AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 26,
2006
REGISTRATION
NO. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
___________________
FORM
S-1
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
___________________
COMBIMATRIX
CORPORATION
(Exact
Name of Registrant as Specified in Its Charter)
___________________
Delaware
|
3826
|
47-0899439
|
(State
or other jurisdiction of
incorporation
or organization)
|
(Primary
Standard Industrial
Classification
Code Number)
|
(I.R.S.
Employer
Identification
Number)
|
6500
Harbour Heights Parkway
Suite
301
Mukilteo,
WA 98275
(425)
493-2000
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
___________________
Amit
Kumar, Ph.D.
President
& Chief Executive Officer
6500
Harbour Heights Parkway
Suite
301
Mukilteo,
WA 98275
(425)
493-2000
(Name,
address, including zip code, and telephone number, including area code, of
agent
for service)
___________________
|
Copies
to:
Raymond
A. Lee, Esq.
Steven
T. Anapoell, Esq.
Dennis
J. Rasor, Esq.
Greenberg
Traurig LLP
650
Town Center Drive, Suite 1700
Costa
Mesa, California 92626
(714)
708-6500
|
|
___________________
Approximate
date of commencement of proposed sale to the public:
As soon
as practicable after this registration statement becomes effective.
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, check
the following box.
o
If
this
Form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
o
If
this
Form is a post-effective amendment pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering.
o
If
this
Form is a post-effective amendment pursuant to Rule 462(d) under the Securities
Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering.
o
CALCULATION
OF REGISTRATION FEE
|
|
|
Title
of Securities to be Registered
|
Proposed
Maximum
Aggregate
Offering Price (1)
|
Amount
of
Registration
Fee
|
Common
Stock, par value $0.001
|
$52,365,810
|
$5,603.14
|
(1)
Calculated
pursuant to Rule 457(o) under the Securities Act. Pursuant to Rule 457(o) under
the Securities Act, the price per unit has been omitted. Pursuant to 457(f)(1)
under the Securities Act of 1933 and solely for the purpose of calculating
the
registration fee, the proposed maximum aggregate offering price is equal to
the
product of (i) $0.85.5, which is the average of the high and low prices per
share of Acacia Research-CombiMatrix common stock reported on Nasdaq on December
19, 2006, and (ii) 52,365,810, which is the maximum number of shares of Acacia
Research-CombiMatrix common stock that will be outstanding on the redemption
date.
WE
HEREBY
AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY
TO
DELAY ITS EFFECTIVE DATE UNTIL WE FILE A FURTHER AMENDMENT WHICH SPECIFICALLY
STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN
ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES
AND
EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
The
information in this prospectus is not complete and may be changed. We may not
issue these securities until the
registration
statement filed with the Securities and Exchange Commission becomes
effective.
PRELIMINARY
PROSPECTUS SUBJECT TO COMPLETION, DATED DECEBMER 26, 2006
COMBIMATRIX
CORPORATION
Split
Off from Acacia Research Corporation
We
are
currently a wholly owned subsidiary of Acacia Research Corporation
("
Acacia
").
This
prospectus is being furnished in connection with our split off from Acacia
and
the issuance of our common stock in the split off. Our businesses and assets
and
those of our subsidiaries constitute all of the businesses and assets of Acacia
that are attributed to Acacia’s CombiMatrix group.
Acacia
is
affecting the split off pursuant to the terms of its charter. Acacia’s charter
enables it to redeem all of the outstanding shares of its Acacia
Research-CombiMatrix common stock ("
AR-CombiMatrix
stock
"),
for
shares of our common stock. AR-CombiMatrix stock is a class of common stock
of
Acacia that is designed to reflect the economic performance of Acacia’s
CombiMatrix group. The redemption will be effective as of 9:00 a.m., New York
City time, on *, which we refer to as the “Redemption Date.” In the redemption,
you will be entitled to receive one share of CombiMatrix Corporation common
stock in exchange for each share of AR-CombiMatrix stock held by you on the
redemption date.
As
a
result of the redemption, we will issue one share of our common stock for each
share of AR-CombiMatrix stock, based upon the number of shares of AR-CombiMatrix
stock outstanding on *, and assuming no exercise of outstanding stock options
or
warrants.
No
stockholder approval of the split off is required, and none is being sought.
We
are not asking you for a proxy, and you are requested not to send us a
proxy.
There
is
currently no trading market for our common stock. We will apply to list our
common stock on the American Stock Exchange under the symbol
"CBMX."
IN
REVIEWING THIS PROSPECTUS, YOU SHOULD CAREFULLY CONSIDER THE MATTERS DESCRIBED
UNDER THE CAPTION "RISK FACTORS" BEGINNING ON PAGE
.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or determined if this prospectus
is
truthful or complete. Any representation to the contrary is a criminal
offense.
You
should rely only on the information contained in this prospectus. We have not
authorized any other person to provide you with different information. If anyone
provides you with different or inconsistent information, you should not rely
on
it. The information in this prospectus is current as of the date of this
prospectus. Our business, financial condition, results of operations and
prospects may have changed since that date.
The
Date
of this Prospectus is *
TABLE
OF CONTENTS
Summary
|
1
|
Risk
Factors
|
5
|
The
Split Off
|
14
|
Description
Of Capital Stock
|
16
|
Description
Of Business
|
19
|
Legal
Proceedings
|
33
|
Relationship
Of Acacia Research Corporation And Our Company After The Split
Off
|
33
|
Selected
Financial Data
|
34
|
Management’s
Discussion And Analysis Of Financial Condition And Results Of
Operations
|
36
|
Market
Price Of And Dividends On Common Equity And Related Stockholder
Matters
|
50
|
Directors
And Executive Officers
|
51
|
Executive
Compensation
|
55
|
Certain
Relationships And Related Transactions
|
62
|
Security
Ownership Of Certain Beneficial Owners And Management
|
62
|
Experts
|
64
|
Index
To Financial Statements
|
F-1
|
This
prospectus contains forward-looking statements that involve risks and
uncertainties. Our actual results could differ materially from those anticipated
in these forward-looking statements as a result of various factors including
those set forth under the heading "Risk Factors" in this
prospectus.
SUMMARY
REASON
FOR FURNISHING THIS PROSPECTUS
We
are
furnishing this prospectus to provide information to holders of AR-CombiMatrix
stock whose shares will be redeemed for shares of our common stock in the split
off.
THIS
PROSPECTUS IS NOT, AND IS NOT TO BE CONSTRUED AS, AN INDUCEMENT OR ENCOURAGEMENT
TO BUY OR SELL ANY OF OUR SECURITIES OR THOSE OF ACACIA.
The
information contained in this prospectus is believed by us to be accurate as
of
the date set forth on its cover. Changes may occur after that date, and we
will
not update the information except in the normal course of our public disclosure
obligations and practices and as otherwise required by the Securities Act of
1933.
OUR
COMPANY
We
are 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. Through the
year
ended December 31, 2005, our business included two operating subsidiaries,
CombiMatrix Molecular Diagnostics, Inc. and CombiMatrix K.K.
In
January of 2006, we sold 67% of our ownership interest in CombiMatrix K.K.
to a
third party.
We
are
seeking to become a broadly diversified biotechnology business, through the
development of proprietary technologies, products and services in the areas
of
drug development, genetic analysis, molecular diagnostics, nanotechnology
research, defense and homeland security markets, as well as other potential
markets where our products could be utilized. Among the technologies we have
developed is 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. This 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. Other technologies include proprietary molecular
synthesis and screening methods for the discovery of potential new drugs.
CombiMatrix Molecular Diagnostics, Inc., a wholly owned subsidiary located
in
Irvine, California, is exploring opportunities for our arrays in the field
of
molecular diagnostics. CombiMatrix K.K., a previously wholly owned Japanese
corporation located in Tokyo, Japan, has existed for the purposes of exploring
opportunities for our array system with pharmaceutical and biotechnology
companies in the Asian market.
Our
principal executive office is located at 6500 Harbour Heights Parkway, Suite
301, Mukilteo, WA 98275, and our phone number is (425) 493-2000.
RELATIONSHIP
TO ACACIA RESEARCH CORPORATION AFTER SPLIT OFF
We
are
currently a wholly owned subsidiary of Acacia. Following the split off, we
will
no longer be an affiliate of Acacia. Management of Acacia, including Acacia’s
senior officers and directors, will no longer be affiliates of our
company.
We
are
entering into a Distribution Agreement and a Tax Allocation Agreement with
Acacia to be effective on the redemption date. Pursuant to the Distribution
Agreement, the assets and liabilities of the CombiMatrix group will be legally
transferred to CombiMatrix Corporation or its subsidiaries, to the extent not
already owned by them. In addition, Acacia’s ownership of any subsidiary
attributable to the CombiMatrix group will be contributed to CombiMatrix
Corporation. The consequences of the Distribution Agreement will not have a
material affect on our financial statements.
Pursuant
to the Tax Allocation Agreement, we will agree to reimburse Acacia for all
taxes
owed by the CombiMatrix group for the period prior to the split off. We will
also agree to indemnify Acacia if our conduct following the split off causes
the
split off to be taxable to Acacia or its shareholders. Acacia will agree to
indemnify our company for any tax liability resulting from the split off and
relating to their respective actions prior to or after the split off. We believe
the transaction will qualify as a tax-free reorganization, so we do not expect
any tax liability for the split off related to our conduct prior to the split
off. We would be liable to Acacia if our conduct following the split off caused
the split off to be taxable to Acacia or its shareholders.
SPLIT
OFF
·
Company
effecting split off
|
Acacia
Research Corporation
|
·
Split
off company
|
CombiMatrix
Corporation
|
·
Redemption
date
|
*
|
·
Shares
Outstanding
Before
Split Off
After
Split Off
|
52,365,810
52,365,810
|
·
Proposed
Trading Symbol
Following Split Off
|
CBMX
|
Redemption
date
The
redemption date is 9:00 a.m., New York City time, on *. From and after the
redemption date, all of your rights as a holder of AR-CombiMatrix stock shall
cease, except for the right to receive shares of our common stock upon the
surrender of your shares of AR-CombiMatrix stock.
Split
off ratio
Each
share of AR-CombiMatrix stock will be redeemed in exchange for one share of
our
common stock.
Exchange
agent, transfer agent and registrar for the shares
Our
transfer agent will be U.S. Stock Transfer, located in Glendale,
California.
Surrendering
shares
We
will
deliver or make available to each holder of AR-CombiMatrix stock, from and
after
the redemption date, a letter of transmittal with which to surrender his or
her
shares in the redemption in exchange for shares of the appropriate series of
our
common stock.
Shares
to be outstanding following split off
Following
the split off, the former holders of AR-CombiMatrix stock will hold all of
the
outstanding shares of our common stock. On the redemption date, there will
be
outstanding 52,365,810 shares of our common stock, based upon the number of
shares of AR-CombiMatrix stock outstanding on December 15, 2006, and assuming
no
exercise of outstanding stock options or warrants.
Federal
income tax consequences of the split off
Acacia
has received a private letter ruling from the IRS in form and substance that
is
satisfactory to us and Acacia, with regard to the U.S. federal income tax
consequences of the split off to the effect that the split off will be treated
as a tax-free exchange under Section 355 of the Internal Revenue Code of 1986,
as amended. In a tax-free exchange, the holders of AR-CombiMatrix stock will
not
incur federal income tax as a result of the redemption.
Stock
exchange listing
There
is
currently no public market for CombiMatrix Corporation’s common stock. We will
apply to list our common stock on the American Stock Exchange under the symbol
"CBMX."
No
appraisal rights
Holders
of AR-CombiMatrix stock have no dissenters’ rights in connection with the split
off.
