ------------- ------------- Operating expenses: Cost of product sales ................................................. 4 77 Research and development expenses ..................................... 1,588 2,335 Non-cash stock compensation amortization - research and development ... 69 2 Marketing, general and administrative expenses ........................ 2,278 2,670 Non-cash stock compensation amortization - marketing, general and administrative .................................................. 334 138 Amortization of patents ............................................... 274 274 Legal settlement charges .............................................. 1,257 -- ------------- ------------- Total operating expenses ........................................... 5,804 5,496 ------------- ------------- Operating income (loss) ............................................ 11,812 (5,280) ------------- ------------- Other income: Interest income ....................................................... 46 67 ------------- ------------- Total other income ................................................. 46 67 ------------- ------------- Income (loss) from operations before income taxes and minority interests ................................................. 11,858 (5,213) Benefit for income taxes ................................................. 34 34 ------------- ------------- Income (loss) from operations before minority interests .................. 11,892 (5,179) Minority interests ....................................................... -- 6 ------------- ------------- Division net income (loss) ............................................... $ 11,892 $ (5,173) ============= ============= THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS. 16
COMBIMATRIX GROUP (A DIVISION OF ACACIA RESEARCH CORPORATION) STATEMENTS OF CASH FLOWS (IN THOUSANDS) (UNAUDITED)
FOR THE THREE MONTHS ENDED -------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Cash flows from operating activities: Division net income (loss) from operations ............................ $ 11,892 $ (5,173) Adjustments to reconcile division net income (loss) from operations to net cash used in operating activities: Depreciation and amortization .................................... 576 606 Minority interests ............................................... -- (6) Non-cash stock compensation amortization ......................... 403 140 Deferred tax benefit ............................................. (34) (34) Non-cash legal settlement charge ................................. 1,257 -- Other ............................................................ (27) 124 Changes in assets and liabilities: Accounts receivable .............................................. (19) 312 Inventory, prepaid expenses and other assets ..................... (101) (179) Accounts payable, accrued expenses and other ..................... 170 170 Deferred revenues ................................................ (17,468) 1,475 ------------- ------------- Net cash used in operating activities ............................ (3,351) (2,565) ------------- ------------- Cash flows from investing activities: Purchase of property and equipment, net .......................... (61) (22) Purchase of available-for-sale investments ....................... (13,605) (469) Sale of available-for-sale investments ........................... 12,166 2,462 ------------- ------------- Net cash provided by (used in) investing activities .............. (1,500) 1,971 ------------- ------------- Cash flows from financing activities: Net cash flows attributed to the CombiMatrix group ............... 4,520 275 ------------- ------------- Effect of exchange rate on cash ......................................... 6 (7) ------------- ------------- Increase (decrease) in cash and cash equivalents ........................ (325) (326) Cash and cash equivalents, beginning .................................... 3,807 3,291 ------------- ------------- Cash and cash equivalents, ending ....................................... $ 3,482 $ 2,965 ============= ============= THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS. 17
COMBIMATRIX GROUP (A DIVISION OF ACACIA RESEARCH CORPORATION) NOTES TO FINANCIAL STATEMENTS (UNAUDITED) 1. DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION DESCRIPTION OF BUSINESS. Acacia Research Corporation is comprised of two separate divisions: the CombiMatrix group and the Acacia Technologies group. Our life sciences business, referred to as the "CombiMatrix group," is primarily comprised of our wholly owned subsidiary, CombiMatrix Corporation and CombiMatrix Corporation's wholly owned subsidiary, CombiMatrix K.K. CombiMatrix Corporation is a life sciences technology company with a proprietary system for rapid, cost competitive creation of DNA and other compounds on a programmable semiconductor chip, also referred to as an array. This proprietary technology has applications in the areas of genomics, proteomics, biosensors, drug discovery, drug development, diagnostics, combinatorial chemistry, material sciences and nanotechnology. CombiMatrix K.K., a Japanese corporation located in Tokyo, is exploring opportunities for CombiMatrix Corporation's active array system with pharmaceutical and biotechnology companies in the Asian market. RECAPITALIZATION TRANSACTION On December 11, 2002, Acacia Research Corporation's stockholders voted in favor of a recapitalization transaction, which became effective on December 13, 2002, whereby Acacia Research Corporation created two new classes of common stock called Acacia Research-CombiMatrix stock ("AR-CombiMatrix stock") and Acacia Research-Acacia Technologies stock ("AR-Acacia Technologies stock"), and divided Acacia Research Corporation's existing Acacia Research Corporation common stock into shares of the two new classes of common stock. BASIS OF PRESENTATION. The unaudited interim CombiMatrix group financial statements as of March 31, 2004, and for the interim periods presented, 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 consolidated financial statements and notes thereto for the year ended December 31, 2003. The year-end balance sheet data was derived from audited financial statements but does not include all disclosures required by accounting principles generally accepted in the United States of America. 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 March 31, 2004, and the results of its operations and its cash flows for the interim periods presented. The results of operations for the three months ended March 31, 2004 are not necessarily indicative of the results to be expected for the entire year. AR-CombiMatrix stock is intended to reflect the separate performance of the CombiMatrix group, a division of Acacia Research Corporation. The CombiMatrix group is not a separate legal entity. Holders of AR-CombiMatrix stock are stockholders of Acacia Research Corporation. As a result, holders of AR-CombiMatrix stock are subject to all of the risks of an investment in Acacia Research Corporation and all of its businesses, assets and liabilities. The assets that Acacia Research Corporation attributes to the CombiMatrix group could be subject to the liabilities of the Acacia Technologies group. The CombiMatrix group financial statements 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 the 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 were prepared using amounts included in Acacia Research Corporation's consolidated financial statements. 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, 18 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. 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES REVENUE RECOGNITION. The CombiMatrix group recognizes revenue in accordance with Staff Accounting Bulletin No. 104, "Revenue Recognition" ("SAB No. 104") and related authoritative pronouncements. Revenue is recognized when (i) persuasive evidence of an arrangement exists, (ii) delivery has occurred or services have been rendered, (iii) the fees are fixed or determinable, and (iv) collectibility is reasonably assured. Revenues from multiple-element arrangements are accounted for in accordance with Emerging Issues Task Force ("EITF") Issue 00-21, "Revenue Arrangements with Multiple Deliverables." Multiple-element arrangements typically include license fees, up-front payments and milestone payments that are received and/or billable by the CombiMatrix group in connection with other rights and services that represent continuing obligations of the CombiMatrix group. Payments received or billable by the CombiMatrix group 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. Revenues from government grants and contracts are recognized in accordance with Accounting Research Bulletin ("ARB") No. 43, "Government Contracts," and related pronouncements. Accordingly, revenues are recognized under the percentage-of-completion method of accounting, using the cost-to-cost approach to measure completeness at each reporting period. Under the percentage-of-completion method of accounting, contract revenues and expenses are recognized in the period that work is performed based on the percentage of actual incurred costs to estimated total contract costs. Actual contract costs and cost estimates include direct charges for labor and materials and indirect charges for labor, overhead and certain general and administrative charges. Contract change orders and claims are included when they can be reliably estimated and are considered probable. For contracts that extend over a one-year period, revisions in contract cost estimates, if they occur, have the effect of adjusting current period earnings applicable to performance in prior periods. Should current contract estimates indicate an overall future loss to be incurred, a provision is made for the total anticipated loss in the current period. Revenue from the sale of products and services is recognized when delivery has occurred or services have been rendered. 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 current. Deferred revenues will be recognized as revenue in future periods when the applicable revenue recognition criteria as described above are met. INVENTORY. Inventory, which consists primarily of raw materials to be used in the production of the CombiMatrix group's array products, is stated at the lower of cost or market using the first-in, first-out method. STOCK-BASED COMPENSATION. Refer to Note 2 to the Acacia Research Corporation consolidated financial statements included elsewhere herein. EARNINGS PER SHARE INFORMATION AND STOCK OPTION AND RELATED OPTION PLAN INFORMATION. Earnings per share and stock option and related option plan information is omitted from the CombiMatrix group footnotes because AR-CombiMatrix stock is part of the capital structure of Acacia Research Corporation. The CombiMatrix group is not a separate legal entity. Holders of AR-CombiMatrix stock are stockholders of Acacia Research Corporation. This presentation reflects the fact that the CombiMatrix group does not have legally issued common or preferred stock and AR-CombiMatrix stock transactions are not legal transactions of the CombiMatrix group. Refer to the Acacia Research Corporation consolidated financial statements for earnings per share information for Acacia Research Corporation's classes of stock, computed using the two-class method in accordance with SFAS No. 128, "Earnings per Share." Refer to the Acacia Research Corporation consolidated financial statements for disclosures regarding Acacia Research Corporation's stock option plans. IMPAIRMENT OF LONG-LIVED ASSETS AND GOODWILL. Refer to Note 2 to the Acacia Research Corporation consolidated financial statements included elsewhere herein. 19 3. RECENT ACCOUNTING PRONOUNCEMENTS Refer to Note 7 to the Acacia Research Corporation consolidated financial statements included elsewhere herein. 4. GOODWILL AND INTANGIBLES The CombiMatrix group's only identifiable intangible assets are patents, which have remaining economic useful lives up to 2020. Annual aggregate amortization expense for each of the next five years through December 31, 2008 is estimated to be $1,095,000 per year. At March 31, 2004 and December 31, 2003, all of the CombiMatrix group's acquired intangible assets other than goodwill were subject to amortization. 5. REVENUES In March 2004, the CombiMatrix group completed all phases of its research and development agreement with Roche Diagnostics, GmbH ("Roche"). As a result of completing all of its obligations under this agreement and in accordance with the CombiMatrix group's revenue recognition policies for multiple-element arrangements, the CombiMatrix group recognized all previously deferred Roche related contract revenues totaling $17,302,000 during the first quarter of 2004. 6. INCOME TAXES The CombiMatrix group estimates that there will be sufficient losses from operations in the current fiscal year to offset any taxable income related to the Roche deferred contract revenues totaling $17,302,000 recognized during the three months ended March 31, 2004, resulting in no significant tax liability or expense in the current period or for the year ending December 31, 2004. Additionally, there was a deferred tax asset that was previously recognized for income tax purposes that was offset by a valuation allowance; as a result of the deferred revenue recognition, the associated deferred tax asset and related valuation allowance were reduced in the current period by approximately $3.5 million. 7. COMMITMENTS AND CONTINGENCIES On September 30, 2002, CombiMatrix Corporation and Dr. Donald Montgomery entered into a settlement agreement with Nanogen, Inc. to settle all pending litigation between the parties. During the three months ended March 31, 2004, we recorded a non-cash charge totaling $1,257,000 in connection with certain anti-dilution provisions of that agreement. The non-cash charge reflects management's estimate of the fair value of AR-CombiMatrix stock that will be issued to Nanogen, Inc. as a result of certain options and warrants exercised during the quarter and the fair value of AR-CombiMatrix stock potentially issuable to Nanogen, Inc. as of the balance sheet date. The liability is adjusted at each balance date for changes in the market value of the AR-CombiMatrix stock and is reflected as long-term until settled in equity. The anti-dilution provisions of the settlement agreement expire in September 2005. In addition to other terms of the settlement agreement, CombiMatrix Corporation is also required to make quarterly payments to Nanogen, Inc. equal to 12.5% of payments to CombiMatrix Corporation from 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 in 2018. 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. 20 8. SUBSEQUENT EVENTS In April 2004, Acacia Research Corporation raised gross proceeds of $15,000,000 through the sale of 3,000,000 shares of Acacia Research - CombiMatrix common stock at a price of $5.00 per share in a registered direct offering. Net proceeds raised of approximately $13,600,000, which are net of related issuance costs, were attributed to the CombiMatrix group. 21 ACACIA TECHNOLOGIES GROUP (A DIVISION OF ACACIA RESEARCH CORPORATION) BALANCE SHEETS (IN THOUSANDS) (UNAUDITED)
MARCH 31, DECEMBER 31, 2004 2003 ----------------- ----------------- ASSETS Current assets: Cash and cash equivalents .................................................. $ 29,500 $ 28,142 Short-term investments ..................................................... 3,029 5,059 Accounts receivable ........................................................ 121 124 Prepaid expenses and other assets .......................................... 1,063 903 Receivable from CombiMatrix group .......................................... 212 99 ----------------- ----------------- Total current assets ................................................. 33,925 34,327 Property and equipment, net of accumulated depreciation ....................... 97 71 Patents, net of accumulated amortization of $7,358 (2003) and $7,232 (2003) ... 3,441 3,566 Goodwill ...................................................................... 1,776 1,776 Other assets .................................................................. 238 238 ----------------- ----------------- $ 39,477 $ 39,978 ================= ================= LIABILITIES AND ALLOCATED NET WORTH Current liabilities: Accounts payable and accrued expenses ...................................... $ 2,139 $ 1,572 Deferred revenues .......................................................... 130 104 ----------------- ----------------- Total current liabilities ............................................ 2,269 1,676 Deferred income taxes ......................................................... 976 1,012 Deferred revenues, net of current portion ..................................... 1,500 1,500 ----------------- ----------------- Total liabilities .................................................... 4,745 4,188 ----------------- ----------------- Minority interests ............................................................ 1,127 1,127 ----------------- ----------------- Commitments and contingencies (Note 5) Allocated net worth: Funds allocated by Acacia Research Corporation ............................. 105,060 105,129 Accumulated net losses ..................................................... (71,455) (70,466) ----------------- ----------------- Total allocated net worth ............................................ 33,605 34,663 ----------------- ----------------- $ 39,477 $ 39,978 ================= ================= THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS. 22
ACACIA TECHNOLOGIES GROUP (A DIVISION OF ACACIA RESEARCH CORPORATION) STATEMENTS OF OPERATIONS (IN THOUSANDS) (UNAUDITED)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Revenues: License fees ....................................... $ 599 $ 6 -------------- -------------- Total revenues .................................. 599 6 -------------- -------------- Operating expenses: Marketing, general and administrative expenses ..... 1,006 1,323 Legal expenses - patents ........................... 602 262 Amortization of patents ............................ 125 126 -------------- -------------- Total operating expenses ........................ 1,733 1,711 -------------- -------------- Operating loss .................................. (1,134) (1,705) -------------- -------------- Other income: Interest income .................................... 112 148 Realized gains on short-term investments ........... -- 37 -------------- -------------- Total other income .............................. 112 185 -------------- -------------- Loss from continuing operations before income taxes ... (1,022) (1,520) Benefit for income taxes .............................. 33 26 -------------- -------------- Division net loss ..................................... (989) (1,494) ============== ============== THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS. 23
ACACIA TECHNOLOGIES GROUP (A DIVISION OF ACACIA RESEARCH CORPORATION) STATEMENTS OF CASH FLOWS (IN THOUSANDS) (UNAUDITED)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Cash flows from operating activities: Division net loss from operations ................................................... $ (989) $ (1,494) Adjustments to reconcile division net loss from operations to net cash used in operating activities: Depreciation and amortization .................................................... 136 161 Deferred tax benefit ............................................................. (36) (36) Other ............................................................................ -- (3) Changes in assets and liabilities: Accounts receivable .............................................................. 3 (11) Prepaid expenses, other receivables and other assets ............................. (234) (218) Accounts payable, accrued expenses ............................................... 615 (420) Deferred revenues ................................................................ 26 33 -------------- -------------- Net cash used in operating activities from continuing operations ................. (479) (1,988) Net cash used in operating activities from discontinued operations ............... (87) (86) -------------- -------------- Net cash used in operating activities ............................................ (566) (2,074) -------------- -------------- Cash flows from investing activities: Purchase of property and equipment, net .......................................... (36) (2) Sale of available-for-sale investments ........................................... 2,030 -- -------------- -------------- Net cash provided by (used in) investing activities from continuing operations ... 1,994 (2) Net cash used in investing activities from discontinued operations ............... -- (344) -------------- -------------- Net cash provided by (used in) investing activities .............................. 1,994 (346) -------------- -------------- Cash flows from financing activities: Net cash flows attributed to the Acacia Technologies group ....................... (70) (275) -------------- -------------- Increase (decrease) in cash and cash equivalents ...................................... 1,358 (2,695) Cash and cash equivalents, beginning .................................................. 28,142 39,792 -------------- -------------- Cash and cash equivalents, ending ..................................................... $ 29,500 $ 37,097 ============== ============== THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS. 24
ACACIA TECHNOLOGIES GROUP (A DIVISION OF ACACIA RESEARCH CORPORATION) NOTES TO FINANCIAL STATEMENTS (UNAUDITED) 1. DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION DESCRIPTION OF BUSINESS. Acacia Research Corporation's continuing operations are comprised of two separate divisions: the Acacia Technologies group and the CombiMatrix group. The Acacia Technologies group, a division of Acacia Research Corporation, is primarily comprised of Acacia Research Corporation's interests in two wholly owned subsidiaries: (1) Acacia Media Technologies Corporation, ("Acacia Media Technologies") a Delaware corporation and (2) Soundview Technologies, Inc., ("Soundview Technologies") a Delaware corporation, and also includes all corporate assets, liabilities, and related transactions of Acacia Research Corporation attributed to the Acacia Research Corporation's intellectual property licensing business. The Acacia Technologies group is responsible for the development, acquisition, licensing and protection of intellectual property and proprietary technologies and is pursuing additional licensing and strategic business alliances with leading companies in the rapidly growing intellectual property licensing industry. RECAPITALIZATION TRANSACTION On December 11, 2002, Acacia Research Corporation's stockholders voted in favor of a recapitalization transaction, which became effective on December 13, 2002, whereby Acacia Research Corporation created two new classes of common stock called Acacia Research-CombiMatrix stock ("AR-CombiMatrix stock") and Acacia Research-Acacia Technologies stock ("AR-Acacia Technologies stock"), and divided Acacia Research Corporation's existing Acacia Research Corporation common stock into shares of the two new classes of common stock. BASIS OF PRESENTATION. The unaudited interim Acacia Technologies group financial statements as of March 31, 2004, and for the interim periods presented, 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 consolidated financial statements and notes thereto for the year ended December 31, 2003. The year-end balance sheet data was derived from audited financial statements but does not include all disclosures required by accounting principles generally accepted in the United States of America. 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 March 31, 2004, and the results of its operations and its cash flows for the interim periods presented. The results of operations for the three months ended March 31, 2004 are not necessarily indicative of the results to be expected for the entire year. AR-Acacia Technologies stock is intended to reflect the separate performance of the Acacia Technologies group, a division of Acacia Research Corporation. The Acacia Technologies group is not a separate legal entity. Holders of AR-Acacia Technologies stock are stockholders of Acacia Research Corporation. As a result, holders of AR-Acacia Technologies stock are 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 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. 25 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. 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES REVENUE RECOGNITION. The Acacia Technologies group recognizes revenue in accordance with Staff Accounting Bulletin No. 104, "Revenue Recognition" ("SAB No. 104") and related authoritative pronouncements. 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. Under the terms of the Acacia Technologies group's digital media transmission ("DMT") license agreements, the Acacia Technologies group grants an annual non-exclusive license for the use of its patented DMT technology. In most instances, our license agreements provide for recurring royalty payments for each year that the license agreements are in effect through the expiration of the patents. Pursuant to the terms of the DMT license agreements, once executed, the Acacia Technologies group has no further obligations with respect to the grant of the annual license each year. License fees paid to and recognized as revenue by the Acacia Technologies group are non-refundable. PER UNIT ROYALTIES: Revenue generated from license agreements that provide for the calculation of royalties on a per-unit basis are accrued and recognized as revenue in the period earned, provided that amounts are fixed or determinable and collectibility is reasonably assured. PERCENTAGE OF LICENSEE SALES ROYALTIES: Certain license agreements provide for the calculation of license fees based on a licensee's actual quarterly sales applied to a contractual royalty rate. Licensees that pay license fees on a quarterly basis generally report actual quarterly sales information and related quarterly license fees due to the Acacia Technologies group within 30 to 45 days after the end of the quarter in which such activity takes place. Consequently, the Acacia Technologies group recognizes revenue from these licensing agreements on a three-month lag basis, in the quarter following the quarter of sales, provided amounts are fixed or determinable and collectibility is reasonably assured. The lag method described above allows for the receipt of licensee royalty reports prior to the recognition of revenue. MINIMUM UPFRONT ANNUAL ROYALTIES: Certain license agreements provide for the calculation and payment of a minimum upfront annual license fee, based upon a licensee's expected annual sales during each annual license term. These license fee payments are deferred and amortized to revenue on a straight-line basis over the annual license term. To the extent actual annual royalties reported at the conclusion of each annual license term exceed the amount prepaid, the additional royalties are recognized in revenue in the quarter following the annual license term provided that amounts are fixed or determinable and collectibility is reasonably assured. License fee payments received by the Acacia Technologies group that do not meet the revenue recognition criteria described above are deferred until the revenue recognition criteria are met. The Acacia Technologies group assesses collection of accrued license fees based on a number of factors, including past transaction history and credit-worthiness. If it is determined that collection is not reasonably assured, the fee is recognized when collectibility becomes reasonably assured, assuming all other revenue recognition criteria have been met, which is generally upon receipt of cash. As a result of the Acacia Technologies group's licensing and any related intellectual property enforcement activities that the Acacia Technologies group may conduct, the Acacia Technologies group may recognize royalty revenues that relate to prior period infringements by licensees. Differences between amounts initially recognized and amounts subsequently audited or reported as an adjustment to those amounts will be recognized in the period the adjustment is determined as a change in accounting estimate. 26 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 current. At December 31, 2003 and 2002, the Acacia Technologies group balance sheets include deferred revenues related to payments received in advance of the culmination of the earnings process, which will be recognized as revenue in future periods when the applicable revenue recognition criteria, as described above, are met. STOCK-BASED COMPENSATION. Refer to Note 2 to the Acacia Research Corporation consolidated financial statements included elsewhere herein. EARNINGS PER SHARE INFORMATION AND STOCK OPTION AND RELATED OPTION PLAN INFORMATION. Earnings per share and stock option and related option plan information is omitted from the Acacia Technologies group footnotes because AR-Acacia Technologies stock is part of the capital structure of Acacia Research Corporation. The Acacia Technologies group is not a separate legal entity. Holders of AR-Acacia Technologies stock are stockholders of Acacia Research Corporation. This presentation reflects the fact that the Acacia Technologies group does not have legally issued common or preferred stock and AR-Acacia Technologies stock transactions are not legal transactions of the Acacia Technologies group. Refer to the Acacia Research Corporation consolidated financial statements for earnings per share information for Acacia Research Corporation's classes of stock, computed using the two-class method in accordance with SFAS No. 128, "Earnings per Share." Refer to the Acacia Research Corporation consolidated financial statements for disclosures regarding Acacia Research Corporation's stock option plans. IMPAIRMENT OF LONG-LIVED ASSETS AND GOODWILL. Refer to Note 2 to the Acacia Research Corporation consolidated financial statements included elsewhere herein. 3. RECENT ACCOUNTING PRONOUNCEMENTS Refer to Note 7 to the Acacia Research Corporation consolidated financial statements included elsewhere herein. 4. GOODWILL AND INTANGIBLES The Acacia Technologies group's only identifiable intangible assets are patents. Annual aggregate amortization expense for each of the next five years through December 31, 2008 is estimated to be $500,000 per year. At March 31, 2004 and December 31, 2003, all of the Acacia Technologies group's acquired intangible assets other than goodwill were subject to amortization. 