DIAGRAM
OF SPLIT OFF
SUMMARY
HISTORICAL FINANCIAL DATA
In
the
table below, we provide you with selected historical consolidated financial
data
of CombiMatrix Corporation, which is consistent with the CombiMatrix Group
historical financial data included in Acacia’s periodic reports filed with the
Securities and Exchange commission. We derived the historical consolidated
financial data from our audited consolidated financial statements for the years
ended December 31, 2003, 2004 and 2005 and the interim consolidated financial
data from our unaudited consolidated financial statements included elsewhere
in
this prospectus.
|
|
Years
Ended December 31,
|
|
For
the Nine Months
Ended
September 30,
|
|
|
|
2003
|
|
2004
|
|
2005
|
|
2005
|
|
2006
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
|
(in
thousands, except per share data)
|
|
Consolidated
Statements of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
456
|
|
$
|
19,641
|
|
$
|
8,033
|
|
$
|
4,389
|
|
$
|
4,881
|
|
Operating
expenses
|
|
|
(19,805
|
)
|
|
(19,397
|
)
|
|
(21,936
|
)
|
|
(15,629
|
)
|
|
(21,381
|
)
|
Other
income
|
|
|
214
|
|
|
330
|
|
|
1,335
|
|
|
491
|
|
|
1,008
|
|
Income
(loss) before minority interests and income taxes:
|
|
|
(19,135
|
)
|
|
574
|
|
|
(12,568
|
)
|
|
(10,749
|
)
|
|
(15,492
|
)
|
Benefit
for income taxes
|
|
|
136
|
|
|
136
|
|
|
167
|
|
|
133
|
|
|
34
|
|
Minority
interests
|
|
|
30
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Net
income (loss)
|
|
$
|
(18,969
|
)
|
$
|
710
|
|
$
|
(12,401
|
)
|
$
|
(10,616
|
)
|
$
|
(15,458
|
)
|
Unaudited
pro forma net loss per share
(1)
:
Basic
and diluted
|
|
|
|
|
|
|
|
$
|
(0.24
|
)
|
|
|
|
$
|
(0.30
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December
31,
|
|
September
30,
|
|
Pro
Forma
September
30,
|
|
|
|
2004
|
|
2005
|
|
2006
|
|
2006(2)
|
|
|
|
|
|
|
|
(unaudited)
|
|
Consolidated
Balance Sheet Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash,
cash equivalents and short-term investments
|
|
$
|
23,712
|
|
$
|
20,265
|
|
$
|
8,755
|
|
|
|
|
Working
capital
|
|
|
22,135
|
|
|
19,185
|
|
|
7,324
|
|
|
|
|
Total
assets
|
|
|
55,388
|
|
|
52,593
|
|
|
39,424
|
|
|
|
|
Total
liabilities:
|
|
|
8,560
|
|
|
7,495
|
|
|
5,204
|
|
$
|
4,485
|
|
Allocated
net worth
|
|
|
46,828
|
|
|
45,098
|
|
|
34,220
|
|
|
34,939
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
_________________________
(1)
|
Pro
forma basic and diluted net loss per share has been computed by dividing
net loss for the period by the number of AR-CombiMatrix shares assumed
to
be outstanding and converted into common stock of CombiMatrix Corporation
as of the redemption date.
|
(2)
|
Pro
forma balance sheet data reflects the reclassification of common
stock
warrants that have historically been classified as long term liabilities
due to Acacia’s redeemable equity structure, but which will be classified
as permanent equity in CombiMatrix Corporation’s consolidated balance
sheets after the Redemption Date.
|
Please
refer to the factors affecting comparability listed in the “Selected Financial
Data” section included below.
RISK
FACTORS
An
investment in our stock involves a number of risks. If any of the risks
discussed in this prospectus 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.
RISKS
RELATED TO THE SPLIT OFF
After
the separation, we will be required to raise capital on a stand-alone basis,
and
we will not have the benefit of Acacia’s consolidated financial strength or size
to support our capital needs.
Before
the separation, a substantial portion of our operations was financed by Acacia’s
sales of AR-CombiMatrix stock. After the separation, we will be required to
raise capital on a stand-alone basis. Although one of the purposes of the
separation is to permit us to achieve what our management believes is the most
appropriate capital structure for our businesses, there can be no assurance
that
this will be achieved, and the risk therefore exists that we may not be able
to
secure adequate debt or equity financing on desirable terms. If future
developments in the capital markets adversely affect the biotechnology industry,
we will not have the benefit of Acacia’s consolidated financial strength or size
to support our capital needs.
After
the
separation, our access to and cost of debt financing may be different from
the
historical access to and cost of debt financing of Acacia. Differences in access
to and cost of debt financing may result in differences in the interest rate
charged to us on financings, as well as the amounts of indebtedness, types
of
financing structures and debt markets that may be available to us. Although
one
of the purposes of the separation is to permit CombiMatrix Corporation to
achieve what our management believes is the most appropriate capital structure
for our business, we may not be able to secure adequate debt or equity financing
on desirable terms. Further, if future developments in the capital market
adversely affect the biotechnology industry, we will not have the benefit of
Acacia's consolidated financial strength to support our capital
needs.
Our
historical financial information may not be representative of the results of
CombiMatrix Corporation as an independent entity, and, therefore, may not be
reliable as an indicator of our historical or future
results.
The
historical financial information included in this document may not reflect
what
our results of operations, financial position and cash flows would have been
had
we been an independent entity for the periods presented. Because the financial
information included in this document reflects allocations for services provided
to the CombiMatrix group by Acacia, these allocations may not reflect the costs
we would have incurred for similar or incremental services as an independent
entity. In addition, the historical financial information included in this
document does not reflect transactions that have occurred since September 30,
2006, or that are expected to occur in connection with the separation. This
historical financial information also may not be reliable as an indicator of
future results.
After
the separation, our common stock may fail to meet the investing guidelines
of
institutional investors, which may negatively affect the price of our common
stock and impair our ability to raise capital through the sale of common
stock.
Some
of
the holders of AR-CombiMatrix stock are institutional investors bound by various
investing guidelines. In some cases companies are selected by institutional
investors based on factors such as market capitalization, industry, trading
liquidity and financial condition. The separation will reduce Acacia’s market
capitalization. As a result, our common stock that the holders of AR-CombiMatrix
stock will receive in the separation may not meet the investing guidelines
of
some institutional investors. Consequently, these institutional investors may
be
required to sell the CombiMatrix Corporation common stock that they receive
in
the separation or the AR-CombiMatrix stock prior to the redemption date. A
sufficient number of buyers may not be available in the market to absorb these
potential sales. Consequently, the stock price of our common stock may fall.
Any
such decline could impair our ability to raise capital through future sales
of
common stock.
We
may not be able to engage in desirable strategic transactions and equity
issuances following the separation.
Under
Section 355(e) of the Internal Revenue Code, Acacia will recognize taxable
gain
on the separation if there are one or more acquisitions of our stock
representing 50% or more of CombiMatrix stock, measured by vote or value, and
the stock acquisitions are found to be part of a plan or series of related
transactions that includes the separation. Our ability to issue additional
equity or engage in other strategic transactions may be constrained because
the
issuance or acquisition of additional capital stock may cause the separation
to
be taxable to Acacia, and under the tax allocation agreement we would be
required to indemnify Acacia against that tax. For a summary of Section 355(e)
of the Internal Revenue Code, see "
Federal
income tax consequences of the split off
"
below.
We
could incur significant tax liability if the split off from Acacia does not
qualify for tax-free treatment.
Acacia
received a private letter ruling from the IRS to the effect that, among other
things, the split off was tax free to Acacia and the Acacia stockholders under
Section 355 of the Internal Revenue Code. The private letter ruling, while
generally binding upon the IRS, was based upon factual representations and
assumptions and commitments on our behalf with respect to future operations
made
in the ruling request. The IRS could modify or revoke the private letter ruling
retroactively if the factual representations and assumptions in the request
were
materially incomplete or untrue, the facts upon which the private letter ruling
was based were materially different from the facts at the time of the split
off,
or if we do not meet certain commitments made.
If
the
split off failed to qualify under Section 355 of the Internal Revenue Code,
corporate tax would be payable by the consolidated group of which Acacia is
the
common parent based upon the difference between the aggregate fair market value
of the assets of our business and the adjusted tax bases of such business to
Acacia prior to the split off. The corporate level tax would be payable by
Acacia. We have agreed however, to indemnify Acacia for this and certain other
tax liabilities if they result from actions taken by us or from the split off.
In addition, under the Internal Revenue Code’s consolidated return regulations,
each member of the Acacia consolidated group, including our company, will be
severally liable for these tax liabilities. If we are required to indemnify
Acacia for these liabilities or otherwise are found liable to the IRS for these
liabilities, the resulting obligation could materially and adversely affect
our
financial condition.
Our
common stock will trade as a new listing on the American Stock Exchange, and
if
the price of our stock does not meet the minimum requirements for stabilizing
above $3.00 per share, our stock may be delisted from
Amex.
Although
AR-CombiMatrix stock is currently traded on Nasdaq, our company will be subject
to the new listing requirements of Nasdaq or another national exchange. As
a
result, we are submitting a new listing application for our stock to be traded
on Amex. There can be no assurance that our stock will be accepted for listing
on Amex. Our common stock will be subject to the new listing requirements of
Amex that include a requirement that the stock initially trade above $3.00
per
share. If the price of our common stock following the redemption does not
stabilize at $3.00 or more per share, our stock may be delisted from Amex.
If we
are delisted from Amex, our stock will likely be traded on the Over-the-Counter
Bulletin Board until we are able to meet the listing requirements of Amex or
another national exchange. Failure to maintain a market for our stock on Amex
or
another national exchange will likely have a negative impact upon the trading
price of our stock.
RISKS
RELATED TO OUR BUSINESS
We
will not be able to meet our cash requirements beyond the next 10 months without
obtaining additional capital from external sources, and if we are unable to
do
so, we may not be able to continue as a going concern.
As
a
result of our recent financings with Oppenheimer & Co. and Cornell Capital,
our cash and cash equivalent balances, anticipated cash flows from operations
and other external sources of available credit should be sufficient to meet
our
cash requirements through September 30 2007. In order for us to continue as
a
going concern beyond this point, we will be required to obtain capital from
external sources. If external financing sources are not available or are
inadequate to fund our operations, it could result in reduced revenues and
cash
flows from the sales of our CustomArray products and services and/or could
jeopardize our ability to launch, market and sell additional products and
services necessary to grow and sustain our operations in order to eventually
achieve profitability. As a result of the above, the audit opinion on our
consolidated financial statements for the year ending December 31, 2005 includes
an emphasis of a matter paragraph regarding our ability to continue as a going
concern as described in footnote 16 to the consolidated financial statements
included in this prospectus. You should review the additional information about
our liquidity and capital resources in the Management’s Discussion and Analysis
of Financial Condition and Results of Operations section of this registration
statement.
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 consolidated
accumulated net losses as of December 31, 2005 and September 30, 2006, of $124.6
million and $140.1 million, respectively. 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 losses for the foreseeable future.
Our
consolidated cash and cash equivalents along with short-term investments totaled
$20.3 million and $8.8 million at December 31, 2005 and September 30, 2006,
respectively.
To
date,
we have relied primarily upon selling equity securities, as well as payments
from strategic partners, to generate the funds needed to finance the
implementation of our business strategies. We cannot assure you that we will
not
encounter unforeseen difficulties, including the outside influences identified
above that may deplete our capital resources more rapidly than anticipated.
As a
result, 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. 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.
The
recent decline in AR-CombiMatrix stock price could result in a goodwill
impairment for CombiMatrix Corporation.
Due
to
the recent decline in the AR-CombiMatrix stock, our market value as indicated
by
the trading of AR-CombiMatrix stock has approximated our book value at times
during the fourth quarter of 2006, though currently exceeds our book value
by
approximately $13 million as of the date of this prospectus filing. Should
the
AR-CombiMatrix stock or the value of our common stock following the redemption
continue to decline below our book value and if management concludes that the
decline is other than temporary, our goodwill in the amount of $16.9 million
as
of September 30, 2006, could be impaired.
Because
our business operations are subject to many uncontrollable outside influences,
we may not succeed.
Our
business operations are subject to numerous risks from outside influences,
including the following:
|
·
|
Technological
advances may make our semiconductor based array technology obsolete
or
less competitive, and as a result, our revenue and the value of our
assets
could become obsolete or less
competitive.
|
Our
products and services are dependent upon our semiconductor based array
technology. The semiconductor based array technology is an advancement in
conventional arrays that are used for the same purpose. Current array
technologies have revolutionized drug discovery and development, and we believe
that our array technology provides characteristics, including flexibility,
superior cost metrics, and performance, which address certain needs of the
life
sciences market which are not addressed by conventional arrays and offers the
latest in technological advances in this area. Our products and services are
substantially dependent upon our ability to offer the latest in semiconductor
based array technology in the SNP genotyping, gene expression profiling and
proteomic markets. We believe technological advances of conventional arrays
and
semiconductor based arrays are currently being developed by our existing
competition and potential new competitors in the market, including Affymetrix,
Inc., Agilent Technologies, Inc., Applera Corporation, Becton, Dickinson and
Company, Ciphergen Biosystems, Inc., Gene Logic Inc., Illumina, Inc., Johnson
& Johnson, Nanogen, Inc., Orchid Biosciences, Inc., Roche Diagnostics GmbH
and Sequenom, Inc. We also expect to face additional competition from new market
entrants and consolidation of our existing competitors. Many of our competitors
have existing strategic relationships with major pharmaceutical and
biotechnology companies, greater commercial experience and substantially greater
financial and personnel resources than we do. We expect new competitors to
emerge and the intensity of competition to increase in the future. If these
companies are able to offer technological advances to conventional arrays or
semiconductor-based arrays, our products may become less valuable or even
obsolete. While we continue to invest resources in research and development
to
enhance the technology of our products and services, we cannot provide any
assurance that our competitors or new competitors will not enter the market
with
the same or similar technological advances before we are able to do
so.
|
·
|
New
environmental regulation may materially increase the net losses of
our
business.
|
Our
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. Any changes in these laws and regulations could increase
our compliance costs, and as a result, could materially increase our net
losses.
|
·
|
Our
technologies face uncertain market
value.
|
Our
business includes the following technologies and products, some of which were
recently introduced into the market: CustomArray™, DNA Microarray, 12K DNA
expression array and related products, Design-on-Demand™ Arrays, NanoArray™
technology and our Bench-Top DNA Microarray Synthesizer for CustomArray™. These
technologies and products have not gained widespread market acceptance, and
we
cannot provide any assurance that the increase, if any, in market acceptance
of
these technologies and products will meet or exceed our
expectations.