5. COMMITMENTS AND CONTIGENCIES In connection with the purchase of the outstanding ownership interests in Acacia Media Technologies in November 2001, Acacia Media Technologies also executed related assignment agreements which granted to the former owners of Acacia Media Technologies' current patent portfolio the right to receive a royalty of 15% of future net revenues, as defined in the agreements, generated by Acacia Media Technologies' current patent portfolio, which includes its DMT patents. No royalty obligation has been incurred as of March 31, 2004. Any royalties paid pursuant to the agreements will be expensed in the statement of operations. LITIGATION Acacia Technologies group is subject to other claims, counterclaims 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. SOUNDVIEW TECHNOLOGIES In September 2002, the United States District Court for the District of Connecticut granted a motion for summary judgment filed by the defendants in Soundview Technologies pending patent infringement and antitrust lawsuit against 27 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 the United States District Court for the Eastern District of Virginia (filed on April 5, 2000), alleging that television sets utilizing certain content blocking technology (commonly known as the "V-chip") and sold in the United States infringe Soundview Technologies' U.S. Patent No. 4,554,584. In granting the motion, the court ruled that the defendants have not infringed on Soundview Technologies' patent. In September 2003, a motion for summary judgment filed by the remaining defendants was granted by the United States District Court for the District of Connecticut on Soundview Technologies' anti-trust claims due to the Court's previous ruling of non-infringement as described above. The decisions are currently being appealed to the U.S. Court of Appeals for the Federal Circuit. While the Acacia Technologies group is currently appealing the two summary judgment rulings, litigation is inherently uncertain and the Acacia Technologies group can give no assurance that it will be successful in any such appeals. The rulings have no impact on the revenues that the Acacia Technologies group has recognized to date from licensees of its patented V-chip technology. Further, none of the revenues recognized are contingent upon any court rulings or the future outcome of any litigation with unlicensed television manufacturers. ACACIA MEDIA TECHNOLOGIES In February 2003, Acacia Media Technologies initiated DMT patent infringement litigation in the Federal District Court for the Central District of California against approximately 39 defendants who provide adult oriented digital content over the Internet. All of the defendants were previously notified of our belief that their conduct infringes on our patent rights. As of March 31, 2004, nine of the original 39 defendants remain in the initial litigation. In December 2003, Acacia Media Technologies added an additional eight defendants to its pending patent infringement litigation described above. The new complaints, filed with the Court, seek to create a defendant class for all adult entertainment companies that infringe Acacia Media Technologies' DMT patents by transmitting pre-recorded, digital audio and audio/video adult content via any electronic communication channel into or from the Central District of California, or that operate at least one interactive website where a user located in Central District of California can exchange information with a host computer. Defendant class action status, which must be approved by the court, would permit the court's rulings on certain key issues to legally bind all members of the class, whether or not they have been specifically named as defendants in the litigation. In November 2003, Acacia Media Technologies initiated a patent infringement lawsuit in the Federal District Court for the Central District of California against On Command Corporation, provider of interactive in-room entertainment, information and business services to the lodging industry, regarding Acacia Media Technologies' DMT technology. 28 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS CAUTIONARY STATEMENT You should read the following discussion and analysis in conjunction with the consolidated financial statements and related notes thereto contained elsewhere in this report. The information contained in this Quarterly Report on Form 10-Q is not a complete description of our businesses or the risks associated with an investment in our common stock. We urge you to carefully review and consider the various disclosures made by us in this report and in our other reports filed with the Securities and Exchange Commission, including our Annual Report on Form 10-K for the year ended December 31, 2003 and our Registration Statement on Form S-4 filed with the Securities and Exchange Commission on May 7, 2002, as amended, that discuss our businesses in greater detail. This report contains forward-looking statements within the meaning of the "safe harbor" provisions of the Private Securities Litigation Reform Act of 1995. Reference is made in particular to the description of our plans and objectives for future operations, assumptions underlying such plans and objectives, and other forward-looking statements included in this report. Such statements may be identified by the use of forward-looking terminology such as "may," "will," "expect," "believe," "estimate," "anticipate," "intend," "continue," or similar terms, variations of such terms or the negative of such terms. Such statements are based on management's current expectations and are subject to a number of factors and uncertainties, which could cause actual results to differ materially from those described in the forward-looking statements. Such statements address future events and conditions concerning product development, capital expenditures, earnings, litigation, regulatory matters, markets for products and services, liquidity and capital resources and accounting matters. Actual results in each case could differ materially from those anticipated in such statements by reason of factors such as future economic conditions, changes in consumer demand, legislative, regulatory and competitive developments in markets in which we and our subsidiaries operate, and other circumstances affecting anticipated revenues and costs. We expressly disclaim any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in our expectations with regard thereto or any change in events, conditions or circumstances on which any such statement is based. Additional factors that could cause such results to differ materially from those described in the forward-looking statements are set forth in connection with the forward-looking statements. OVERVIEW As used in this Form 10-Q, "we," "us" and "our" refer to Acacia Research Corporation and its subsidiary companies. Acacia Research Corporation, a Delaware corporation, was originally incorporated in California in January 1993 and reincorporated in Delaware in December 1999. The following discussion is based primarily on our unaudited consolidated balance sheet as of March 31, 2004 and on our unaudited consolidated statement of operations for the period from January 1, 2004 to March 31, 2004. The discussion compares the activities for the three months ended March 31, 2004 to the activities for the three months ended March 31, 2003. This information should be read in conjunction with the accompanying unaudited consolidated financial statements and notes thereto. Acacia Research Corporation is comprised of two operating groups, the CombiMatrix group and the Acacia Technologies group. The CombiMatrix group's core technology opportunity in the life sciences sector has been developed through our wholly owned subsidiary, CombiMatrix Corporation, which is developing a platform technology to rapidly produce customizable arrays, which are semiconductor-based tools for use in identifying and determining the roles of genes, gene mutations and proteins. The CombiMatrix group's technology has a wide range of potential applications in the areas of genomics, proteomics, biosensors, drug discovery, drug development, diagnostics, combinatorial chemistry, material sciences and nanotechnology. 29 The Acacia Technologies group is responsible for the development, acquisition, licensing and protection of intellectual property and proprietary technologies and is pursuing additional licensing and strategic business alliances with leading companies in the rapidly growing intellectual property licensing industry. The Acacia Technologies group owns and out-licenses a portfolio of pioneering U.S. and foreign patents covering digital audio and video transmission and receiving systems, commonly known as audio-on-demand, video-on-demand, and audio/video streaming. The Acacia Technologies group's patented proprietary digital media transmission, or DMT technology, enables the digitization, encryption, storage, transmission, receipt and playback of digital content via several means including the Internet, cable, satellite and wireless systems. The Acacia Technologies group also owns and has out-licensed to consumer electronics manufacturers, patented technology known as the V-chip. The V-chip technology was protected by U.S. Patent No. 4,554,584, which expired in July 2003. Operating activities for the first quarter of 2004 include the following: COMBIMATRIX GROUP: o In January 2004, the CombiMatrix group made the first commercially available microarray designed for the H5N1 influenza A virus ("bird flu"). The World Health Organization appealed on January 27, 2004 for technical assistance and expert advice to help stop the threat to humans and agriculture posed by bird flu virus. The CombiMatrix group utilized its proprietary probe-design software and ability to rapidly synthesize novel DNA microarrays to respond within two days. o In March 2004, the CombiMatrix group announced the launch of its CustomArray(TM) DNA Microarray platform, offering researchers the ability to order fully customizable arrays on demand. o In March 2004, the CombiMatrix group executed a two-year, $5.9 million contract with the Department of Defense to further the development of the CombiMatrix group's microarray technology for the detection of biological threat agents. o On March 12, 2004, Acacia Research Corporation's Acacia Research - CombiMatrix common stock began trading on the NASDAQ National Market system. The stock had previously traded on the NASDAQ SmallCap Market. o During the first quarter of 2004, the CombiMatrix group entered into the following collaborations: Nanotechnology -------------- - a collaboration, funded by the National Science Foundation, with Washington University in St. Louis to develop a system for the synthesis of libraries of diverse, non-nucleic acid molecules. These libraries will be synthesized using CombiMatrix's semiconductor based microarrays and electrochemical synthetic methods. CombiMatrix NanoArrays(TM) will be used for the diverse chemical synthesis. - a collaboration with Cyrano Sciences on the development of chemical sensors which merge CombiMatrix's microarray technology with Cyrano's electronic nose technology. Express Tracksm --------------- - an expanded collaboration with Professor Bonaventura Clotet, M.D., Ph.D., of the Retrovirology Laboratory irsiCaixa, to conduct the initial efficacy screening of pooled siRNA compounds against the hepatitis C virus. Diagnostics ----------- - a collaboration with Dr. Ulrich Melcher, Department of Biochemistry and Molecular Biology and Dr. Alexander C. Lai, Department of Microbiology and Molecular Genetics, from Oklahoma State University, to utilize CombiMatrix's `Bird Flu' CustomArray(TM) devices to characterize Bird flu viruses at the genomic level. - a collaboration with St. Jude Children's Research Hospital to study the genetic variation in the H9 variant of Bird Flu. 30 - a collaboration with Case Western Reserve University for work in developing a novel diagnostic for Alzheimer's disease using the CustomArray(TM) platform. ACACIA TECHNOLOGIES GROUP: o As of May 2004, the Acacia Technologies group has entered into 120 DMT technology licensing agreements, including agreements with CinemaNow, Inc., Disney Enterprises, Inc., General Dynamics Interactive Corporation, Grupo Pegaso, LodgeNet Entertainment Corporation, NXTV, Inc., Oral Roberts University, T. Rowe Price, 24/7 University, Inc. and Virgin Radio. We have executed license agreements with companies in the hotel in-room entertainment, online music, movie, adult entertainment, e-learning, corporate and sports, news and information industries. The Acacia Technologies group continues to pursue additional licensing and strategic business alliances with leading companies in the rapidly growing intellectual property licensing industry. o In January 2004, the Acacia Technologies group was issued an additional European patent covering 14 countries for its DMT technology. The new patent provides additional coverage in Great Britain, Germany, France, Italy, Spain, Switzerland, Sweden, Denmark, Austria, Belgium, Netherlands, Monaco, Luxembourg and Greece. CRITICAL ACCOUNTING POLICIES Our unaudited interim financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America. Preparation of these statements requires management to make judgments and estimates. Some accounting policies have a significant impact on amounts reported in these financial statements. A summary of significant accounting policies and a description of accounting policies that are considered critical may be found in our 2003 Annual Report on Form 10-K, filed on March 3, 2004, in the Notes to the Consolidated Financial Statements and the Critical Accounting Policies section. In addition, refer to Note 2 to the consolidated interim financial statements included elsewhere herein. ACACIA RESEARCH CORPORATION CONSOLIDATED COMPARISON OF THE RESULTS OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 2004 AND 2003 NET INCOME (LOSS) (IN THOUSANDS) FOR THE THREE MONTHS ENDED ------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Net income (loss) ......................... $ 10,903 $ (6,667) The change in net income (loss) for the three months ended March 31, 2004 is primarily due to $17.3 million in previously deferred Roche Diagnostics GmbH ("Roche") related contract revenues recognized during the first quarter of 2004 as discussed below. We estimate that there will be sufficient losses from operations in the current fiscal year to offset any taxable income related to the Roche deferred contract revenues recognized during the three months ended March 31, 2004, resulting in no significant tax liability or expense in the current period or for the year ended December 31, 2004. REVENUES (IN THOUSANDS) FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Research and development contract ......... $ 17,302 $ -- License fees .............................. 599 6 Government contract ....................... 217 -- Service contracts ......................... 81 7 Products .................................. 16 209 Cost of product sales ..................... (4) (77) 31 RESEARCH AND DEVELOPMENT CONTRACT. In March 2004, the CombiMatrix group completed all phases of its research and development agreement with Roche. As a result of completing all of its obligations under this agreement and in accordance with the CombiMatrix group's revenue recognition policies for multiple-element arrangements, the CombiMatrix group recognized all previously deferred Roche related contract revenues during the first quarter of 2004. LICENSE FEES. License fee revenues are comprised of DMT technology license fees recognized by the Acacia Technologies group which increased primarily due to the significant growth in the number of DMT technology license agreements executed since March 31, 2003. License fee revenues will fluctuate from period to period based on the increase in license agreements executed, fluctuations in the sales results or other royalty per unit activities of our licensees that impact the calculation of license fees due, the timing of the receipt of periodic license fee payments from licensees, and other factors. Periodic license fee revenues may include amounts that relate to prior license periods or prior periods of infringement, which are recognized as revenues in the period received. GOVERNMENT CONTRACTS. In March 2004, the CombiMatrix group executed a two-year research and development contract with the Department of Defense to further the development of the CombiMatrix group's microarray technology for the detection of biological threat agents. Under the terms of the contract, the CombiMatrix group will be reimbursed on a periodic basis for actual costs incurred to perform its obligations, plus a fixed fee, of up to $5.9 million. Revenues are recognized under the percentage-of-completion method of accounting, using the cost-to-cost approach to measure completeness at the end of each reporting period. SERVICE CONTRACTS. The increase is due to $70,000 in service contract revenues recognized by CombiMatrix K.K. during the three months ended March 31, 2004. PRODUCTS AND COST OF PRODUCT SALES. Product revenues and costs of sales during the three months ended March 31, 2004 related to sales of microarrays primarily by CombiMatrix K.K. Product revenues and costs of product sales during the three months ended March 31, 2003 were recognized exclusively by CombiMatrix K.K. from the sale of a genomics microarray synthesizer and related microarray products and services to Japanese research institutions. RESEARCH AND DEVELOPMENT EXPENSES (IN THOUSANDS)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Research and development expenses ..................... $ 1,588 $ 2,335
RESEARCH AND DEVELOPMENT EXPENSES. The decrease was primarily due to the CombiMatrix group's completion of several Roche related research and development projects during the third and fourth quarters of 2003, and final completion of the research and development agreement with Roche in the first quarter of 2004. During the past three years, the CombiMatrix group's research and development activities were primarily driven by ongoing performance obligations under the product commercialization phase of the CombiMatrix group's license, research and development agreements with Roche. With the completion of the research and development agreement with Roche, future research and development expenses will be incurred in connection with the CombiMatrix group's commitments to the Department of Defense, Toppan Corporation Printing Co. and other internal research and development efforts in the areas of genomics, drug discovery and development and material sciences. The CombiMatrix group expects its research and development expenses to continue to be volatile and such expenses could increase in future periods as additional contract research and development agreements are undertaken. MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES AND LEGAL SETTLEMENT CHARGES (IN THOUSANDS)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Marketing, general and administrative expenses ........ $ 3,886 $ 4,255 Legal settlement charges .............................. 1,257 --
MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES. The decrease was due primarily to a decrease in corporate legal expenses and a general reduction in personnel related overhead expenses. This decrease was partially offset by an 32 increase in costs related to the Acacia Technologies group's ongoing DMT patent commercialization and enforcement efforts, including increased legal and engineering costs related to new patent claims, enforcement and the identification of additional potential licensees of our DMT technology. LEGAL SETTLEMENT CHARGES. In connection with the September 2002 settlement agreement between CombiMatrix Corporation, Dr. Donald Montgomery, and Nanogen, Inc., we recorded a non-cash charge totaling $1.3 million in the first quarter of 2004, which reflects the fair value of AR-CombiMatrix common stock issuable to Nanogen, Inc. in connection with certain anti-dilution provisions of the settlement agreement. Periodic charges and the related liability are estimated based on the number of shares potentially issuable and the AR-CombiMatrix stock price at the end of the respective reporting period. The increase is due primarily to the increase in AR-CombiMatrix stock price during the three months ended March 31, 2004, as compared to the same period in 2003. The anti-dilution provisions of the settlement agreement expire in September 2005. NON-CASH STOCK COMPENSATION AMORTIZATION (IN THOUSANDS)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Non-cash stock compensation amortization - research and development .......................... $ 69 $ 2 Non-cash stock compensation amortization - marketing, general and administrative ............. 334 138
The increase is due to the recognition of $743,000 in stock compensation expense reversals related to the forfeiture of certain unvested stock options during the three months ended March 31, 2003. Excluding the impact of stock compensation expense reversals during the three months ended March 31, 2003, non-cash stock compensation expense decreased during the three months ended March 31, 2004, as compared to the same period in 2003, primarily due to the accelerated method of amortization utilized pursuant to Financial Accounting Standards Board Interpretation No. 28, "Accounting for Stock Appreciation Rights and Other Variable Stock Option or Award Plans," or FIN No. 28, which results in higher amounts of amortization in the early vesting periods. The remaining amount of deferred stock compensation expense of $521,000 as of March 31, 2004, all related to the CombiMatrix group, is expected to be fully amortized by the end of 2004. INFLATION Inflation has not had a significant impact on Acacia Research Corporation. LIQUIDITY AND CAPITAL RESOURCES Acacia Research Corporation's consolidated cash and cash equivalents and short-term investments totaled $50.9 million at March 31, 2004 compared to $50.5 million at December 31, 2003. Working capital at March 31, 2004 was $48.4 million, compared to $30.7 million at December 31, 2003. Working capital increased due primarily to the recognition of $17.3 million in deferred contract revenues during the three months ended March 31, 2004. Net cash used in continuing operating activities for the three months ended March 31, 2004 was $3.8 million, compared to $4.6 million in the same period in 2003. Net cash outflows from operations for the three months ended March 31, 2004 were comprised of $3.4 million in net cash outflows from operations for the CombiMatrix group, compared to $2.6 million in the same period in 2003 and $479,000 in net cash outflows from operations for the Acacia Technologies group, compared to $2.0 million in the same period in 2003. The change is primarily due to a decrease in the CombiMatrix group's research and development and marketing, general and administrative expenses, partially offset by $1.7 million in Roche related milestone payments and $271,000 related to the sale of a genomic microarray synthesizer system (all of which were included in deferred revenue at March 31, 2003) received by the CombiMatrix group during the three months ended March 31, 2003, compared to zero in the same period in 2004 and the impact of the timing of accruals and related vendor payments for both operating groups. Net cash flows provided by continuing investing activities was $494,000 for the three months ended March 31, 2004, compared to $2.0 million for the same period in 2003. The change is primarily due to a decrease in short-term investments sold during the three months ended March 31, 2004 in connection with Acacia Research Corporation's ongoing cash management activities. Net cash provided by financing activities was $4.4 million for the three months ended March 31, 2004, compared to zero in the same period in 2003. The increase was comprised of $4.4 million in proceeds received primarily from 33 the exercise of AR-CombiMatrix common stock options and warrants during the three months ended March 31, 2004. In April 2004, Acacia Research Corporation raised gross proceeds of $15,000,000 through the sale of 3,000,000 shares of Acacia Research - CombiMatrix common stock at a price of $5.00 per share in a registered direct offering. Net proceeds raised of approximately $13,600,000, which are net of related issuance costs, were attributed to the CombiMatrix group. Management believes that our cash and cash equivalent balances, anticipated cash flow from operations and other external sources of available credit will be sufficient to meet our cash requirements through at least the next twelve months. 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. If we fail to obtain additional funding when needed, we may not be able to execute our business plans and our business may suffer. See the CombiMatrix group and the Acacia Technologies group discussion and analysis for additional factors impacting the adequacy of our available funds. OFF-BALANCE SHEET ARRANGEMENTS We have not entered into off-balance sheet financing arrangements, other than operating leases. We have no significant commitments for capital expenditures in 2004. We have no committed lines of credit or other committed funding or long-term debt. The following table lists Acacia Research Corporation's material known future cash commitments:
PAYMENTS DUE BY PERIOD (IN THOUSANDS) ----------------------------------------------------------------------- CONTRACTUAL OBLIGATIONS REMAINING 2008 AND 2004 2005 2006 2007 THEREAFTER ----------- ----------- ----------- ----------- ----------- Operating Leases ................. $ 1,620 $ 2,221 $ 2,148 $ 1,976 $ 1,615 Minimum Royalty Payments(1) ...... 100 100 100 100 1,100 ----------- ----------- ----------- ----------- ----------- Total Contractual Cash Obligations $ 1,720 $ 2,321 $ 2,248 $ 2,076 $ 2,715 ========== ========== ========== ========== ==========
- --------------- (1) In accordance with the September 30, 2002 settlement agreement entered into between CombiMatrix Corporation, Dr. Don Montgomery and Nanogen, Inc., CombiMatrix Corporation is required to pay 12.5% of certain revenues, subject to minimum and maximum amounts not to exceed $1.5 million per year, beginning in the fourth quarter of 2003, for the remaining life of the CombiMatrix group's core patents. In connection with the purchase of the outstanding ownership interests in Acacia Media Technologies in November 2001, Acacia Media Technologies also executed related assignment agreements which granted to the former owners of Acacia Media Technologies' current patent portfolio the right to receive a royalty of 15% of future net revenues, as defined in the agreements, generated by Acacia Media Technologies' current patent portfolio, which includes its DMT patents. No royalty obligation has been incurred as of March 31, 2004. Any royalties paid pursuant to the agreements will be expensed in the consolidated statement of operations. RECENT ACCOUNTING PRONOUNCEMENTS Refer to Note 7 to the Acacia Research Corporation consolidated financial statements included elsewhere herein. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK Our exposure to market risk is limited primarily to interest income sensitivity, which is affected by changes in the general level of United States interest rates, particularly because a significant portion of our investments are in short-term debt securities issued by the U.S. government, U.S. corporations, institutional money market funds and other money market instruments. The primary objective of our investment activities is to preserve principal while at the same time maximizing the income received without significantly increasing risk. To minimize risk, we maintain a 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 and money market instruments. Due to the nature of our short-term investments, we believe that we are not subject to any material market risk exposure. We do not have any derivative financial instruments. 34 DISCUSSION OF SEGMENTS' OPERATIONS, FINANCIAL RESOURCES AND LIQUIDITY COMBIMATRIX GROUP MANAGEMENT'S DISCUSSION AND ANALYSIS (A DIVISION OF ACACIA RESEARCH CORPORATION) YOU SHOULD READ THIS DISCUSSION IN CONJUNCTION WITH THE COMBIMATRIX GROUP FINANCIAL STATEMENTS AND RELATED NOTES AND THE ACACIA RESEARCH CORPORATION 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, a division of Acacia Research Corporation, is primarily comprised of CombiMatrix Corporation and its wholly owned subsidiary, CombiMatrix K.K. and includes all corporate assets, liabilities and transactions related to Acacia Research Corporation's life sciences businesses. The CombiMatrix group's core technology opportunity in the life sciences sector has been developed primarily through CombiMatrix Corporation, which was formed in October 1995. The CombiMatrix group is a life sciences technology business that is developing a platform technology to rapidly produce customizable arrays, which are semiconductor-based tools for use in identifying and determining the roles of genes, gene mutations and proteins. The CombiMatrix group's technology has a wide range of potential applications in the areas of genomics, proteomics, biosensors, drug discovery, drug development, diagnostics, combinatorial chemistry, material sciences and nanotechnology. Although AR-CombiMatrix stock is intended to reflect the separate performance of the CombiMatrix group, rather than the performance of Acacia Research Corporation as a whole, the CombiMatrix group is not a separate legal entity. Holders of AR-CombiMatrix stock are stockholders of Acacia Research Corporation. As a result, they 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. 35 COMBIMATRIX GROUP (A DIVISION OF ACACIA RESEARCH CORPORATION) COMPARISON OF THE RESULTS OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 2004 AND 2003 NET INCOME (LOSS) (IN THOUSANDS)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Division net income (loss) ............................. $ 11,892 $ (5,173)