Further,
we are currently developing the following technologies and products, some of
which have not yet been introduced into the market: (a) microarray technology
for the detection of biological threat agents, (b) molecular diagnostics drug
discovery and development using the CustomArray platform, and (c) additional
products for the research and development and diagnostics markets including
higher density arrays. The level of market acceptance of these technologies
and
products will have a significant impact upon our results of operations, and
we
cannot provide any assurance that the increase, if any, in market acceptance
of
these technologies and products will meet or exceed our expectations
.
|
·
|
The
foregoing outside influences may affect other risk factors described
in
this prospectus
|
Any
one
of the foregoing outside influences may cause our company to need additional
financing to meet the challenges presented or to compensate for a loss in
revenue, and we may not be able to obtain the needed financing. Further, any
one
of the foregoing outside influences affecting our business could make it less
likely that we will be able to gain acceptance of our array technology by
researchers in the pharmaceutical, biotechnology and academic communities.
See
the heading "If our new and unproven technology is not used by researchers
in
the pharmaceutical, biotechnology and academic communities, our business will
suffer" beginning on page 10 of this prospectus.
We
must enter into new strategic partnerships to generate revenue consistent with
our operating history of working with strategic partners such as Roche
Diagnostics GmbH.
In
March
2004, we completed all phases of our research and development agreement with
Roche Diagnostics GmbH ("
Roche
").
As a
result of completing all of our obligations under this agreement and in
accordance with our revenue recognition policies for multiple-element
arrangements, we recognized all previously deferred Roche related contract
revenues totaling $17,302,000 during the first quarter of 2004.
To
date,
we have relied primarily upon selling equity securities, as well as payments
from strategic partners, to generate the funds needed to finance the
implementation of our business strategies. Prior to 2004
,
we had
been dependent on our arrangements with Roche and relied upon payments by Roche
and other partners for a majority of our working capital needs. We intend to
enter into additional strategic partnerships to develop and commercialize future
products. We are deploying unproven technologies and continue to develop our
commercial products. There can be no assurance that we will be able to implement
our future plans. Our failure to achieve our plans would have a material adverse
effect on our ability to achieve our intended business objectives.
We
may fail to meet market expectations because of fluctuations in our quarterly
operating results, which could cause our stock price to
decline.
Our
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 our revenues could fall below the expectations of
securities analysts or investors, which could cause the market price of our
stock to decline. The following are among the factors that could cause our
operating results to fluctuate significantly from period to period:
|
·
|
our
unpredictable revenue sources, as described
below;
|
|
·
|
the
nature, pricing and timing of our and our competitors’
products;
|
|
·
|
changes
in our and our competitors’ research and development
budgets;
|
|
·
|
expenses
related to, and our ability to comply with, governmental regulations
of
our products and processes; and
|
|
·
|
expenses
related to, and the results of, patent filings and other proceedings
relating to intellectual property
rights.
|
We
anticipate significant fixed expenses due in part to our need to continue to
invest in product development. We may be unable to adjust our expenditures
if
revenues in a particular period fail to meet our expectations, which would
harm
our operating results for that period. As a result of these fluctuations, we
believe that period-to-period comparisons of our financial results will not
necessarily be meaningful, and you should not rely on these comparisons as
an
indication of our future performance.
Our
revenues will be unpredictable, and this may harm our financial
condition.
The
amount and timing of revenues that we may realize from our business will be
unpredictable because:
|
·
|
whether
our products and services are commercialized and generate revenues
depends, in part, on the efforts and timing of our potential customers;
and
|
|
·
|
our
sales cycles may be lengthy.
|
As
a
result, our revenues may vary significantly from quarter to quarter, which
could
make our business difficult to manage and cause our quarterly results to be
below market expectations. If this happens, the price of our common stock may
decline significantly.
Technology
company stock prices are especially volatile, and this volatility may depress
the price of our 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. In addition, our stock has historically experienced greater
price fluctuations than the biotechnology index of other Nasdaq listed stock.
We
believe that various factors may cause the market price of our stock to
fluctuate, perhaps substantially, including, among others, announcements
of:
|
·
|
our
or our competitors’ technological
innovations;
|
|
·
|
developments
or disputes concerning patents or proprietary
rights;
|
|
·
|
supply,
manufacturing or distribution disruptions or other similar
problems;
|
|
·
|
proposed
laws regulating participants in the biotechnology
industry;
|
|
·
|
developments
in relationships with collaborative partners or
customers;
|
|
·
|
our
failure to meet or exceed securities analysts’ expectations of our
financial results; or
|
|
·
|
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 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 our
business.
We
are deploying new and unproven technologies, which makes evaluation of our
business and prospects difficult, and we may be forced to cease operations
if we
do not develop commercially successful products.
We
have
not proven our ability to commercialize products on a large scale. In order
to
successfully commercialize products on a large scale, we 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 our ability to develop
and commercialize our products. For example, our products may be found to be
ineffective, unreliable or otherwise unsatisfactory to potential customers.
We
may experience unforeseen technical complications in the processes we use to
develop, manufacture, customize or receive orders for our products. These
complications could materially delay or limit the use of products we attempt
to
commercialize, substantially increase the anticipated cost of our products
or
prevent us from implementing our processes at appropriate quality and scale
levels, thereby causing our business to suffer.
We
may need to raise additional capital in the future, and if additional capital
is
not available on acceptable terms, we may have to curtail or cease
operations.
Our
future capital requirements will be substantial and will depend on many factors
including how quickly we commercialize our products, the progress and scope
of
our 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 our available capital resources to be
consumed significantly sooner than we expect.
We
may be
unable to raise sufficient additional capital on favorable terms or at all.
If
we fail to do so, we may have to curtail or cease operations or enter into
agreements requiring us to relinquish rights to certain technologies, products
or markets because we will not have the capital necessary to exploit
them.
If
we do not enter into successful partnerships and collaborations with other
companies, we may not be able to fully develop our technologies or products,
and
our business would be harmed.
Since
we
do not possess all of the resources necessary to develop and commercialize
products that may result from our technologies on a mass scale, we will need
either to grow our sales, marketing and support group or make appropriate
arrangements with strategic partners to market, sell and support our products.
We believe that we will have to enter into additional strategic partnerships
to
develop and commercialize future products. If we do not enter into adequate
agreements, or if our existing arrangements or future agreements are not
successful, our ability to develop and commercialize products will be impacted
negatively, and our revenues will be adversely affected.
We
have limited experience commercially manufacturing, marketing or selling any
of
our potential products, and unless we develop these capabilities, we may not
be
successful.
Even
if
we are able to develop our products for commercial release on a large-scale,
we
have limited experience in manufacturing our products in the volumes that will
be necessary for us to achieve commercial sales and in marketing or selling
our
products to potential customers. We cannot assure you that we will be able
to
commercially produce our products on a timely basis, in sufficient quantities
or
on commercially reasonable terms.
We
face intense competition, and we cannot assure you that we will be successful
competing in the market.
We
expect
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. We are also aware
of
other biotechnology companies that have or are developing testing technologies
for the SNP genotyping, gene expression profiling and proteomic markets. We
anticipate that we will face increased competition in the future as new
companies enter the market with new technologies and our competitors improve
their current products.
The
markets for our products are characterized by rapidly changing technology,
evolving industry standards, changes in customer needs, emerging competition
and
new product introductions. One or more of our competitors may offer technology
superior to ours and render our technology obsolete or uneconomical. Many of
our
competitors have greater financial and personnel resources and more experience
in marketing, sales and research and development than we have. Some of our
competitors currently offer arrays with greater density than we do and have
rights to intellectual property, such as genomic information or proprietary
technology, which provides them with a competitive advantage. If we were not
able to compete successfully, our business and financial condition would be
materially harmed.
If
our new and unproven technology is not used by researchers in the
pharmaceutical, biotechnology and academic communities, our business will
suffer.
Our
products may not gain market acceptance. In that event, it is unlikely that
our
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, our
technologies are new and unproven. In order to be successful, our products
must
meet the commercial requirements of the biotechnology, pharmaceutical and
academic communities as tools for the large-scale analysis of genetic variation
and function. Market acceptance will depend on many factors,
including:
|
·
|
the
development of a market for our tools for the analysis of genetic
variation and function, the study of proteins and other
purposes;
|
|
·
|
the
benefits and cost-effectiveness of our products relative to others
available in the market;
|
|
·
|
our
ability to manufacture products in sufficient quantities with acceptable
quality and reliability and at an acceptable
cost;
|
|
·
|
our
ability to develop and market additional products and enhancements
to
existing products that are responsive to the changing needs of our
customers;
|
|
·
|
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
|
|
·
|
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 our product and services packages unless customers
purchase or license our 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 our potential customers, our business will
not
succeed.
We
are
designing our technology primarily for applications in the biotechnology,
pharmaceutical and academic communities. The usefulness of our technology
depends in part upon the availability of genomic data. We are initially focusing
on markets for analysis of genetic variation and function, namely gene
expression profiling. These markets are new and emerging, and they may not
develop as we anticipate, 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 our customers or if our target markets do not emerge in a timely manner,
or at all, demand for our products will not develop as we expect, and we may
never become profitable.
Our
future success depends on the continued service of our engineering, technical
and key management personnel and our ability to identify, hire and retain
additional engineering, technical and key management
personnel.
There
is
intense competition for qualified personnel in our 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 our business
and operating results. We may not be able to continue to attract and retain
engineers or other qualified personnel necessary for the development of our
products and business or to replace engineers or other qualified personnel
who
may leave the group in the future. Our anticipated growth is expected to place
increased demands on our resources and likely will require the addition of
new
management personnel.
The
expansion of our product lines may subject us to regulation by the United States
Food and Drug Administration and foreign regulatory authorities, which could
prevent or delay our introduction of new products.
If
we
manufacture, market or sell 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 we manufacture, market or sell
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 our success will depend upon commercial sales of improved versions
of products, certain of which cannot be marketed in the United States and other
regulated markets unless and until we obtain clearance or approval from the
FDA
and our foreign counterparts, as the case may be. Delays or failures in
receiving these approvals may limit our ability to benefit from our new
products.
As
our operations expand, our costs to comply with environmental laws and
regulations will increase, and failure to comply with these laws and regulations
could harm our financial results.
Our
operations involve the use, transportation, storage and disposal of hazardous
substances, and as a result we are subject to environmental and health and
safety laws and regulations. As we expand our operations, our 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, our failure to comply with laws
and regulations, and any releases of hazardous substances into the environment
or at our disposal sites, could expose our 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 our operations. These types of events, if they
occur, would adversely impact our financial results.
Our
business depends on issued and pending patents, and the loss of any patents
or
our failure to secure the issuance of patents covering elements of our business
processes would materially harm our business and financial
condition.
Our
success depends on our ability to protect and exploit our intellectual property.
We currently have five patents issued in the United States, three patents issued
in Europe and 87 patent applications pending in the United States, Europe and
elsewhere. The patents covering our core technology begin to expire January
5,
2018.
The
patent application process before the United States Patent and Trademark Office
and other similar agencies in other countries is initially confidential in
nature. Patent Applications that are filed outside the United States, however,
are published approximately eighteen months after filing. Similarly, patent
applications that are filed in the United States will be published approximately
eighteen months after filing unless the applicant has opted out of publication
and will not file any foreign applications on the same invention. Due to the
confidential nature of the patent application process, we cannot determine
in a
timely manner whether patent applications covering technology that competes
with
our 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.
Considering our patent applications and those of others, some of our 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 court. In contrast,
in
foreign jurisdictions, the first to file on the invention will generally prevail
on a priority contest. If we are unsuccessful in these invention ownership
proceedings, we could be blocked from further developing, commercializing or
selling products that fall under the scope of the claims of the patents that
issue to others. Regardless of the ultimate outcome, this ownership
determination process can be time-consuming and expensive.
Any
inability to adequately protect our proprietary technologies could materially
harm our competitive position and financial results.
If
we do
not protect our intellectual property adequately, competitors may be able to
use
our technologies and erode any competitive advantage that we 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 laws, rules and/or methods for
defending intellectual property rights.