The change in net income (loss) for the three months ended March 31, 2004 is primarily due to $17.3 million in previously deferred Roche related contract revenues recognized during the first quarter of 2004 as discussed below. The CombiMatrix group estimates that there will be sufficient losses from operations in the current fiscal year to offset any taxable income related to the Roche deferred contract revenues recognized during the three months ended March 31, 2004, resulting in no significant tax liability or expense in the current period or for the year ended December 31, 2004. REVENUES (IN THOUSANDS)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Research and development contract ................ $ 17,302 $ -- Government contract .............................. 217 -- Service contracts ................................ 81 7 Products ......................................... 16 209 Cost of product sales ............................ (4) (77)
RESEARCH AND DEVELOPMENT CONTRACT. In March 2004, the CombiMatrix group completed all phases of its research and development agreement with Roche. As a result of completing all of its obligations under this agreement and in accordance with the CombiMatrix group's revenue recognition policies for multiple-element arrangements, the CombiMatrix group recognized all previously deferred Roche related contract revenues totaling $17.3 million during the first quarter of 2004. GOVERNMENT CONTRACT. In March 2004, the CombiMatrix group executed a two-year research and development contract with the Department of Defense to further the development of the CombiMatrix group's microarray technology for the detection of biological threat agents. Under the terms of the contract, the CombiMatrix group will be reimbursed on a periodic basis for actual costs incurred to perform its obligations, plus a fixed fee, of up to $5.9 million. Revenues are recognized under the percentage-of-completion method of accounting, using the cost-to-cost approach to measure completeness at the end of each reporting period. SERVICE CONTRACTS. The increase is due to $70,000 in service contract revenues recognized by CombiMatrix K.K. during the three months ended March 31, 2004. PRODUCTS AND COST OF PRODUCT SALES. Product revenues and costs of sales during the three months ended March 31, 2004 related to sales of microarrays primarily by CombiMatrix K.K. Product revenues and costs of product sales during the three months ended March 31, 2003 were recognized exclusively by CombiMatrix K.K. from the sale of a genomics microarray synthesizer and related microarray products and services to Japanese research institutions. RESEARCH AND DEVELOPMENT EXPENSES (IN THOUSANDS)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Research and development expenses ................ $ 1,588 $ 2,335
RESEARCH AND DEVELOPMENT EXPENSES. The decrease was primarily due to the CombiMatrix group's completion of several Roche related research and development projects during the third and fourth quarters of 2003, and final completion of the research and development agreement with Roche in the first quarter of 2004. During the past three years, the CombiMatrix group's research and development activities were primarily driven by ongoing performance 36 obligations under the product commercialization phase of the CombiMatrix group's license, research and development agreements with Roche. With the completion of the research and development agreement with Roche, future research and development expenses will be incurred in connection with the CombiMatrix group's commitments to the Department of Defense, Toppan Corporation Printing Co. and other internal research and development efforts in the areas of genomics, drug discovery and development and material sciences. The CombiMatrix group expects its research and development expenses to be volatile and such expenses could increase in future periods as additional contract research and development agreements are undertaken. MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES AND LEGAL SETTLEMENT CHARGES (IN THOUSANDS)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Marketing, general and administrative expenses ... $ 2,278 $ 2,670 Legal settlement charges ......................... 1,257 --
MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES. The change was due primarily to a decrease in corporate legal expenses during the three months ended March 31, 2004, as compared to the same period in 2003. In addition, the CombiMatrix group incurred certain severance and personnel-reduction costs that were not incurred during the three months ended March 31, 2004, contributing to the overall decrease in marketing, general and administrative expenses for the comparable periods. LEGAL SETTLEMENT CHARGES. In connection with the September 2002 settlement agreement between CombiMatrix Corporation, Dr. Donald Montgomery, and Nanogen, Inc., the CombiMatrix group recorded a non-cash charge totaling $1.3 million during the first quarter of 2004, which reflects the fair value of AR-CombiMatrix common stock issuable to Nanogen, Inc. in connection with certain anti-dilution provisions of the settlement agreement. Periodic charges and the related liability are estimated based on the number of shares potentially issuable and the AR-CombiMatrix stock price at the end of the respective reporting period. The increase is due primarily to the increase in AR-CombiMatrix stock price during the three months ended March 31, 2004, as compared to the same period in 2003. The anti-dilution provisions of the settlement agreement expire in September 2005. NON-CASH STOCK COMPENSATION AMORTIZATION (IN THOUSANDS)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Non-cash stock compensation amortization - research and development ..................... $ 69 $ 2 Non-cash stock compensation amortization - marketing, general and administrative ........ 334 138
The increase is due to the recognition of $743,000 in stock compensation expense reversals related to the forfeiture of certain unvested stock options during the three months ended March 31, 2003. Excluding the impact of stock compensation expense reversals during the three months ended March 31, 2003, non-cash stock compensation expense decreased during the three months ended March 31, 2004, as compared to the same period in 2003, primarily due to the accelerated method of amortization utilized pursuant to FIN No. 28, which results in higher amounts of amortization in the early vesting periods. The remaining amount of deferred stock compensation expense of $521,000 as of March 31, 2004 is expected to be fully amortized by the end of 2004. INFLATION Inflation has not had a significant impact on the CombiMatrix group in the current or prior periods. LIQUIDITY AND CAPITAL RESOURCES At March 31, 2004, cash and cash equivalents and short-term investments totaled $18.4 million, compared to $17.3 million at December 31, 2003. Working capital at March 31, 2004 was $16.7 million, compared to a working capital deficit of $2.0 million at December 31, 2003. Working capital increased due primarily to the recognition of $17.3 million in deferred contract revenues during the three months ended March 31, 2004. Net cash used in operations was $3.4 million during the three months ended March 31, 2004, compared to $2.6 million in same period in 2003. The change is primarily due to a decrease in the CombiMatrix group's research and 37 development and marketing, general and administrative expenses, partially offset by $1.7 million in Roche related milestone payments and $271,000 related to the sale of a genomic microarray synthesizer system (all of which were included in deferred revenue at March 31, 2003) received by the CombiMatrix group during the three months ended March 31, 2003, compared to zero in the same period in 2004 and the impact of the timing of accruals and related vendor payments. Net cash flows used in investing activities was $1.5 million during the three months ended March 31, 2004, compared to net cash provided by investing activities of $2.0 million in the same period in 2003. The change was primarily due to an increase in short term investments in connection with the CombiMatrix group's ongoing short term cash management activities. Net cash inflows attributed to the CombiMatrix group from financing activities was $4.5 million during the three months ended March 31, 2004, compared to $275,000 in the same period in 2003, primarily due to the receipt of $4.4 million in proceeds from the exercise of AR-CombiMatrix stock options and warrants during the three months ended March 31, 2004. In April 2004, Acacia Research Corporation raised gross proceeds of $15,000,000 through the sale of 3,000,000 shares of Acacia Research - CombiMatrix common stock at a price of $5.00 per share in a registered direct offering. Net proceeds raised of approximately $13,600,000, which are net of related issuance costs, were attributed to the CombiMatrix group. The CombiMatrix group believes that its cash and cash equivalent and short-term investment balances, anticipated cash flow from operations and other external sources of available credit will be sufficient to meet its cash requirements through at least the next twelve months. However, changes may occur that would cause the CombiMatrix group's available capital resources to be consumed significantly sooner than it currently expects. To date, the CombiMatrix group has relied primarily upon selling equity securities, as well as payments from strategic partners 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. The CombiMatrix group's long-term capital requirements will be substantial 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, including acquisition of additional inventories and capital equipment; and o other factors that may not be within the CombiMatrix group's control. 38 OFF-BALANCE SHEET ARRANGEMENTS The CombiMatrix group has not entered into off-balance sheet financing arrangements, other than operating leases. The CombiMatrix group has no significant commitments for capital expenditures in 2004. The CombiMatrix group has no committed lines of credit or other committed funding or long-term debt. The following table lists the CombiMatrix group's material known future cash commitments:
PAYMENTS DUE BY PERIOD (IN THOUSANDS) ----------------------------------------------------------------------- CONTRACTUAL OBLIGATIONS REMAINING 2008 AND 2004 2005 2006 2007 THEREAFTER ----------- ----------- ----------- ----------- ----------- Operating Leases (2) ............. $ 1,398 $ 1,918 $ 1,836 $ 1,937 $ 1,615 Minimum Royalty Payments(1) ...... 100 100 100 100 1,100 ----------- ----------- ----------- ----------- ----------- Total Contractual Cash Obligations $ 1,498 $ 2,018 $ 1,936 $ 2,037 $ 2,715 =========== =========== =========== =========== ===========
- --------------- (1) In accordance with the September 30, 2002 settlement agreement entered into between CombiMatrix Corporation, Dr. Don Montgomery and Nanogen, Inc., CombiMatrix Corporation is required to pay 12.5% of certain revenues, subject to minimum and maximum amounts not to exceed $1.5 million per year, beginning in the fourth quarter of 2003, for the remaining life of the CombiMatrix group's core patents. (2) Excludes any allocated rent expense in connection with Acacia Research Corporation's management allocation policies. RECENT ACCOUNTING PRONOUNCEMENTS Refer to Note 7 to the Acacia Research Corporation consolidated 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 March 31, 2004, the CombiMatrix group had certain assets and liabilities denominated in Japanese Yen as a result of forming CombiMatrix K.K. However, due to the relative insignificance of those amounts, the CombiMatrix group does not believe that it has significant exposure to foreign 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 future periods. 39 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 FINANCIAL STATEMENTS AND RELATED NOTES AND THE ACACIA RESEARCH CORPORATION 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 Corporation, is comprised primarily of Acacia Research Corporation's wholly owned media technology subsidiaries, Acacia Media Technologies Corporation and Soundview Technologies, Inc., or Soundview Technologies, and also includes all other related corporate assets and liabilities and related transactions of Acacia Research Corporation that are attributed to its media technology businesses. Although the AR-Acacia Technologies stock is intended to reflect the separate performance of the Acacia Technologies group, rather than the performance of Acacia Research Corporation as a whole, the Acacia Technologies group is not a separate legal entity. Holders of the AR-Acacia Technologies stock are stockholders of Acacia Research Corporation. As a result, they continue to be subject to all of the risks of an investment in Acacia Research Corporation and all of Acacia Research Corporation's businesses, assets and liabilities. The assets Acacia Research Corporation attributes to the Acacia Technologies group could be subject to the liabilities of the CombiMatrix group. The Acacia Technologies group owns and is developing a portfolio of U.S. and international pioneering patents covering the transmission and receipt of digital content. These transmission and receiving systems are commonly referred to as audio-on-demand, video-on-demand, and audio/video streaming. The Acacia Technologies group's patented proprietary digital media transmission technology is referred to as "DMT" technology. The Acacia Technologies group also owns a patent for a system that screens television content by content rating code, commonly referred to as V-chip technology. The system, which uses the audio and video blanking interval in conjunction with rating codes which are transmitted with television programming, was approved by the Federal Communication Commission or FCC and adopted by television manufacturers as the industry standard in response to the U.S. Telecommunications Act of 1996. 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 technologies industry. The Acacia Technologies group's patent on the V-chip technology expired in July 2003. However, depending on the outcome of ongoing licensing efforts and related infringement actions, the Acacia 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 Technologies group is marketing its DMT technology and is looking to acquire other technologies. Acacia Technologies group's digital media transmission patent portfolio expires in 2011 in the U.S. and in 2012 in international markets. If we do not succeed in acquiring such technologies or are unable to successfully commercially license our existing and future technologies, our financial condition may be adversely impacted. 40 ACACIA TECHNOLOGIES GROUP (A DIVISION OF ACACIA RESEARCH CORPORATION) COMPARISON OF THE RESULTS OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 2004 AND 2003 NET LOSS (IN THOUSANDS)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Net loss ......................................... $ (989) $ (1,494)
The change in net loss is due primarily to an increase in DMT technology license fee revenues recognized by the Acacia Technologies group during the three months ended March 31, 2004, as compared to the same period in 2003, as discussed below. REVENUES (IN THOUSANDS)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- License fees ..................................... $ 599 $ 6