The
patent positions of companies developing tools for the biotechnology,
pharmaceutical and academic communities, including our patent position,
generally are uncertain and involve complex legal and factual questions. We
will
be able to protect our proprietary rights from unauthorized use by third parties
only to the extent that our proprietary technologies are covered by valid and
enforceable patents or are effectively maintained as trade secrets. Our existing
patents and any future issued or granted patents we obtain may not be
sufficiently broad in scope to prevent others from practicing our technologies
or from developing competing products. There also is a risk that others may
independently develop similar or alternative technologies or design around
our
patented technologies. In addition, others may cause reexamination of our
patents in the United States or may oppose our patents in Europe, either of
which may result in narrower patent claims or cancellation of some or all of
the
patent claims, or invalidate our patents during enforcement proceedings, or
our
patents may fail to provide us with any competitive advantage. Enforcing our
intellectual property rights may be difficult, costly and time-consuming and
ultimately may not be successful.
We
also
rely upon trade secret protection of our confidential and proprietary
information. While we have taken security measures to protect our proprietary
information, these measures may not provide adequate protection for our trade
secrets or other proprietary information. We seek to protect our proprietary
information by entering into confidentiality and invention disclosure and
transfer agreements with employees, collaborators and consultants. Nevertheless,
employees, collaborators or consultants still may disclose our proprietary
information, and we may not be able to meaningfully protect our trade secrets.
In addition, others may independently develop substantially equivalent
proprietary information or techniques or otherwise gain access to our trade
secrets.
Any
litigation to protect our intellectual property, or any third-party claims
of
infringement, could divert substantial time and money from our business and
could shut down some of our operations.
Our
commercial success depends in part on our non-infringement of the patents or
proprietary rights of third parties. Many companies developing technology 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 we are employing their proprietary
technology without authorization. In addition, third parties may claim that
use
of our technologies infringes their current or future patents. The CombiMatrix
group could incur substantial costs and the attention of our management and
technical personnel could be diverted while defending ourselves against any
of
these claims. We may incur the same liabilities in enforcing our patents against
others. We have not made any provision in our financial plans for potential
intellectual property related litigation, and we may not be able to pursue
litigation as aggressively as competitors with substantially greater financial
resources.
If
parties making infringement claims against us are successful, they may be able
to obtain injunctive or other equitable relief, which effectively could block
our ability to further develop, commercialize and sell products, and could
result in the award of substantial damages against us. If we are unsuccessful
in
protecting and expanding the scope of our intellectual property rights, our
competitors may be able to develop, commercialize and sell products that compete
with us using similar technologies or obtain patents that could effectively
block our ability to further develop, commercialize and sell our products.
In
the event of a successful claim of infringement against us, we may be required
to pay substantial damages and either discontinue those aspects of our business
involving the technology upon which we infringed or obtain one or more licenses
from third parties. While we may license additional technology in the future,
we
may not be able to obtain these licenses at a reasonable cost, or at all. In
that event, we could encounter delays in product introductions while we attempt
to develop alternative methods or products, and such attempts may not be
successful. Defense of any lawsuit or failure to obtain any of these licenses
could prevent us from commercializing available products.
A
former Vice President of CombiMatrix Corporation has filed a complaint against
the company with the U.S. Department of Labor alleging that he was wrongfully
terminated.
A
former
Vice President of CombiMatrix Corporation, following his termination of
employment, filed a complaint with the U.S. Department of Labor alleging that
his employment was terminated out of fear the former employee would report
the
Company’s failure to disclose certain information to be disclosed to the public.
See the section titled “Legal Proceedings” on page
of
this
prospectus. This complaint was filed following a letter to the Board of
Directors of Acacia Research Corporation containing the same allegations.
Following an internal investigation in conjunction with Acacia’s outside
counsel, neither Acacia’s Audit Committee nor outside counsel was able to verify
any of the allegations made by the former employee. Nonetheless, in an abundance
of caution, the Audit Committee engaged an independent counsel to conduct an
investigation of the allegations. The independent counsel found no merit to
the
allegations. Management does not believe the allegations have any merit, nor
does management believe the resolution of this matter will have any material
affect upon the financial statements or other information included in this
prospectus.
Because
we have a limited operating history selling products and services, we cannot
assure that our operations will be profitable.
We
commenced operations in 1996 and began commercialization of our CustomArray
platform in 2004 and accordingly, have a limited operating history generating
revenues from products and services. In addition, we are still developing our
product and service offerings and 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.
We
have
sustained substantial losses since our inception. 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.
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.
Our
future success depends on our ability to expand our organization to match the
growth of our subsidiaries.
As
our
subsidiaries grow, the administrative demands upon our management will grow,
and
our success will depend upon our ability to meet those demands. These demands
include increased accounting, management, legal services, staff support for
our
board of directors, and general office services. We may need to hire additional
qualified personnel to meet these demands, the cost and quality of which is
dependent in part upon market factors outside of our control. Further, we will
need to effectively manage the training and growth of our staff to maintain
an
efficient and effective workforce, and our failure to do so could adversely
affect our business and operating results.
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 our company 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 CombiMatrix 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 our company by means of a tender offer, proxy
contest or otherwise, and the removal of incumbent officers and directors.
These
provisions are discussed fully in the section titled "Delaware Anti-takeover
Law
and Provisions of Our Restated Certificate of Incorporation and Amended and
Restated Bylaws" beginning on page
,
incorporated herein by reference. 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.
THE
SPLIT OFF
GENERAL
Under
the
terms of Acacia’s charter, the Acacia board of directors may redeem, on a pro
rata basis, all of the outstanding shares of Acacia’s AR-CombiMatrix stock for
all of the outstanding shares owned by Acacia of one or more subsidiaries that
hold all of the assets and liabilities attributed to Acacia’s CombiMatrix group
(and hold no other material assets or liabilities). Acacia elected to exercise
the right under its charter to redeem all outstanding shares of AR-CombiMatrix
stock for shares of CombiMatrix Corporation common stock.
THE
REDEMPTION; EXCHANGE RATIO
The
redemption date is scheduled to occur at 9:00 a.m., New York City time, on
*. On
the redemption date, each share of AR-CombiMatrix stock will be redeemed for
one
share of our common stock. NO VOTE IS REQUIRED OR SOUGHT IN CONNECTION WITH
THE
SPLIT OFF, AND HOLDERS OF AR-COMBIMATRIX STOCK HAVE NO APPRAISAL RIGHTS IN
CONNECTION WITH THE SPLIT OFF.
From
and
after the redemption date, all of your rights as a holder of AR-CombiMatrix
stock shall cease, except for the right, upon the surrender to the exchange
agent of your shares of AR-CombiMatrix stock, to receive shares of our common
stock of a corresponding series. We will deliver or make available to all
holders of AR-CombiMatrix stock, from and after the redemption date, a letter
of
transmittal with which to surrender their shares in the redemption in exchange
for shares of the appropriate series of our common stock.
In
addition, each option to purchase shares of AR-CombiMatrix stock, including
stock options issued and outstanding under employee stock incentive plans on
the
redemption date, will be converted into a similar option to purchase shares
of
our common stock. Each outstanding warrant to purchase shares of AR-CombiMatrix
stock will be converted into a similar warrant to purchase shares of our common
stock at the same exercise price.
We
will
bear one-half of the costs and expenses of distribution incurred by us as a
result of the split off, which we estimate will be $353,800. The other half
will
be borne by Acacia.
REASONS
FOR THE SPLIT OFF
On
January 9, 2006, Acacia announced that its board of directors had voted to
exercise Acacia’s right under its charter to split off its CombiMatrix group
subject to certain conditions. The business associated with the Acacia
Technologies group is significantly different than our business. The business
of
the Acacia Technologies group includes significant patent litigation that,
by
its nature, creates financial risks not otherwise associated with the
CombiMatrix group or our company following the redemption. The split off will
prevent those future risks from impacting our business.
RESULTS
OF THE SPLIT OFF
Upon
consummation of the split off, we will be an independent public company owning
and operating all of the businesses currently attributed to Acacia’s CombiMatrix
group. Immediately after the split off, we expect to have over * holders of
record of shares of our common stock and approximately 52,365,810 shares of
our
common stock outstanding, based upon the number of record holders and
outstanding shares of AR-CombiMatrix stock on December 15, 2006, and assuming
no
exercise of outstanding stock options or warrants. The actual number of shares
of our common stock to be distributed will be determined on the redemption
date.
For
information regarding options to purchase our common stock that will be
outstanding after the split off, see "
DESCRIPTION
OF CAPITAL STOCK
"
below.
REDEMPTION
PROCEDURE
Pursuant
to Acacia’s charter, from and after the redemption date, all rights of a holder
of shares of AR-CombiMatrix stock shall cease, except for the right to receive
shares of our common stock in exchange therefor. We will deliver to the holders
of record of shares of AR-CombiMatrix stock on the redemption date a letter
of
transmittal containing written instructions for exchanging their shares for
shares of our common stock. From and after the redemption date, letters of
transmittal will also be available from the exchange agent.
For
example, a holder of shares of AR-CombiMatrix stock that does not surrender
those shares for redemption following the redemption date shall not be entitled
to receive dividends or distributions paid on our common stock until he or
she
surrenders his or her shares of AR-CombiMatrix stock for redemption to the
exchange agent. From and after the redemption date, we will be entitled to
treat
outstanding shares of AR-CombiMatrix stock that have not been surrendered for
redemption as shares of our common stock for all relevant purposes.
SHARES
OF
AR-COMBIMATRIX STOCK MAY NOT BE SURRENDERED FOR REDEMPTION PRIOR TO THE
REDEMPTION DATE.
TRANSFER
TAXES
Holders
who surrender their shares in the redemption will not be obligated to pay any
transfer taxes in connection with the split off.
U.S.
FEDERAL INCOME TAX CONSEQUENCES OF THE SPLIT OFF
The
following discussion summarizes those U.S. federal income tax consequences
resulting from the split off that materially affect Acacia and the holders
of
AR-CombiMatrix stock. This discussion is based upon currently existing
provisions of the Code, existing and proposed Treasury Regulations thereunder
and current administrative rulings and court decisions, all of which are subject
to change. Any such change, which may or may not be retroactive, could alter
the
tax consequences to Acacia or the holders of AR-CombiMatrix stock as described
in this prospectus.
Holders
of AR-CombiMatrix stock should be aware that this discussion does not deal
with
all U.S. federal income tax considerations that may be relevant to particular
stockholders in light of their particular circumstances, such as stockholders
who are dealers in securities, banks, insurance companies, tax-exempt
organizations and non-United States persons. In addition, the following
discussion does not address the tax consequences of the split off under U.S.
state or local and non-U.S. tax laws or the tax consequences of transactions
effectuated prior to or after the split off (whether or not such transactions
are undertaken in connection with the split off).
ACCORDINGLY,
HOLDERS OF AR-COMBIMATRIX STOCK ARE URGED TO CONSULT THEIR OWN TAX ADVISORS
CONCERNING THE U.S. FEDERAL, STATE AND LOCAL AND NON-U.S. TAX CONSEQUENCES
OF
THE SPLIT OFF TO THEM.
Acacia
has received a private letter ruling from the IRS, in form and substance
reasonably satisfactory to us and Acacia, with regard to the U.S. federal income
tax consequences of the split off to the effect that the split off will be
treated as a tax-free exchange under Section 355 of the Code and that,
accordingly, for U.S. federal income tax purposes:
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no
gain or loss will be recognized by Acacia upon the exchange of our
common
stock for AR-CombiMatrix stock pursuant to the split
off;
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no
gain or loss will be recognized by, and no amount will be included
in the
income of, a holder of AR-CombiMatrix stock upon the receipt of our
common
stock in exchange for AR-CombiMatrix stock pursuant to the split
off;
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the
aggregate basis of our common stock in the hands of a former holder
of
AR-CombiMatrix stock will equal the aggregate basis of their shares
of
AR-CombiMatrix stock surrendered in exchange therefor;
and
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the
holding period of our common stock received in the split off will
include
the holding period of AR-CombiMatrix stock exchanged therefor, provided
that the shares of AR-CombiMatrix stock were held as a capital asset
on
the date of the split off.
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Although
the opinion may be relied upon by Acacia and our company, the continuing
validity and applicability of the opinion will be subject to factual
representations and assumptions, including the representation that
AR-CombiMatrix stock is stock of Acacia and not of CombiMatrix Corporation.
If
any such factual representations or assumptions are incorrect or untrue in
any
material respect, the ruling may be invalidated. We are not aware of any facts
or circumstances that would cause such representations and assumptions to be
incorrect or untrue in any material respect. Nevertheless, if Acacia consummates
the split off and the split off is held to be taxable, both Acacia and the
holders of AR-CombiMatrix stock would in all probability incur material tax
liabilities. Under the tax allocation agreement between Acacia and us, we may
be
required to indemnify Acacia for certain tax liabilities that would be
recognized by Acacia if the split off were taxable. Please see "Relationship
Between Acacia and Our Company After the Split Off " for a more detailed
discussion of the tax allocation agreement between Acacia and us.
Even
if
the split off otherwise qualifies for tax-free treatment under Section 355
of
the Code, it may be disqualified as tax-free to Acacia under Section 355(e)
of
the Code if 50% or more of either the total combined voting power or the total
fair market value of our stock or the stock of Acacia is acquired as part of
a
plan or series of related transactions that include the split off. For this
purpose, any acquisitions of our stock or Acacia’s stock within two years before
or after the split off are presumed to be part of such a plan, although Acacia
or we may be able to rebut that presumption. If such an acquisition of our
stock
or Acacia’s stock triggers the application of Section 355(e), Acacia would
recognize taxable gain, but the split off would generally be tax-free to each
former holder of AR-CombiMatrix stock. Under the tax allocation agreement
between Acacia and us, we may be required to indemnify Acacia for certain tax
liabilities that are triggered by an acquisition of our stock. Please see
"Relationship Between Acacia and Our Company After the Split Off" for a more
detailed discussion of the tax allocation agreement between Acacia and
us.
U.S.
Treasury regulations require each former holder of AR-CombiMatrix stock that
receives shares of CombiMatrix common stock in the split off to attach to the
stockholder’s U.S. Federal income tax return for the year in which such stock is
received a detailed statement setting forth such data as may be appropriate
to
show the applicability of Section 355 of the Code to the redemption. The
information necessary to comply with this requirement will be sent to holders
of
AR-CombiMatrix stock together with the letter of transmittal to be used in
surrendering their shares.
LISTING
AND TRADING OF OUR COMMON STOCK
Although
there is a market for AR-CombiMatrix stock, there is currently no public market
for CombiMatrix Corporation’s common stock as we are currently a wholly owned
subsidiary of Acacia. We plan to apply to list our common stock on the American
Stock Exchange under the symbol "CBMX."
We
cannot
assure you as to the price at which our common stock will trade following the
redemption. The trading prices of our common stock after the split off may
be
less than, equal to or greater than the trading price of AR-CombiMatrix stock
prior to the split off.
Shares
of
our common stock issued in redemption of AR-CombiMatrix stock will be freely
transferable, except for shares received by people who may have a special
relationship or affiliation with us. People who may be considered our affiliates
after the split off generally include individuals or entities that control,
are
controlled by, or are under common control with us. This may include some or
all
of our officers and directors. Persons who are our affiliates will be permitted
to sell their shares only pursuant to an effective registration statement under
the Securities Act of 1933, as amended, or an exemption from the registration
requirements of the Securities Act, such as exemptions afforded by Section
4(2)
of the Securities Act or Rule 144 thereunder.
DESCRIPTION
OF CAPITAL STOCK
DESCRIPTION
OF CAPITAL STOCK
The
following description of our capital stock and the provisions of our restated
certificate of incorporation and amended and restated bylaws is a summary.
Statements contained elsewhere in this prospectus relating to these provisions
are not necessarily complete. We refer you to the restated certificate of
incorporation and amended and restated bylaws that we have filed with the SEC
as
exhibits to our registration statement, of which this prospectus is a
part.
Our
authorized capital stock consists of 180,000,000 shares of common stock, $0.001
par value, and 30,000,000 shares of preferred stock, $0.001 par
value.
COMMON
STOCK
As
of
December 15, 2006, there were 100 shares of common stock outstanding and held
by
one stockholder of record. As of the redemption date, we expect 52,365,810
shares of our common stock to be issued and outstanding, held by * stockholders
of record, based upon the number of shares of AR-CombiMatrix common stock issued
and outstanding and assuming no exercise of outstanding options, warrants or
other derivative securities.
The
holders of our common stock are entitled to one vote for each share held of
record on all matters submitted to a vote of the stockholders, including the
election of directors, and do not have cumulative voting rights. Accordingly,
the holders of a majority of the shares of common stock entitled to vote in
any
election of directors can elect all of the directors standing for election,
if
they so choose. Subject to preferences that may be applicable to any then
outstanding preferred stock, holders of common stock are entitled to receive
ratably such dividends, if any, as may be declared by the board of directors
out
of funds legally available for that purpose. See "Market price of and dividends
on common equity and related stockholder matters." Upon our liquidation,
dissolution or winding up, the holders of common stock will be entitled to
share
ratably in the net assets legally available for distribution to stockholders
after the payment of all of our debts and other liabilities, subject to the
prior rights of any preferred stock then outstanding. Following completion
of
this offering, no holder of common stock will have any preemptive or conversion
right or other subscription right, and there are no redemption or sinking funds
provisions applicable to the common stock. All outstanding shares of common
stock are, and the common stock to be outstanding upon completion of this
offering will be, fully paid and nonassessable.
PREFERRED
STOCK
Currently
there are no shares of our preferred stock outstanding. The board of directors
has the authority, without further action by the stockholders, to issue from
time to time preferred stock in one or more series and to fix the number of
shares, designations, preferences, powers, and relative, participating, optional
or other special rights and the qualifications or restrictions of our preferred
stock. The preferences, powers, rights and restrictions of different series
of
preferred stock may differ with respect to dividend rates, amounts payable
on
liquidation, voting rights, conversion rights, redemption provisions, sinking
fund provisions, and purchase funds and other matters. The issuance of preferred
stock could decrease the amount of earnings and assets available for
distribution to holders of common stock or affect adversely the rights and
powers, including voting rights, of the holders of common stock, and may have
the effect of delaying, deferring or preventing a change in control of
us.
WARRANTS
As
of
December 15, 2006, there were outstanding warrants entitling their holders
to
purchase an aggregate of 13,601,863 shares of AR-CombiMatrix common stock at
a
weighted average exercise price of $1.09 per share. Each such warrant shall,
as
of the redemption date, entitle each holder thereof to purchase the same number
of shares of our common stock at the same exercise price currently contained
in
each such warrant.
REGISTRATION
RIGHTS
None
of
our stockholders has a contractual right to require us to register any of its
shares of common stock for sale under the Securities Act of 1933.
DELAWARE
ANTI-TAKEOVER LAW AND PROVISIONS OF OUR RESTATED CERTIFICATE OF INCORPORATION
AND AMENDED AND RESTATED BYLAWS
Provisions
of Delaware law, our restated certificate of incorporation and our amended
and
restated bylaws could make more difficult the acquisition of our company by
a
third party and the removal of our incumbent officers and directors. These
provisions, summarized below, are expected to discourage coercive takeover
practices and inadequate takeover bids and to encourage persons seeking to
acquire control of our company to first negotiate with us. We believe that
the
benefits of increased protection of our ability to negotiate with the proponent
of an unfriendly or unsolicited acquisition proposal outweigh the disadvantages
of discouraging these proposals because, among other things, negotiation could
result in an improvement of their terms.
Delaware
Takeover Statute
We
are
subject to Section 203 of Delaware Law, which regulates corporate acquisitions.
In general, Section 203 prohibits a publicly held Delaware corporation from
engaging in a business combination with an interested stockholder for a period
of three years following the date the person became an interested stockholder,
unless:
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the
board of directors approved the transaction in which the stockholder
became an interested stockholder prior to the date the interested
stockholder attained such status;
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upon
consummation of the transaction that resulted in the stockholder
becoming
an interested stockholder, he or she owned at least 85% of the voting
stock of the corporation outstanding at the time the transaction
commenced, excluding shares owned by persons who are directors and
also
officers; or
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on
or subsequent to the date the person became an interested stockholder
the
business combination is approved by the board of directors and authorized
at an annual or special stockholders meeting by the affirmative vote
of
the holders of at least two-thirds of our outstanding voting stock
not
owned by the interested
stockholders.
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A
business combination generally includes a merger, asset or stock sale, or other
transaction resulting in a financial benefit to the interested stockholder.
In
general, an interested stockholder is a person who, together with affiliates
and
associates, owns, or within three years prior to the determination of interested
stockholder status, did own, 15% or more of a corporation’s voting stock. We do
not believe Acacia is subject to the provisions of Section 203 because it has
owned more than 15% of our common stock for more than three years.
Certificate
of Incorporation and Bylaw Provisions
Provisions
of our amended and restated certificate of incorporation or our amended and
restated bylaws may have the effect of making it more difficult for a third
party to acquire, or discourage a third party from attempting to acquire,
control of our company by means of a tender offer, a proxy contest or otherwise.
These provisions may also make the removal of incumbent officers and directors
more difficult. These provisions are intended to discourage certain types of
coercive takeover practices and inadequate takeover bids and to encourage
persons seeking to acquire control of us to first negotiate with our board
of
directors. These provisions could also limit the price that investors might
be
willing to pay in the future for shares of our common stock. These provisions
may make it more difficult for stockholders to take specific corporate actions
and could have the effect of delaying or preventing a change in our
control.
In
particular, our amended and restated certificate of incorporation and bylaws
provide for the following:
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Classified
Board of Directors
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Our
board
of directors is divided into three classes of the same or nearly the same number
of directors, each serving staggered three-year terms, which means that only
one
class of directors may be elected at each annual meeting or special meeting
in
lieu of such annual meeting. These provisions may make the removal of incumbent
directors difficult and may discourage third parties from attempting to
circumvent the anti-takeover effects of our certificate of incorporation and
bylaws by removing our incumbent directors.
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No
Written Consent of
Stockholders
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Any
action to be taken by our stockholders must be effected at a duly called annual
or special meeting and may not be effected by written consent.
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Special
Meetings of Stockholders
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Special
meetings of our stockholders may be called only by the president, chief
executive officer, chairman of the board of directors or a majority of the
members of the board of directors.
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Advance
Notice Requirement
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Stockholder
proposals to be brought before an annual meeting of our stockholders must comply
with advance notice procedures. These advance notice procedures require timely
notice and apply in several situations, including stockholder proposals relating
to the nominations of persons for election to the board of
directors.
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Amendment
of Bylaws and Certificate of
Incorporation
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Our
Board
of Directors has the power to alter, amend or repeal our bylaws. The approval
of
not less that 66 2/3% of the outstanding shares of our capital stock entitled
to
vote is required to amend the provisions of our bylaws by stockholder action.
The approval of a majority of the outstanding shares entitled to vote is
required to amend the provisions of our amended and restated certificate of
incorporation. These provisions will make it more difficult to circumvent the
anti-takeover provisions of our certificate of incorporation and our
bylaws.
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Issuance
of Undesignated Preferred
Stock
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Our
board
of directors is authorized to issue, without further action by the stockholders,
up to 30,000,000 shares of undesignated preferred stock with rights and
preferences, including voting rights, designated from time to time by the board
of directors. The existence of authorized but unissued shares of preferred
stock
enables our board of directors to render more difficult or to discourage an
attempt to obtain control of us by means of a merger, tender offer, proxy
contest or otherwise.
INDEMNIFICATION
Our
amended and restated certificate of incorporation permits us to, and our amended
and restated bylaws provide that we will, indemnify our officers and directors
to the fullest extent permitted by Delaware law. We have entered into separate
indemnification agreements with our directors and executive officers that could
require us, among other things, to indemnify them against liabilities that
may
arise by reason of their status or service as directors and to advance their
expenses incurred as a result of any proceeding against them as to which they
could be indemnified. We believe that the limitation of liability provision
in
our amended and restated bylaws and the indemnification agreements will
facilitate our ability to continue to attract and retain qualified individuals
to serve as directors and officers of our company.
Our
amended and restated certificate of incorporation provides that our directors
will not be liable to us or our stockholders for monetary damages for breach
of
fiduciary duty as directors except to the extent that an exemption or limitation
of liability is not permitted under Delaware Law, as in effect from time to
time. Delaware Law currently provides that directors of a company will not
be
personally liable for monetary damages for breach of their fiduciary duty as
directors, except for liability:
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for
any breach of their duty of loyalty to us or our
stockholders;
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for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of
law;
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for
unlawful payment of dividend or unlawful stock repurchase or redemption,
as provided under Delaware Law; or
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for
any transaction from which the director derived an improper personal
benefit.
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Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers or persons controlling the registrant
pursuant to the foregoing provisions, the registrant has been informed that
in
the opinion of the Securities and Exchange Commission such indemnification
is
against public policy as expressed in the Act and is therefore
unenforceable.
DESCRIPTION
OF BUSINESS
OVERVIEW
We
are
seeking to become a broadly diversified biotechnology business, through the
development of proprietary technologies, products and services in the areas
of
drug development, genetic analysis, molecular diagnostics, nanotechnology
research, defense and homeland security markets, as well as other potential
markets where our products could be utilized. The technologies we have developed
include 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. This 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. Other technologies include proprietary molecular
synthesis and screening methods for the discovery of potential new
drugs.