LICENSE FEES. License fee revenues are comprised of DMT technology license fees recognized by the Acacia Technologies group which increased primarily due to the significant growth in the number of DMT technology license agreements executed since March 31, 2003. License fee revenues will fluctuate from period to period based on the increase in license agreements executed, fluctuations in the sales results or other royalty per unit activities of our licensees that impact the calculation of license fees due, the timing of the receipt of periodic license fee payments from licensees, and other factors. Periodic license fee revenues may include amounts that relate to prior license periods or prior periods of infringement, which are recognized as revenues in the period received. MARKETING, GENERAL AND ADMINISTRATIVE EXPENSE (IN THOUSANDS)
FOR THE THREE MONTHS ENDED --------------------------------- MARCH 31, 2004 MARCH 31, 2003 -------------- -------------- Marketing, general and administrative expenses ... $ 1,006 $ 1,323 Legal expenses - patents ......................... 602 262
MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES. The decrease was due primarily to a decrease in corporate legal expenses and a general reduction in personnel related overhead expenses. This decrease was partially offset by an increase in costs related to the Acacia Technologies group's ongoing DMT patent commercialization and enforcement efforts, including increased legal and engineering costs related to new patent claims, enforcement and the identification of additional potential licensees of our DMT technology. INFLATION Inflation has not had a significant impact on the Acacia Technologies group in the current or previous periods. LIQUIDITY AND CAPITAL RESOURCES The Acacia Technologies group's cash and cash equivalents and short-term investments totaled $32.5 million at March 31, 2004, compared to $33.2 million at December 31, 2003. Working capital at March 31, 2004 was $31.7 million, compared to $32.7 million at December 31, 2003. Net cash used in continuing operating activities for the three months ended March 31, 2004 was $479,000, compared to $2.0 million in the same period in 2003. The change is due primarily to an increase in DMT license fee payments received during the three months ended March 31, 2004 and the impact of the timing of accruals and related vendor payments. 41 Net cash flows provided by investing activities was $2.0 million during the three months ended March 31, 2004 related to the sale of short term investments in connection with the Acacia Technologies group's ongoing short term cash management activities. Net cash flows from investing activities were not material in the comparable 2003 period. The Acacia Technologies group believes that its cash and cash equivalent balances, anticipated cash flow from operations and other external sources of available credit will be sufficient to meet its cash requirements through at least the next twelve months. To date, the Acacia Technologies group has relied primarily upon selling of Acacia Research Corporation equity securities and payments from our V-chip licensees, primarily in 2001, to generate the funds needed to finance the operations of the Acacia Technologies group. The V-chip patent expired 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 United States before the expiration date. In 2003, the Acacia Technologies group began to commercially license its DMT technology recognizing $1.3 million in DMT license fee revenues to date, and intends to acquire and develop additional intellectual property. However, there can be no assurance that the Acacia Technologies group will be able to implement its future plans. Failure by management to achieve its plans would have a material adverse effect on the Acacia Technologies group and on Acacia Research Corporation's ability to achieve its intended business objectives. The Acacia Technologies group's success also depends on its ability to protect its intellectual property. The timing of the receipt of revenues by the Acacia Technologies group's business operations are subject to certain risks and uncertainties, including: o market acceptance of our technologies and services; o business activities and financial results of our licensees; o technological advances that may make our technologies obsolete or less competitive; o increases in operating costs, including costs for legal services, engineering and research and personnel; o the availability and cost of capital; o general economic conditions; and o governmental regulation that may restrict the Acacia Technologies group's business. OFF-BALANCE SHEET ARRANGEMENTS The Acacia Technologies group has not entered into off-balance sheet financing arrangements, other than operating leases. The Acacia Technologies group has no significant commitments for capital expenditures in 2004. The Acacia Technologies group has no committed lines of credit or other committed funding or long-term debt. The following table lists the Acacia Technologies group's material known future cash commitments:
PAYMENTS DUE BY PERIOD (IN THOUSANDS) -------------------------------------------------------------- CONTRACTUAL OBLIGATIONS REMAINING 2008 AND 2004 2005 2006 2007 THEREAFTER --------- --------- --------- --------- ---------- Operating Leases (1) ............. $ 222 $ 303 $ 312 $ 39 $ -- --------- --------- --------- --------- --------- Total Contractual Cash Obligations $ 222 $ 303 $ 312 $ 39 $ -- ========= ========= ========= ========= =========
- ---------------- (1) Excludes any allocated rent expense in connection with Acacia Research Corporation's management allocation policies. In connection with the purchase of the outstanding ownership interests in Acacia Media Technologies in November 2001, Acacia Media Technologies also executed related assignment agreements which granted to the former owners of Acacia Media Technologies' current patent portfolio the right to receive a royalty of 15% of future net revenues, as defined in the agreements, generated by Acacia Media Technologies' current patent portfolio, which includes its DMT patents. No royalty obligation has been incurred as of December 31, 2003. Any royalties paid pursuant to the agreements will be expensed in the statement of operations. 42 RECENT ACCOUNTING PRONOUNCEMENTS Refer to Note 7 to the Acacia Research Corporation consolidated financial statements included elsewhere herein. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK The Acacia Technologies group's exposure to market risk is limited primarily to interest income sensitivity, which is affected by changes in the general level of United States interest rates, particularly because a significant portion of our investments are in short-term debt securities issued by United States corporations, institutional money market funds and other money market instruments. The primary objective of our investment activities is to preserve principal while at the same time maximizing the income received without significantly increasing risk. To minimize risk, we maintain a portfolio of cash, cash equivalents and short-term investments in a variety of investment-grade securities and with a variety of issuers, including U.S. government and corporate notes and bonds, commercial paper and money market instruments. Due to the nature of our short-term investments, we believe that we are not subject to any material market risk exposure. We do not have any derivative financial instruments. 43 RISK FACTORS AN INVESTMENT IN OUR STOCK INVOLVES A NUMBER OF RISKS. BEFORE MAKING A DECISION TO PURCHASE OUR SECURITIES, YOU SHOULD CAREFULLY CONSIDER ALL OF THE RISKS DESCRIBED IN THIS QUARTERLY REPORT. IF ANY OF THE RISKS DISCUSSED IN THIS QUARTERLY REPORT ACTUALLY OCCUR, OUR BUSINESS, FINANCIAL CONDITION AND RESULTS OF OPERATIONS COULD BE MATERIALLY ADVERSELY AFFECTED. IF THIS WERE TO OCCUR, THE TRADING PRICE OF OUR SECURITIES COULD DECLINE SIGNIFICANTLY AND YOU MAY LOSE ALL OR PART OF YOUR INVESTMENT. GENERAL RISKS THE CONTINUING WORLDWIDE ECONOMIC SLOWDOWN AND RELATED UNCERTAINTIES MAY CONTINUE TO ADVERSELY IMPACT OUR REVENUES AND OPERATING RESULTS. Slower economic activity, concerns about inflation, decreased consumer confidence, reduced corporate profits and capital spending, adverse business conditions and liquidity concerns in the technology and biotechnology and related industries, the lingering effects of the war in Iraq, recent international conflicts and the events of September 11, 2001 and other terrorist and military activity have resulted in a continuing downturn in worldwide economic conditions. We cannot predict the timing, strength and duration of any economic recovery in our industries. These conditions make it extremely difficult for us to accurately forecast and plan future business activities. We cannot predict the timing, strength and duration of any economic recovery, worldwide or in our markets. If such conditions continue or worsen, our business, financial condition and results of operations will likely be materially and adversely affected. BECAUSE OUR BUSINESS OPERATIONS ARE SUBJECT TO MANY INHERENT AND UNCONTROLLABLE RISKS, WE MAY NOT SUCCEED. We have significant economic interests in our subsidiary companies. Our business operations are subject to numerous risks, challenges, expenses and uncertainties inherent in the establishment of new business enterprises. Many of these risks and challenges are subject to outside influences over which we have no control, including: o our subsidiary companies' products and services face uncertain market acceptance; o technological advances may make our subsidiary companies' products and services obsolete or less competitive; o competition is intense in the industries in which our subsidiaries do business; o increases in operating costs, including costs for supplies, personnel and equipment; o the availability and cost of capital; o general economic conditions; and o governmental regulation that excessively restricts our subsidiary companies' businesses. We cannot assure you that our subsidiary companies will be able to market any product or service on a large commercial scale, that our subsidiary companies will ever achieve or maintain profitable operations or that they, or we, will be able to remain in business. WE HAVE A HISTORY OF LOSSES AND EXPECT TO INCUR ADDITIONAL LOSSES IN THE FUTURE. We have sustained substantial losses since our inception resulting in an accumulated deficit, as of March 31, 2004, of $172.5 million on a consolidated basis. We may never become profitable or if we do, we may never be able to sustain profitability. We expect to incur significant research and development, marketing, general and administrative expenses. As a result, we expect to incur significant losses for the foreseeable future. 44 OUR STOCK PRICES MAY BE VOLATILE, WHICH COULD RESULT IN SUBSTANTIAL LOSSES FOR INVESTORS IN OUR SECURITIES. The stock markets in general, and the markets for technology stocks in particular, have experienced extreme volatility that has often been unrelated to the operating performance of particular companies. These broad market fluctuations may adversely affect the trading prices of our two classes of common stock. The market prices of our securities may also fluctuate significantly in response to the following factors, some of which are beyond our control: o variations in our quarterly operating results; o changes in management's or securities analysts' estimates of our financial performance; o changes in market valuations of similar companies; o announcements by us or our competitors of significant contracts, acquisitions, strategic partnerships, joint ventures, capital commitments, new products or product enhancements; o failure to complete significant transactions; and o additions or departures of key personnel. BECAUSE CERTAIN OF OUR SUBSIDIARY COMPANIES MAY NOT GENERATE ANY SIGNIFICANT REVENUES, AND OPERATING RESULTS FROM OUR SUBSIDIARY COMPANIES MAY FLUCTUATE SIGNIFICANTLY, OUR OWN OPERATING RESULTS MAY BE NEGATIVELY AFFECTED. Our operating results may be materially impacted by the operating results of our subsidiary companies. We cannot assure that these companies will be able to meet their anticipated working capital needs to develop their products and services. If they fail to properly develop these products and services, they will be unable to generate meaningful product sales. We anticipate that our operating results are likely to vary significantly as a result of a number of factors, including: o the timing of new product introductions by each subsidiary company; o the stage of development of the business of each subsidiary company; o the technical feasibility of each subsidiary company's technologies and techniques; o the novelty of the technology owned by our subsidiary companies; o the accuracy, effectiveness and reliability of products developed by our subsidiary companies; o the level of product acceptance; o the strength of each subsidiary company's intellectual property rights; o the ability of each subsidiary company to avoid infringing the intellectual property rights of others; o each subsidiary company's ability to exploit and commercialize its technology; o the volume and timing of orders received and product line maturation; o the impact of price competition; and o each subsidiary company's ability to access distribution channels. 45 Many of these factors are beyond our subsidiary companies' control. We cannot provide any assurance that any subsidiary company will experience growth in the future or be profitable on an operating basis in any future period. IF WE, OR OUR SUBSIDIARIES, ENCOUNTER UNFORESEEN DIFFICULTIES AND CANNOT OBTAIN ADDITIONAL FUNDING ON FAVORABLE TERMS, OUR BUSINESS MAY SUFFER. As of March 31, 2004, we had cash and short-term investments of $50.9 million on our consolidated financial statements. 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 implementing their plans of operations. 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 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. Nevertheless, we cannot assure that additional funding will be available on favorable terms, if at all. If we fail to obtain additional funding when needed for our subsidiary companies and ourselves, we may not be able to execute our business plans and our business may suffer. BECAUSE WE HAVE A LIMITED OPERATING HISTORY, WE CANNOT ASSURE THAT OUR OPERATIONS WILL BE PROFITABLE. We commenced operations in 1993 and, accordingly, have a limited operating history. In addition, certain of our subsidiary companies are in the early stages of development and/or operations and have limited operating histories. You should consider our prospects in light of the risks, expenses and difficulties frequently encountered by companies with such limited operating histories. Since we have a limited operating history, we cannot assure you that our operations will be profitable or that we will generate sufficient revenues to meet our expenditures and support our activities. Despite net operating income of $10.7 million and net income of $10.9 million for the three months ended March 31, 2004, we have sustained substantial losses since our inception resulting in an accumulated deficit as of March 31, 2004, of $172.5 million on a consolidated basis. If we continue to incur operating losses in future periods, we may not have enough money to expand our business and our subsidiary companies' businesses in the future. OUR FUTURE SUCCESS DEPENDS IN PART ON THE CONTINUED SERVICE OF OUR KEY EXECUTIVES, AND THE LOSS OF ANY OF THESE KEY EXECUTIVES COULD ADVERSELY AFFECT OUR BUSINESS AND OPERATING RESULTS. Our success depends in part upon the continued service of our executive officers, particularly Paul R. Ryan, our Chairman and Chief Executive Officer, Robert L. Harris, II, our President, and Dr. Amit Kumar, President and Chief Executive Officer of CombiMatrix Corporation. Neither Messrs. Ryan or Harris nor Dr. Kumar has an employment or non-competition agreement with us. The loss of any of these key individuals would be detrimental to our ongoing operations and prospects. OUR FUTURE SUCCESS AND THE SUCCESS OF OUR SUBSIDIARY COMPANIES DEPENDS ON OUR AND THEIR ABILITIES TO ATTRACT AND RETAIN QUALIFIED TECHNICAL PERSONNEL AND QUALIFIED MANAGEMENT AND MARKETING TEAMS. FAILURE TO DO SO WOULD HARM OUR ONGOING OPERATIONS AND BUSINESS PROSPECTS. We believe that our success will depend on continued employment by us and our subsidiary companies of senior management and key technical personnel. Our subsidiary companies will need to attract, retain and motivate qualified management personnel to execute their current business plans and to successfully develop commercially viable products and services. Competition for qualified personnel is intense and we cannot assure you that we will successfully retain our existing key employees or attract and retain any additional personnel we may require. Each of our subsidiary companies has key executives upon whom we significantly depend, and the success of those subsidiary companies depends on their ability to retain and motivate those individuals. 46 FAILURE TO EFFECTIVELY MANAGE OUR GROWTH COULD PLACE STRAINS ON OUR MANAGERIAL, OPERATIONAL AND FINANCIAL RESOURCES AND COULD ADVERSELY AFFECT OUR BUSINESS AND OPERATING RESULTS. Our growth has placed, and is expected to continue to place, a strain on our managerial, operational and financial resources. Further, as our subsidiary companies' businesses grow, we will be required to manage multiple relationships. Any further growth by us or our subsidiary companies or an increase in the number of our strategic relationships will increase this strain on our managerial, operational and financial resources. This strain may inhibit our ability to achieve the rapid execution necessary to successfully implement our business plan. In addition, our future success depends on our ability to expand our organization to match the growth of our subsidiaries. THE AVAILABILITY OF SHARES FOR SALE IN THE FUTURE COULD REDUCE THE MARKET PRICE OF OUR COMMON STOCK. In the future, we may issue securities to raise cash for acquisitions. We may also pay for interests in additional subsidiary companies by using a combination of cash and our common stock or just our common stock. We may also issue securities convertible into our common stock. Any of these events may dilute your ownership interest in us and have an adverse impact on the price of our common stock. In addition, sales of a substantial amount of our common stock in the public market, or the perception that these sales may occur, could reduce the market price of our common stock. This could also impair our ability to raise additional capital through the sale of our securities. DELAWARE LAW AND OUR CHARTER DOCUMENTS CONTAIN PROVISIONS THAT COULD DISCOURAGE OR PREVENT A POTENTIAL TAKEOVER OF ACACIA RESEARCH CORPORATION THAT MIGHT OTHERWISE RESULT IN OUR STOCKHOLDERS RECEIVING A PREMIUM OVER THE MARKET PRICE OF THEIR SHARES. Provisions of Delaware law and our certificate of incorporation and bylaws could make more difficult the acquisition of Acacia Research Corporation by means of a tender offer, proxy contest or otherwise, and the removal of incumbent officers and directors. These provisions include: o Section 203 of the Delaware General Corporation Law, which prohibits a merger with a 15%-or-greater stockholder, such as a party that has completed a successful tender offer, until three years after that party became a 15%-or-greater stockholder; o amendment of our bylaws by the stockholders requires a two-thirds approval of the outstanding shares; o the authorization in our certificate of incorporation of undesignated preferred stock, which could be issued without stockholder approval in a manner designed to prevent or discourage a takeover; o provisions in our bylaws eliminating stockholders' rights to call a special meeting of stockholders, which could make it more difficult for stockholders to wage a proxy contest for control of our board of directors or to vote to repeal any of the anti-takeover provisions contained in our certificate of incorporation and bylaws; and o the division of our board of directors into three classes with staggered terms for each class, which could make it more difficult for an outsider to gain control of our board of directors. Such potential obstacles to a takeover could adversely affect the ability of our stockholders to receive a premium price for their stock in the event another company wants to acquire us. FUTURE CHANGES IN ACCOUNTING STANDARDS OR PRACTICES MAY CAUSE ADVERSE OR UNEXPECTED FLUCTUATIONS IN OUR REPORTED RESULTS OF OPERATIONS. For example, any changes requiring that we record compensation expense in the statement of operations for employee stock options using the fair value method or changes in existing taxation rules related to stock options could have a significant negative impact on our reported results. Several agencies and entities are considering and the Financial Accounting Standards Board (the "FASB") has announced, proposals to change generally accept accounting principals in the United States that, if implemented, would require us to record charges to earnings for employee stock option grants. This pending requirement 47 would negatively impact our earnings. In addition the FASB has proposed a choice of valuation models to estimate the fair value of employee stock options. These models, including the Black-Scholes option pricing model, use varying methods and inputs and may yield significantly different results. If another party asserts that the fair values of our employee stock options are misstated, securities class action litigation could be brought against us and/or the market price of our common stock could decline. RISKS RELATING TO THE COMBIMATRIX GROUP The risk factors beginning on this page discuss risks relating to the CombiMatrix group. Because each holder of AR- CombiMatrix stock is also a holder of the common stock of one company, Acacia Research Corporation, the risks associated with the Acacia Technologies group could affect our AR-CombiMatrix stock. As such, we urge you to read carefully the section "Risks Relating to the Acacia Technologies Group" below. 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 our 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; 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 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 48 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 OUR AR-COMBIMATRIX STOCK. 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 our 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. 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 our 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 DEPLOYING NEW AND 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 on a large scale. In order to successfully commercialize products on a large scale, 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 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. 49 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 on a mass scale, 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 additional 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. 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 on a large-scale, 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 were 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 50 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. 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 Corporation 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 51 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. 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 four patents issued in the United States, one patent issued in Europe and 46 patent applications pending in the United States, Europe and elsewhere. The patent application process before the United 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 52 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 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 the CombiMatrix group, we 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. RISKS RELATING TO THE ACACIA TECHNOLOGIES GROUP The risk factors beginning on this page discuss risks relating to the Acacia Technologies group. Because each holder of AR-Acacia Technologies stock is a holder of the common stock of one company, Acacia Research Corporation, the risks associated with the CombiMatrix group could affect the AR-Acacia Technologies stock. As such, we also urge you to read carefully the section "Risks Relating to the CombiMatrix Group" above. THE ACACIA TECHNOLOGIES GROUP HAS INCURRED LOSSES IN THE PAST AND EXPECTS TO INCUR ADDITIONAL LOSSES IN THE FUTURE. The Acacia Technologies group has sustained substantial losses in the past. We expect the Acacia Technologies group to incur significant research and development, marketing, general and administrative expenses. As a result, we expect the Acacia Technologies group to incur significant losses for the foreseeable future. THE V-CHIP TECHNOLOGY PATENT HELD BY THE ACACIA TECHNOLOGIES GROUP EXPIRED 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 Corporation as a whole, has generated substantially all of its revenues from licensing the V-chip technology to television manufacturers. The Acacia Technologies group's patent on the V-chip technology expired 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 United States 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 53 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. 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'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 Acacia Technologies group's revenues could fall below the expectations of securities analysts or investors, which could cause the market price of our 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 our AR-Acacia Technologies stock may decline significantly. TECHNOLOGY COMPANY STOCK PRICES ARE ESPECIALLY VOLATILE, AND THIS VOLATILITY MAY DEPRESS THE PRICE OF OUR AR-ACACIA TECHNOLOGIES STOCK. 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 our 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. 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 our AR-Acacia Technologies stock was the object of securities 54 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. 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 licensing of technologies based on existing transmission standards. The Acacia Technologies group's ability to compete in the future will, however, 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 did not infringe on Soundview Technologies' patent. If we are unsuccessful in our intended appeal of this ruling, legal principles will 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. 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 55 Technologies group's proprietary rights could materially and adversely affect its business and operational results. RISKS RELATING TO OUR CAPITAL STRUCTURE HOLDERS OF BOTH CLASSES OF OUR STOCK ARE 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 are 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 Corporation and all of our businesses, assets and liabilities. The issuance of our AR-CombiMatrix stock and our AR-Acacia Technologies stock and the allocation of assets and liabilities and stockholders' equity between the CombiMatrix group and the Acacia Technologies group did not result in a distribution or spin-off to stockholders of any of our assets or liabilities and did 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 MARKET PRICE OF EITHER CLASS OF OUR COMMON STOCK MAY NOT REFLECT THE SEPARATE PERFORMANCE OF THE GROUP RELATED TO THAT CLASS OF COMMON STOCK. The market price of our AR-CombiMatrix stock or AR-Acacia Technologies stock may not reflect the separate performance of the business of the group relating to that class of common stock. The market price of either class of common stock could simply reflect the performance of Acacia Research Corporation as a whole, or the market price of either class of common stock could move independently of the performance of the business of either group. Investors may discount the value of either class of common stock because it is part of a common enterprise rather than a stand-alone company. THE MARKET PRICE OF EITHER CLASS OF OUR COMMON STOCK MAY BE AFFECTED BY FACTORS THAT DO NOT AFFECT TRADITIONAL COMMON STOCK. THE COMPLEX NATURE OF THE TERMS OF OUR AR-COMBIMATRIX STOCK AND AR-ACACIA TECHNOLOGIES STOCK MAY ADVERSELY AFFECT THE MARKET PRICE OF EITHER CLASS OF COMMON STOCK. The complex nature of the terms of our two classes of common stock, such as the convertibility of AR-CombiMatrix stock into AR-Acacia Technologies stock, or vice versa, and the potential difficulties investors may have understanding these terms, may adversely affect the market price of either class of common stock. THE MARKET PRICE OF OUR AR-COMBIMATRIX STOCK OR AR-ACACIA TECHNOLOGIES STOCK MAY BE ADVERSELY AFFECTED BY THE FACT THAT HOLDERS HAVE LIMITED LEGAL INTERESTS IN THE GROUP RELATING TO THE CLASS OF COMMON STOCK HELD AS A SEPARATE LEGAL ENTITY. For example, as described in greater detail in the subsequent risk factors, holders of either class of common stock generally do not have separate class voting rights with respect to significant matters affecting either group. In addition, upon our liquidation or dissolution, holders of either class of common stock will not have specific rights to the assets of the group relating to the class of common stock held and will not be entitled to receive proceeds that are proportional to the relative performance of that group. 56 THE MARKET PRICE OF OUR AR-COMBIMATRIX STOCK OR AR-ACACIA TECHNOLOGIES STOCK MAY BE ADVERSELY AFFECTED BY EVENTS INVOLVING THE GROUP RELATING TO THE OTHER CLASS OF COMMON STOCK OR THE PERFORMANCE OF THE CLASS OF COMMON STOCK RELATING TO THAT GROUP. Events, such as earnings announcements or other developments concerning one group that the market does not view favorably and which thus adversely affect the market price of the class of common stock relating to that group, may adversely affect the market price of the class of common stock relating to the other group. Because both classes of common stock are common stock of Acacia Research Corporation, an adverse market reaction to one class of common stock may, by association, cause an adverse reaction to the other class of common stock. This reaction may occur even if the triggering event was not material to us as a whole. THE HOLDERS OF AR-COMBIMATRIX STOCK AND THE HOLDERS OF AR-ACACIA TECHNOLOGIES STOCK HAVE ONLY LIMITED SEPARATE STOCKHOLDER RIGHTS. Holders of AR-CombiMatrix stock and AR-Acacia Technologies stock have the rights customarily held by common stockholders. They also 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 stockholders). o We will not hold separate stockholder meetings for holders of AR-CombiMatrix stock and AR-Acacia Technologies stock. 