Through
the year ended December 31, 2005, our life sciences business included our two
subsidiaries, CombiMatrix Molecular Diagnostics, Inc. and CombiMatrix K.K.
In
January of 2006, we sold 67% of our ownership interest in CombiMatrix K.K.
to a
third party, and we continue to retain a 33% ownership interest. CombiMatrix
K.K., is a Japanese corporation located in Tokyo, Japan, and has existed for
the
purposes of exploring opportunities for our array system with pharmaceutical
and
biotechnology companies in the Asian market. Based upon the annual financial
statements for the year ended December 31, 2005, this sale did not constitute
the sale of a "significant subsidiary" as that term is defined by the Commission
in Rule 1-02 of Regulation S-X. CombiMatrix Molecular Diagnostics, Inc., a
wholly owned subsidiary located in Irvine, California, is exploring
opportunities for our arrays in the field of molecular diagnostics.
BUSINESS
Technologies
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Semiconductor
Based Array
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Our
semiconductor based array technology enables the rapid, parallel synthesis,
immobilization and detection of molecules and materials at discrete electrodes
on a semiconductor chip. These chips, also known as microelectrode arrays,
are
used in multiple applications in the areas described above. Our technology
integrates semiconductor micro fabrication, proprietary software, chemistry
and
hardware into systems that we believe will enable us, our customers and our
partners to design and fabricate arrays for biological, diagnostic, material
sciences and nanotechnology applications, typically within a few days. Our
system should enable researchers to conduct rapid, iterative experiments in
each
of these fields.
Although
there are numerous applications of our arrays in life sciences research, each
depend on the synthesis, immobilization or detection of molecules at discrete
sites on the array. Some specific applications include studies of genetic
expression in cellular systems, genotyping and mutation analysis, synthesis
of
nucleic acid drugs, and others.
Utilizing
this array technology, we are engaged in four strategic business
areas:
1.
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The
development, manufacture and sale of research tools and services
to life
sciences researchers,
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2.
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The
development of services and products in the field of molecular
diagnostics,
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3.
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The
development, manufacture and sale of biosensor systems and technology
for
national defense and homeland security, and
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4.
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The
development of tools for applications in nanotechnology and materials
science.
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Method
for Electrochemical Synthesis of Potential Drug
Molecules
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In
addition to the semiconductor-based array, we are utilizing our expertise in
electrochemistry to synthesize novel compounds, which can be screened in binding
and cellular assays to determine their potential as new drugs. The types of
molecules that can be synthesized electrochemically from precursors using
various approaches, proprietary to our company, include organic compounds,
nucleic acids, peptides and others. These molecules can then be utilized in
biochemical and cellular screens to determine if they have appropriate potency
to be considered for downstream pre-clinical and clinical drug
development.
Utilizing
this technology, our overall business strategy is the discovery of compounds
that could be developed as clinical drug candidates, utilizing proprietary
synthesis and screening methodologies.
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Technologies
and Compound Libraries for Oncological Drug
Development
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Through
our minority ownership of Leuchemix, Inc., our company has access to proprietary
compounds that have been shown to be cytotoxic towards certain cancers in vitro
and in vivo. Many of these compounds were discovered through combinatorial
chemistry, natural product chemistry and certain cellular screening assays.
Leuchemix, Inc. has access to state of the art laboratories and equipment,
which
includes flow cytometry, molecular biology and cell culture facilities. In
addition, Leuchemix, Inc. has access to a bank of over 150 primary leukemia
specimens and a panel of 15 leukemia and lymphoma cell lines as well as several
xenogenic animal model systems. Leuchemix also has licensed proprietary
compounds and compound libraries, which are being developed as drugs against
a
number of oncology indications including hematological disorders as well as
solid tumors.
MARKET
OVERVIEW
The
markets for our products include pharmaceutical and biotechnology markets (also
referred to as life sciences), molecular diagnostics, national defense and
homeland security applications and the emerging markets for nanotechnology
and
new materials. In the future, if we are successful in developing approved drugs
either internally or through our investments in companies such as Leuchemix,
Inc., our market opportunities will expand to include pharmacies, physicians,
hospitals, patients and other consumers of therapeutics. In addition, there
may
be opportunities for our products and services to address consumer-based genetic
analysis as that market develops. At this time, the majority of our commercial
efforts are focused on the life sciences, molecular diagnostics and national
defense markets.
General
Overview of Life Sciences
and
Pharmaceutical Industries
The
pharmaceutical and biotechnology industries continue to face increasing costs
and risks in the drug discovery, development and commercialization process.
According to industry statistics, the time required to commercialize a new
drug
can be 15 years and cost up to $1.7 billion. A primary component of the
cost is the effort expended on drugs that failed to meet clinical and regulatory
requirements due to a poor safety profile, efficacy in a small fraction of
the
patient population, or other similar reasons. The pharmaceutical and
biotechnology industries are working to improve their efficiency and reduce
the
risks of failure by turning to new technologies to help identify deficiencies
in
drug candidates as early as possible and to stratify patient populations during
clinical trials and post-approval. By identifying patients who are more likely
to respond favorably to a drug (and excluding those that will either not respond
or have an- adverse response), the potential market for the drug is decreased
but the chance of achieving regulatory approval is increased. Stratification
of
patient populations is performed by analysis of blood or tissue of patients
for
protein or genetic biomarkers or expression patterns that are characteristic
of
responders and non-responders. We feel that our technology and products are
ideally suited to aid in all segments of the drug discovery process and most
importantly in the stratification of patients during clinical trials. In
addition, CombiMatrix is developing approaches to utilize genetic information
of
individual patients to aid physicians in diagnosing disease and developing
the
best therapeutic approach to manage a patient’s disease.
Genes
and Proteins
The
human
body is composed of billions of cells each containing DNA that encodes the
basic
instructions for cellular function. The complete set of an individual’s DNA is
called the genome, and is organized into 23 pairs of chromosomes, which are
further divided into smaller regions called genes. Each gene is composed of
a
strand of four types of nucleotide bases, referred to as A, C, G and T. The
bases of one DNA strand bind to the bases of the other strand in a specific
fashion to form base pairs: the base A always binds with the base T and the
base
G always binds with the base C.
The
human
genome has approximately
3.0
billion nucleotides and their precise order is known as the DNA sequence. When
a
gene is turned on, or expressed
,
the
genetic information encoded in the DNA is copied to a specific type of RNA,
called messenger RNA, or mRNA. The mRNA provides instructions for the synthesis
of proteins. Proteins direct cellular function and the development of individual
traits and are involved in many diseases. Abnormal variations in the sequence
of
a gene or in the level of gene expression can interfere with the normal
physiology of particular cells and lead to a disease, a predisposition to a
disease or an adverse response to drugs.
Gene
Expression Profiling
Gene
expression profiling is the process of determining which genes are active in
a
specific cell or group of cells and is accomplished by measuring mRNA, the
intermediary between genes and proteins. By comparing gene expression patterns
between cells from normal tissue and cells from diseased tissue, researchers
may
identify specific genes or groups of genes that play a role in the presence
of
disease. Studies of this type, used in drug discovery, require monitoring
thousands, and preferably tens of thousands, of mRNAs in large numbers of
samples. As the correlation between gene expression patterns and specific
diseases is determined, we believe that gene expression profiling will have
an
increasingly important role as a diagnostic tool. Diagnostic use of expression
profiling tools is anticipated to grow rapidly with the combination of the
sequencing of various genomes and the availability of more cost-effective
technologies.
Genetic
Variation and Mutations
Genetic
variation is also due to polymorphisms (mutations) in genomes, although
functional variations may also arise from differences in the way genes are
expressed in a given cell, as well as the timing and levels of their
expression.
The
most
common form of genetic variation occurs as a result of a difference in a single
nucleotide in the DNA sequence, commonly referred to as a single nucleotide
polymorphism, or SNP. The human genome is estimated to contain between three
and
six million SNPs. By screening for polymorphisms, researchers seek to correlate
variability in the sequence of genes with a specific disease. SNPs are believed
to be associated with a large number of human diseases, although most SNPs
are
believed to be benign and not to be associated with disease. Determining which
SNPs may be related to a disease is a complex process requiring investigation
of
a vast number of SNPs. A SNP association study might require testing for 200,000
possible SNPs in 1,000 patients. Although only a few hundred of these SNPs
might
be clinically relevant, 200 million genotyping tests, or assays, might be
required to complete a study. Using currently available technologies, this
scale
of SNP genotyping is both impractical and prohibitively expensive.
While
in
some cases one SNP will be responsible for medically important effects, it
is
now believed that the genetic component of most major diseases is associated
with a combination of SNPs. As a result, the scientific community has recognized
the importance of investigating combinations of many SNPs in an attempt to
discover medically valuable information. In order to understand how genetic
variation causes disease, researchers must compare gene sequence polymorphisms,
or conduct SNP genotyping, from healthy and diseased individuals. Researchers
may also compare gene expression patterns, or perform gene expression profiling,
from healthy and diseased tissues.
Proteomics
Proteomics
is the process of determining which proteins are present in cells, how they
interact with one another and how they are correlated with genomic variation.
This process is useful in drug discovery and diagnostics because most drugs
target proteins that play a role in the existence or development of a
disease.
Current
Technologies
Despite
the recent sequencing of the human genome, scientists have a limited
understanding of the function of genes, how they interact with each other,
how
they modulate disease, and how they correlate with protein translation and
function. Additionally, the role of specific mutations is poorly
understood.
Traditional
technologies for analyzing genetic or protein variation and function generally
perform experiments individually, or serially, and often require relatively
large sample volumes, adding significantly to the cost of conducting
experiments. Arrays were developed to overcome the limitations of traditional
technologies and enable the parallel evaluation of large numbers of
genes.
An
array
is a collection of miniaturized test sites arranged in a manner that permits
many tests to be performed simultaneously, or in parallel, in order to achieve
higher throughput. The average size of test sites in an array and the spacing
between them defines the array’s density. Higher density increases parallel
processing throughput. In addition to increasing the throughput, higher density
reduces the required volume for the sample being tested, and thereby lowers
costs. Currently, the principal commercially available ways to produce arrays
include mechanical deposition, bead immobilization, inkjet printing and
photolithography.
While
current array technologies have revolutionized drug discovery and development,
we believe that our advanced array technology provides characteristics,
including flexibility, superior cost metrics, and performance which address
certain needs of the life sciences market which are not addressed by
conventional arrays. Also, our DNA array synthesizer technology enables
customers of this technology the ability to manufacture arrays at their
laboratory facilities without having to order the arrays from our company,
thereby maintaining the proprietary nature of their unique array designs and
experiments. This array synthesizer enables many applications that are unique
in
the market place.
THE
COMBIMATRIX SOLUTION
We
believe that our system will have advantages over other existing technologies
because it is being designed to be a cost-effective, fast, flexible,
customizable alternative to existing analytical tools designed for similar
purposes. Researchers using our system should be able to design and order custom
arrays, conduct their tests, analyze the results, and reorder additional arrays
incorporating modified test parameters, all within a few days.
We
believe that our system will offer several important advantages over competing
products. These advantages arise from a unique approach to fabricating the
arrays utilizing a proprietary electrochemical synthesis method on an array
of
microelectrodes that have been fabricated on a silicon device.
Products
and Services
Our
technology represents a significant advance over existing array technologies
and
other platforms for combinatorial chemistry. The first applications of the
technology that we are pursuing are in the field of genomics and molecular
diagnostics, where we have developed an array for the analysis of DNA. We
believe that this technology may be applied to the fields of genetic analysis
and disease management.
Our
product for genetic studies is marketed under the trade name CustomArray, which
is a highly flexible custom oligonucleotide array that addresses researchers’
specific requirements for high-performance arrays that can interrogate small
sets of target genes or whole genomes at a low cost. CustomArrays currently
come
in two formats: the medium-density CustomArray 12K and the 4 X 2K CustomArray.
The CustomArray 12K enables analysis of up to 12,000 genes, whereas the 4 X
2K
array enables the analysis of four separate experiments of up to 2,000 genes
each.
CustomArray
is an advanced tool used to understand gene expression by measuring mRNA
activity within a cell type or groups of cells, enabling researchers to
understand disease, predisposition to disease, drug response and drug
development. CustomArray can also be used as a SNP genotyping tool providing
statistics on the effect of a SNP or groups of SNPs, giving rise to data that
is
important in diagnostic testing. Because of the product’s flexibility,
researchers have utilized and are evaluating the use of CustomArrays for other
applications such as gene assembly, sequencing, protein translation and others.
CustomArrays can also be read on most commercially available scanners, thus
enabling many researchers to perform assays without requiring additional capital
expenditures for scanning equipment that several competing technologies
require.
|
·
|
On-Line
Order Processing and Software
Tools
|
CustomArrays
can be designed and ordered through our on-line ordering process. Customers
are
able to utilize a number of tools to design and order their arrays through
an
on-line interface via the World Wide Web. Some of the tools available to the
customers are referred to as the CustomArray content software application suite
of tools for designing and ordering arrays.
The
content software application provides a suite of sophisticated tools that
customers can use to design a custom array specific to their experimental needs.
This application allows the customer to submit a list of genes and/or genomic
sequences to our probe design system. This design process produces probe
sequences optimal to the customer’s requirements. Customers also have the
flexibility to re-design their array at anytime.
When
the
customer has finished designing their arrays using our proprietary software
tools, the arrays may be ordered using the e-commerce section of the CustomArray
web site. Arrays are then manufactured using our proprietary oligonucleotide
synthesis technology to the specific design requirements of the customer’s
order. Our proprietary DNA synthesis technology enables product turnaround
time
of typically just a few days. After production, each array is put through a
rigorous quality control process. To our knowledge, we are the only array
company that quality checks every single feature on each array produced prior
to
shipment.
We
have
also launched a service known as Design-on-Demand™ for our CombiMatrix arrays.
Through this service, customers can work one-on-one with our staff of
bioinformatic experts to assist them with designing their arrays to meet their
specific project goals. Customers can also access our Design-on-Demand™ catalog
of over 1,400 pre-designed genome arrays available for ordering.
We
have
also launched several dozen CatalogArrays, which are pre-designed arrays built
using our platform that can be used for gene expression studies, mutation
analysis, and other studies. These arrays include several human genome sets,
mouse, rat, dog and several other organisms including plants, animals, bacteria
and viruses. These arrays are updated as new genetic or sequence information
is
published. In addition, similar to CustomArrays, our CatalogArrays can be read
on most commercially available scanners and do not require additional capital
investment or start-up fees by the customer.
We
also
offer a series of arrays that can be used to study micro-RNA molecules, which
are relatively small strands of RNA molecules in cells that appear to have
significant regulatory control over cell function. Until recently, micro-RNA
molecules were thought to be oddities and perhaps superfluous genetic material.
However, recent research indicates that these molecules play a significant
role
in the physiology of the cell. We offer Micro-RNA arrays for human, mouse,
rat
and other organisms. These arrays are updated as new information is published.
In addition, similar to CustomArrays, our Micro-RNA Arrays can be read on most
commercially available scanners and do not require additional capital investment
or start-up fees by the customer.
Our
DNA
Array Synthesizer is a bench-top instrument that enables researchers to
fabricate DNA arrays to their exact specifications with complete control over
the content that is synthesized onto the array. The system consists of a
synthesizer instrument that is operated by a personal computer that is connected
to a cabinet that contains reagents necessary for array synthesis. The system
is
able to fabricate up to eight, 12K arrays within a 24-hour period, or up to
thirty-two, 2K sectored arrays in the same period of time. The synthesizer’s
flexibility enables researchers to synthesize multiple designs or the same
design in each synthesis run. To operate the synthesizers, researchers must
purchase blank array slides (slides on which no DNA synthesis has been
performed) from us and reagents from either us or other vendors.
We
have
created the first commercially available array stripping kit. The kit allows
researchers to re-use our CustomArrays up to four times. The ability to re-use
CustomArray reduces the cost per CustomArray to the researcher while eliminating
problems associated with chip-to-chip reproducibility.
|
·
|
EC
Reader-Electrochemical Scanning
Instrument
|
The
EC
Reader is a compact scanner for CombiMatrix arrays. The EC Reader was developed
to provide the market with a compact, inexpensive and easy to use scanner for
performing array experiments. Current arrays, including those manufactured
by
us, are designed to be analyzed using optical scanning instruments. While these
scanners are quite functional, they are also relatively expensive bulky, and
can
be difficult to use. Due to the electrochemical nature of our arrays, it is
possible to scan them using an electrochemical scanner as well as an optical
scanner. The advantages of the electrochemical scanner include compact size,
more cost efficient, and easier to use. These advantages arise out of the fact
that the EC Reader does not have any optical components (such as lasers, lenses
and optical detectors). By eliminating these optical components, the EC Reader
is more compact, cost efficient and easier to use than most optical scanners.
The EC Reader is designed to read only CombiMatrix arrays.
APPLICATIONS
Pharmaceutical
and Life Sciences Research and Development Applications
To
date
our products have been used primarily for research and development applications
by academic and industrial researchers. Our products have and can be used for
such diverse applications as drug target discovery and validations, genotyping,
pathogen detection, agricultural analysis and others. In addition, our products
can be used to synthesize oligonucleotides that are then utilized in various
research applications. Due to the flexibility of our technologies, we expect
the
potential R&D applications of our products to continually
expand.
Molecular
Diagnostics Applications
In
addition to the life science research and development applications of our
products, we feel that our proprietary products can be utilized in the emerging
field of molecular diagnostics. The term "molecular diagnostics" refers to
the
analysis of nucleic acids, as opposed to "clinical diagnostics" which refers
to
the analysis of conventional analytes such as blood chemistries, hormones,
proteins and other molecules. The current market for molecular diagnostics
in
the USA is roughly $2.5 billion annually. The compounded annual growth rate
of
this market is over 15%, and it is expected that the growth rate will accelerate
as more products and technologies are brought to bear on the
opportunity.
We
have
formed a wholly owned subsidiary, CombiMatrix Molecular Diagnostics (or
"
CMDX
")
to
take advantage of the capabilities of our DNA array technology to develop
molecular diagnostic services and products. The primary focus of CMDX’s efforts
will be diagnostics for the diagnosis of cancer, for the management of patients
diagnosed with various types of cancer and other diseases with a genetic cause.
In the Unites States alone, the American Cancer Society indicates that 1.4
million individuals are diagnosed with cancer annually, and this rate is
expected to grow rapidly as the overall population, including the "baby boomer"
generation, ages. At any given time in the United States, there are several
million living patients that either have cancer or are cancer survivors that
are
at high risk for recurrence.
Patients
who are newly diagnosed with cancer require significant levels of care, which
includes surgery, hospital stays, examinations, drugs and diagnostics. CMDX
plans to develop a series of products that, through the genetic analysis of
blood, tissue or biopsy samples, will provide information to physicians in
managing their patients.
CMDX
plans to be a fully functional molecular diagnostics laboratory and has received
federal certification by CLIA (Clinical Laboratory Improvement Amendments)
as
well as by other state and local regulatory agencies that are required for
analysis of patient samples. As such, CMDX is currently operating as a service
organization, providing testing services for patients. Although many of CMDX’s
initial services are designed to avoid pre-market approval by the United States
Food and Drug Administration (or "
FDA
"),
many
of the services CMDX will provide may require different levels of regulatory
approval from the FDA.
Homeland
Security and Defense Applications
Through
U.S. government funding, our array technology is being developed to
simultaneously detect toxins, viruses, and bacteria using either genomic
analysis or antigen-antibody experiments, or assays. The ability to conduct
over
12,000 individual assays simultaneously means that our array can be configured
to detect many biothreat agents of interest to the U.S. Department of Defense
and Department of Homeland Security within hours and with a high degree of
certainty that surpasses current technologies. Our goal is that these systems
will eventually be portable and ultimately be completely automated.
Our
technology can simultaneously identify hundreds of different microbes (including
viruses), determine their ability to cause disease, and discover their
characteristics, such as antibiotic resistance. Working with academia, industry,
and government laboratories, we are developing assays, arrays and bioinformatics
for quickly identifying human, animal, and plant pathogens in a single-assay
format. This format and single test eliminates the need for a different test
for
each disease or threat and eliminates the time lost in developing a new test
for
each new disease or threat. For disease-control agencies, it simplifies the
process, reduces costs, and allows more rapid identification and reaction,
all
in an environment where increased time can equate to increased illness and
loss
of lives.
This
program is enabled by the characteristic of our array technology, which allows
the binding reactions to be measured through electrochemical means instead
of
optical methods. Though optical detection has been successful in many
applications and our other products utilize these methods, we feel that
electrochemical detection techniques have the potential to be far superior.
By
eliminating the need for light sources, optical components, their corresponding
mechanical requirements as well as their power requirements, we feel that we
will be able to build detection systems that will be less expensive, smaller,
lighter and portable. In addition, certain technical characteristics of
electrochemical detection on the arrays may enable higher sensitivity, better
dynamic range and superior reproducibility in measurements.
Though
the initial focus of our Government-funded development program is a product
for
military and homeland security markets, the core technology being developed
will
be applicable to products in the life sciences and human healthcare markets
as
well.
Nanotechnology-
Materials, Chemicals, Peptides
We
have
entered into collaborative development programs to use our arrays for the
discovery of nano-structured materials, chemicals, peptides and other molecules.
In analogy to the study of genes and proteins in parallel using a highly
customizable array, researchers can perform combinatorial discovery work in
other areas in a rapid, cost effective manner. The goals of these collaborations
include discovery of new materials or compounds, as well as the development
tools and protocols, including capital equipment and software, to enable these
applications.
OUR
STRATEGY
Our
goal
is to provide customers and partners with tools in their discovery efforts
as
well as to perform discovery ourselves.
Focusing
on High-growth Markets
We
will
focus on markets that we believe are growing rapidly and where we believe we
have a competitive advantage. The first of these markets are for gene
expression, mutation analysis, and other applications for the development of
drugs and diagnostic products. Other markets include protein analysis, homeland
security and military applications, drug development, nanotechnology and
material sciences.
Partnering
with Multiple Companies to Expand Market Opportunity
We
plan
to pursue multiple relationships to facilitate the expansion of our array
technologies and to exploit large and diverse markets. We expect to enter into
relationships and collaborations to gain access to complementary technologies,
distribution channels, manufacturing infrastructure and information content.
For
example, we have executed several distribution agreements with organizations
such as VWR International, Inc. and InBio (a division of Bionsight Pty. Ltd.)
to
market, sell and distribute our suite of products and services around the globe.
We intend to structure additional relationships that maximize our research
and
development efforts with the strong distribution and manufacturing capabilities
of our customers and any entities with which we have joint development
efforts.
Major
Strategic Alliances
We
intend
to rapidly commercialize our array technology for gene expression profiling
through our own sales and marketing efforts. In addition, we have executed
agreements with several strategic partners, such as Furuno Electric Co., Ltd.,
Toppan Printing Co., Ltd. and Roche Diagnostics GmbH to jointly develop our
technology. For example, Furuno is contributing engineering and manufacturing
expertise to jointly develop and manufacture a second version of our desktop
DNA
array synthesizer. We believe that the combination of our core array technology
with Furuno’s expertise in manufacturing complex electronic devices will enable
us to capture a significant portion of the gene expression profiling and
molecular diagnostics markets.
We
have
been awarded several U.S. government grants and contracts to develop our
electrochemical detection system for the detection of biological and chemical
threat agents. Though these programs initially focused on product development
for military and homeland security applications, we believe that the core
technology being developed will be applicable to products in the life sciences
and human healthcare markets as well.
In
addition to these relationships, we have entered into additional relationships
and plans on establishing other relationships for multiple applications of
our
technology.
Expanding
Technologies Into Multiple Product Lines
We
intend
to utilize the flexibility of our semiconductor based array technologies to
develop multiple product lines. In addition to providing new sources of revenue,
we believe these product lines will further our goal of establishing our array
technology as the industry standard for array-based analysis.
Strengthening
Technological Leadership
We
plan
to continue advancing our proprietary technologies through our internal research
efforts, collaborations with industry leaders and strategic licensing. We may
also pursue acquisitions of complementary technologies and leverage our
technologies into other value-added businesses
.
Protecting
and Strengthening Intellectual Property
Through
our five patents issued in the United States and three corresponding patents
granted in Europe, Australia and Taiwan, our 87 patent applications pending
in
the United States, Europe and elsewhere and our trade secrets, we believe we
have suitable intellectual property protection for our proprietary technologies
in those markets where we operate and where a market for our products and
services exists. We plan to build our intellectual property portfolio through
internal research efforts, collaborations with industry leaders, strategic
licensing and possible acquisitions of complementary technologies. We also
plan
to pursue patent protection for downstream products created using our
proprietary products.
REGULATORY
MATTERS
We
sell
array products to the pharmaceutical, biotechnology and academic communities
for
research applications as well as non-life sciences customers. In addition,
our
drug development efforts are early stage. Therefore, our initial products do
not
require approval from, and are not regulated by, the FDA as a manufacturer
nor
are they subject to the FDA’s current good manufacturing practice, or cGMP,
regulations. Additionally, our initial products are not subject to certain
reagent regulations promulgated by the FDA. However, the manufacturing,
marketing and sale of certain products and services for most clinical or
diagnostic applications will be subject to extensive government regulation
as
medical devices in the United States by the FDA and in other countries by
corresponding foreign regulatory authorities.
SUBSIDIARIES
During
the second quarter of 2005, we formed a wholly owned subsidiary, CombiMatrix
Molecular Diagnostics, Inc. (also referred to as "
CMDX
"),
in
order to exploit our array technologies in the field of molecular diagnostics.