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 our AR-CombiMatrix stock or our 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 our AR-CombiMatrix stock and our 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 our AR-CombiMatrix stock or our 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 57 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. OUR 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. Our restated certificate of incorporation provides that an amendment to our 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 our restated certificate 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 our 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 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. NUMEROUS POTENTIAL CONFLICTS OF INTERESTS EXIST BETWEEN OUR AR-COMBIMATRIX STOCK AND OUR 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 Corporation; 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. 58 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 our restated certificate of incorporation, and, to the extent applicable, our management and allocation policies. 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 our AR-CombiMatrix stock or our AR-Acacia Technologies stock. Determinations as to future dividends on our AR-CombiMatrix stock and our 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 Corporation as a whole. Subject to the limitations referred to below, our board of directors has the authority to declare and pay dividends on our AR-CombiMatrix stock and our AR-Acacia Technologies stock in any amount and could, in its sole discretion, declare and pay dividends exclusively on our AR-CombiMatrix stock, exclusively on our 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. 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 our restated 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. Our restated certificate of incorporation 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 Corporation 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 Corporation 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 ATTRIBUTED 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 ATTRIBUTED 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 attributed among the CombiMatrix group 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 attributed to the corresponding group. Such allocations might be materially more or less for the respective groups than what might have been attributed 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 Corporation as a whole, rather than the performance of the CombiMatrix group or the Acacia Technologies group. 59 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. 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. 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 Corporation 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. Our 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. 60 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 were 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 Corporation or any other benefits to be derived from holding a class of stock in Acacia Research Corporation. 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. OUR CAPITAL STRUCTURE AND THE VARIABLE VOTE PER SHARE COULD ENABLE A POTENTIAL ACQUIRER TO TAKE CONTROL OF OUR COMPANY THROUGH THE ACQUISITION OF ONLY ONE OF THE CLASSES OF OUR COMMON STOCK. A potential acquirer could acquire control of Acacia Research Corporation 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. Currently, our AR-CombiMatrix stock has a majority of the voting power. As a result, currently, it might be possible for an acquirer to obtain control of Acacia Research Corporation 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 our AR-CombiMatrix stock and our 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 our AR-CombiMatrix stock and our 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. INVESTORS MAY NOT VALUE OUR AR-COMBIMATRIX STOCK AND OUR AR-ACACIA TECHNOLOGIES STOCK BASED ON GROUP FINANCIAL INFORMATION AND POLICIES. We cannot assure you that investors will value our AR-CombiMatrix stock and our 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 Corporation subject to all the risks associated with an investment in Acacia Research Corporation 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 Corporation 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. 61 THERE ARE CERTAIN PROVISIONS IN OUR TWO-CLASS CAPITAL STRUCTURE 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 Corporation 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 Corporation. 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 Corporation, and preferred stock could also be privately placed with purchasers favorable to our board of directors in opposing such action. 62 ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK Refer to Item 2. "Management's Discussion and Analysis of Financial Condition and Results of Operations" under the caption "Quantitative and Qualitative Disclosures About Market Risk" for Acacia Research Corporation, the CombiMatrix group and the Acacia Technologies group. The primary objective of our investment activities is to preserve principal while concurrently maximizing the income we receive from our investments without significantly increasing risk. Some of the securities that we may invest in may be subject to market risk. This means that a change in prevailing interest rates may cause the principal amount of the investment to fluctuate. For example, if we hold a security that was issued with a fixed interest rate at the then-prevailing rate and the prevailing interest rate later rises, the current value of the principal amount of our investment will decline. To minimize this risk in the future, we intend to maintain our portfolio of cash equivalents and short-term investments in a variety of securities, including commercial paper, money market funds, high-grade corporate bonds, government and non-government debt securities and certificates of deposit. In general, money market funds are not subject to market risk because the interest paid on such funds fluctuates with the prevailing interest rate. As of March 31, 2004, all of our investments were in money market funds, high-grade corporate bonds, and U.S. government debt securities. A hypothetical 100 basis point increase in interest rates would not have a material impact on the fair value of our available-for-sale securities as of March 31, 2004. ITEM 4. CONTROLS AND PROCEDURES (a) As of the end of the period covered by this Quarterly Report on Form 10-Q, the effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) promulgated under the Securities Exchange Act of 1934) was evaluated by our management, with the participation of our Chief Executive Officer and our Chief Financial Officer. We have concluded that our disclosure controls and procedures are effective, as of the end of the period covered by this Report, to help ensure that information we are required to disclose in reports that we file with the SEC is accumulated and communicated to management and recorded, processed, summarized and reported within the time periods prescribed by the SEC. (b) There were no changes in our internal control over financial reporting that occurred during our last fiscal quarter (the quarter ended March 31, 2004) that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. 63 PART II--OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS SOUNDVIEW TECHNOLOGIES On April 5, 2000, Soundview Technologies 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 the United States District Court for the Eastern District of Virginia, alleging that television sets utilizing certain content blocking technology (commonly known as the "V-chip") and sold in the United States infringe Soundview Technologies' U.S. Patent No. 4,554,584. In September 2002, the U.S. District Court - Connecticut, granted a motion for summary judgment filed by defendants Sony Corporation of America, Inc., Sony Electronics, Inc., the Electronics Industries Alliance d/b/a Consumer Electronics Association, the Consumer Electronics Manufacturers Association, Mitsubishi Digital Electronics America, Inc., Mitsubishi Electronics America, Inc., Toshiba America Consumer Products, Inc. and Sharp Electronics Corporation (the "remaining defendants"). In granting the motion, the court ruled that the remaining defendants have not infringed on Soundview Technologies' patent. In September 2003, a motion for summary judgment filed by the remaining defendants was granted by the U.S. District Court - Connecticut on Soundview Technologies' anti-trust claims due to the court's previous ruling of non-infringement as described above. The decisions are currently being appealed to the U.S. Court of Appeals for the Federal Circuit. While we are currently appealing the two summary judgment rulings, litigation is inherently uncertain and we can give no assurance that we will be successful in any such appeals. The rulings have no impact on the revenues that we have recognized to date from licensees of our patented V-chip technology. Further, none of the revenues that we have recognized to date are contingent upon any court rulings or the future outcome of any litigation with unlicensed television manufacturers. ACACIA MEDIA TECHNOLOGIES CORPORATION In February 2003, Acacia Media Technologies initiated DMT patent infringement litigation in the Federal District Court for the Central District of California against approximately 39 defendants who provide adult oriented digital content over the Internet. As of March 31, 2004, nine of the original 39 defendants remain in the initial litigation. In December 2003, Acacia Media Technologies added an additional eight defendants to its pending patent infringement litigation described above. The new complaints, filed with the Federal District Court for the Central District of California, seek to create a defendant class for all adult entertainment companies that infringe Acacia Media Technologies' DMT patents by transmitting pre-recorded, digital audio and audio/video adult content via any electronic communication channel into or from the Central District of California, or that operate at least one interactive website where a user located in Central District of California can exchange information with a host computer. Defendant class action status, which must be approved by the court, would permit the court's rulings on certain key issues to legally bind all members of the class, whether or not they have been specifically named as defendants in the litigation. In November 2003, Acacia Media Technologies initiated a patent infringement lawsuit in the Federal District Court for the Central District of California against On Command Corporation, provider of interactive in-room entertainment, information and business services to the lodging industry, regarding Acacia Media Technologies' DMT technology. 64 ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits 31.1 Certifications of the Chief Executive Officer provided pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 31.2 Certifications of the Chief Financial Officer provided pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 32.1 Certifications of the Chief Executive Officer provided pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 32.2 Certifications of the Chief Financial Officer provided pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (b) Reports on Form 8-K On February 19, 2004, Acacia Research Corporation furnished, but did not file, a Current Report on Form 8-K containing the Company's press release announcing its earnings for the fourth quarter and fiscal year ended December 31, 2003. On March 11, 2004, Acacia Research Corporation filed a Current Report on Form 8-K which contained Acacia Research Corporation's press release announcing that its Acacia Research - CombiMatrix common stock will begin trading on the NASDAQ National Market system on March 12, 2004. 65 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. ACACIA RESEARCH CORPORATION By: /S/ Paul R. Ryan ---------------------------------- Paul R. Ryan Chief Executive Officer (Authorized Signatory) By: /S/ Clayton J. Haynes ---------------------------------- Clayton J. Haynes Chief Financial Officer /Treasurer (Principal Financial Officer) Date: May 4, 2004 66 EXHIBIT INDEX EXHIBIT NUMBER EXHIBIT - ------ ------- 31.1 Certifications of the Chief Executive Officer provided pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 31.2 Certifications of the Chief Financial Officer provided pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 32.1 Certifications of the Chief Executive Officer provided pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 32.2 Certifications of the Chief Financial Officer provided pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 67 EX-31.1 2 acacia_10qex31-1.txt EXHIBIT 31.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER I, Paul R. Ryan, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Acacia Research Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the periods covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared; (b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Dated: May 4, 2004 /s/ Paul R. Ryan ------------------------------------ PAUL R. RYAN CHAIRMAN AND CHIEF EXECUTIVE OFFICER (PRINCIPAL EXECUTIVE OFFICER) EX-31.2 3 acacia_10qex31-2.txt EXHIBIT 31.2 CERTIFICATION OF CHIEF FINANCIAL OFFICER I, Clayton J. Haynes, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Acacia Research Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the periods covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared; (b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Dated: May 4, 2004 /s/ Clayton J. Haynes ----------------------------- CLAYTON J. HAYNES CHIEF FINANCIAL OFFICER (PRINCIPAL FINANCIAL OFFICER) EX-32.1 4 acacia_10qex32-1.txt EXHIBIT 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report of Acacia Research Corporation (the "Company") on Form 10-Q for the quarterly period ended March 31, 2004, as filed with the Securities and Exchange Commission on May 4, 2004 (the "Report"), I, Paul R. Ryan, Chairman and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: 1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. By: /s/ Paul R. Ryan Paul R. Ryan Chairman and Chief Executive Officer (Principal Executive Officer) May 4, 2004 A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 ("Section 906"), or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906, has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request. EX-32.2 5 acacia_10qex32-2.txt EXHIBIT 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report of Acacia Research Corporation (the "Company") on Form 10-Q for the quarterly period ended March 31, 2004, as filed with the Securities and Exchange Commission on May 4, 2004 (the "Report"), I, Clayton J. Haynes, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: 1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. By: /s/ Clayton J. Haynes Clayton J. Haynes Chief Financial Officer (Principal Financial Officer) May 4, 2004 A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 ("Section 906"), or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906, has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request. -----END PRIVACY-ENHANCED MESSAGE-----