As of December 31, 2005 and September 30, 2006, CMDX had 15 and 18 employees,
respectively, located in Irvine, California.
Prior
to
July 11, 2003, CombiMatrix K.K., our majority-owned subsidiary, was operating
under a joint venture agreement with Marubeni Japan, or Marubeni, one of Japan’s
leading trading companies. The primary purpose of the joint venture was to
focus
on development and licensing opportunities for our array technology with
academic, pharmaceutical and biotechnology organizations in the Japanese market.
Marubeni held a 10% minority interests in the joint venture. On July 11, 2003,
Acacia Research Corporation purchased the outstanding minority interests in
CombiMatrix K.K. from Marubeni. Acacia Research Corporation issued 200,000
shares of its AR-CombiMatrix stock to Marubeni in exchange for Marubeni’s 10%
minority interests in CombiMatrix K.K. This increase in ownership interest
was
attributed to the CombiMatrix group. On January 26, 2006, we sold a majority
of
our interest in CombiMatrix K.K. to InBio, an Australian distributor of
CustomArray products. As a result of this transaction, we retained a 33%
minority ownership position in CombiMatrix K.K..
Refer
to
"Management’s Discussion and Analysis of Financial Condition and Results of
Operations" for a description of impairment charges incurred in 2005 related
to
CombiMatrix K.K. and Advanced Material Sciences.
Marketing
and Distribution
During
2004, we launched our CustomArray™ products and are currently selling these
products directly and through distributors to customers in the United States,
Europe and Asia. Since that time we have executed several non-exclusive
distribution agreements with partners such as VWR International to market and
sell our products worldwide. Beginning in 2006, we executed several
manufacturing and distribution agreements to expand our worldwide product reach.
These agreements allow for exclusive distribution of various CustomArray
products in specific territories and for distribution of locally synthesized
CustomArray-brand microarrays, where the manufacturer purchases and uses
CustomArray synthesizers and supplies from us for use in their manufacturing
process. Current manufacturer and distributors include BioInsight Pty. Ltd.,
Prisma Biotech Corp., Macrogen, Inc., and BioTeltec. Where appropriate, we
will
continue to market and sell our products directly or through distribution
arrangements and/or through other strategic alliances. We have also executed
our
CombiCore™ distribution program, which provide for microarray service centers
such as academic research laboratories to become authorized providers of
CustomArray products and services within their research and development
networks.
In
July
2001, we entered into non-exclusive worldwide license, supply, research and
development agreements with Roche. These agreements were amended in September
2002, primarily to grant Roche manufacturing rights with respect to the products
under development in return for additional cash consideration under the
agreements. The agreements are non-exclusive with respect to our core
technology, meaning that we remain free to license our core technology to third
parties for applications in the genomics, proteomics and other fields. The
agreements contain exclusivity or co-exclusivity provisions only with respect
to
the specific products being co-developed for, and partially funded by, Roche
pursuant to the agreements. Since July 2001, we have received approximately
$26.6 million in cash payments from Roche from July 2001 through December 31,
2003. The agreements contain provisions that would allow Roche to terminate
the
agreements. Although Roche has not done so, in March 2004, the agreements were
modified to indicate that we had completed all phases of our research and
development commitments to Roche, and we have not received any additional
payments from Roche since December 31, 2003.
MANUFACTURING
We
have
developed automated, computer-directed manufacturing processes for the synthesis
of sequences of DNA, RNA, peptides or small molecules on our arrays. Certain
portions of our manufacturing, such as semiconductor fabrication and processing
are outsourced to subcontractors, while we conduct the steps involving synthesis
of biological materials and quality control of our products.
Substantially
all of the components and raw materials used in the manufacture of our products,
including semiconductors and reagents, are currently provided from a limited
number of sources or in some cases from a single source. Although we believe
that alternative sources for those components and raw materials are available,
any supply interruption in a sole-sourced component or raw material might result
in up to a several-month production delay and materially harm our ability to
manufacture products until a new source of supply, if any, could be located
and
qualified. In addition, an uncorrected impurity or supplier’s variation in a raw
material, either unknown to us or incompatible with our manufacturing process,
could have a material adverse effect on our ability to manufacture products.
We
may be unable to find a sufficient alternative supply channel in a reasonable
time period, or on commercially reasonable terms, if at all. We utilize
non-standard semiconductor manufacturing processes to fabricate the electrode
array that is a key aspect of the array structure. Although we have a supply
agreement in place with the semiconductor wafer manufacturer to ensure
availability of the raw materials, it does not guarantee a permanent supply.
These non-standard processes are not widely available, and it may be difficult
or expensive to obtain sufficient quantities of semiconductor wafers if the
current manufacturer changes or discontinues our manufacturing production
capability.
PATENTS
AND LICENSES
We
continue to build our intellectual property portfolio to protect our product
in
those markets where we operate and where a market for our products and services
exists. In the United States, we have been issued five United States patents.
Three of the United States patents (U.S. Patent No. 6,093,302 expiration date
January 5, 2018; U.S. Patent No. 6,280,595 expiration date January 5, 2018
and
U.S. Patent No. 6,444,111 expire on January 5, 2018) and protect our core
technology relating to methods for electrochemical synthesis of arrays. The
fourth United States Patent (U.S. Patent No. 6,456,942 expiration date January
25, 2020) describes and claims a network infrastructure for a customized array
synthesis and analysis. The fifth United States Patent (U.S. Patent No.
7,075,187, expiring on November 9, 2021) describes and claims a coating material
that covers electrodes and is used as a support material for electrochemical
synthesis on arrays. Corresponding core patents describing and claiming methods
for electrochemical synthesis of arrays have been issued to us in Europe (entire
EU), Australia and Taiwan and are pending in the remaining major industrialized
markets. In total, we have 87 patent applications pending in the Unites States,
Europe and elsewhere.
We
seek
to protect our corporate identity with trademarks and service marks. In
addition, our trademark strategy includes protecting the identity and goodwill
associated with our biological and chemical array processor products. We
purchase chemical reagents from suppliers who are licensed under appropriate
patent rights. It is our policy to obtain licenses from patent holders, or
as a
purchaser from licensed suppliers, if needed, to practice our chemical
processes.
Our
success will depend, in part, upon our ability to obtain patents and maintain
adequate protection of our intellectual property in the United States and other
countries. If we do not protect our intellectual property adequately,
competitors may be able to use our technologies and thereby erode any
competitive advantage that we 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
laws, rules and/or methods for defending intellectual property rights. In
addition, the laws of foreign jurisdictions, such as the European Union, provide
an opportunity for parties to oppose the granting of patents when such claims
may be construed as too broad or significantly beyond the scope of the initial
teaching or disclosure in a patent filed. Moreover, the laws of the United
States provide an opportunity for parties to file for reexamination of issued
U.S. Patents based upon prior art patents and publications. Reexamination can
result in narrower claims and invalidation of claims. We have been active in
Europe challenging the rights of competitors who have patent claims extending
well beyond the scope of any teachings provided. There is no assurance that
we
will continue to be successful in such oppositions.
The
patent positions of companies developing tools and drugs for the biotechnology
and pharmaceutical industries, including our patent position, generally are
uncertain and involve complex legal and factual questions. We will be able
to
protect our proprietary rights from unauthorized use by third parties only
to
the extent that our proprietary technologies are covered by valid and
enforceable patents or are effectively maintained as trade secrets. Our existing
patent and any future patents we obtain may not be sufficiently broad to prevent
others from practicing our specific technologies or from developing competing
products. There also is risk that others may independently develop similar
or
alternative technologies or design around our patented technologies. In
addition, others may challenge or invalidate our patents, or our patents may
fail to provide us with any competitive advantage. Enforcing our intellectual
property rights may be difficult, costly and time consuming, and ultimately
may
not be successful.
We
also
rely upon trade secret protection for our confidential and proprietary
information. We seek to protect our proprietary information by entering into
confidentiality and invention disclosure and transfer agreements with employees,
collaborators and consultants. These measures, however, may not provide adequate
protection for our trade secrets or other proprietary information. Employees,
collaborators or consultants may still disclose our proprietary information,
and
we may not be able to meaningfully protect our trade secrets. In addition,
others may independently develop substantially equivalent proprietary
information or techniques or otherwise gain access to our trade secrets. Also,
former employees may also knowingly violate such agreements, forcing us to
enforce our intellectual property rights.
We
cannot
assure you that any of our patent applications will result in the issuance
of
any additional patents, that our patent applications will have priority of
invention or filing date over similar rights of others, or that, if issued,
any
of our patents will offer protection against our competitors. Additionally,
we
cannot assure you that any patent issued to us will not be challenged,
invalidated or circumvented in the future or that the intellectual property
rights we have created will provide a competitive advantage. Litigation may
be
necessary to enforce our intellectual property rights or to determine the
enforceability, scope of protection or validity of the intellectual property
rights of others.
COMPETITION
We
expect
to encounter competition for business opportunities from other entities having
similar business objectives. Many of these potential competitors possess greater
financial, technical, human and other resources than we do. We anticipate that
we will face increased competition in the future as new companies enter the
market and advanced technologies become available. In the life sciences
industry, many competitors have more experience in research and development
than
we do. Technological advances or entirely different approaches developed by
one
or more of our competitors could render our processes obsolete or uneconomical.
The existing approaches of competitors or new approaches or technology developed
by competitors may be more effective than those developed by us.
We
are
aware of other companies or companies with divisions that have, or are
developing, technologies for the SNP genotyping, gene expression profiling
and
diagnostic markets. We believe that our primary competitors will be Affymetrix,
Inc., Agilent Technologies, Inc., Applera Corporation, Ciphergen Biosystems,
Inc., Gene Logic Inc., Genomic Health, Inc., Illumina, Inc., Nanogen, Inc.,
Roche Diagnostics GmbH and Sequenom, Inc. However, our market is rapidly
changing, and we expect to face additional competition from new market entrants,
new product developments and consolidation of our existing competitors. Many
of
our competitors have existing strategic relationships with major pharmaceutical
and biotechnology companies, greater commercial experience and substantially
greater financial and personnel resources than we do. We expect new competitors
to emerge and the intensity of competition to increase in the
future.
RESEARCH,
DEVELOPMENT AND ENGINEERING
Our
research and development expenses were $8.6 million, $5.4 million and $5.8
million during 2003, 2004 and 2005, respectively. Of these amounts, research
and
development related non cash stock compensation charges were $466,000, $91,000
and $0 during 2003, 2004 and 2005, respectively. We intend to invest in our
proprietary technologies through internal development and, to the extent
available, licensing of third-party technologies to increase and improve other
characteristics of our products. We also plan to continue to invest in improving
the cost-effectiveness of our products through further automation and improved
information technologies. Our future research and development efforts may
involve research conducted by us, collaborations with other researchers and
the
acquisition of chemistries and other technologies developed by universities
and
other academic institutions.
We
are
developing a variety of life sciences and non-life sciences products and
services. Potential customers for these products operate in industries
characterized by rapid technological development. We believe that our future
success will depend in large part on our ability to continue to enhance our
existing products and services and to develop other products and services,
which
complement existing ones. In order to respond to rapidly changing competitive
and technological conditions, we expect to continue to incur significant
research and development expenses during the initial development phase of new
products and services, as well as on an ongoing basis.
GOVERNMENT
Grants
and
Contracts
Government
grants and contracts have allowed us to fund certain internal scientific
programs and exploratory research. We retain ownership of all intellectual
property and commercial rights generated during these projects. The United
States government, however, retains a non-exclusive, non-transferable, paid-up
license to practice the inventions made with federal funds pursuant to
applicable statutes and regulations. We do not believe that the retained license
will have any impact on our ability to market our products. We do not need
government approval to enter into collaborations or other relationships with
third parties.
We
have
been awarded several grants from the federal government in connection with
our
biological and chemical array processor technology since our inception. In
March
of 2004, we were awarded a two-year, $5.9 million contract with the Department
of Defense (DoD) to further the development of our array technology for the
electrochemical detection of biological and chemical threat agents. Under the
terms of the contract, we will be reimbursed on a periodic basis for actual
costs incurred to perform our obligations, plus a fixed fee, of up to $5.9
million. This project was completed during 2005. In February of 2006, we were
awarded a one-year, $2.1 million contract with the Department of Defense to
further the development of our array technology for the electrochemical
detection of biological and chemical threat agents developed under the previous
contracts and grants. In August of 2006, we executed a two-year, $1.9 million
contract with the DoD, focusing on the integration of our electrochemical
detection technology currently under development with our microfluidics
"lab-on-a-chip" technology to be used for military and homeland security
applications.
We
will
continue to pursue grants and contracts that complement our research and
development efforts.
RECENT
ACTIVITIES
Our
significant milestones during 2005 and 2006 include the following:
Genetic
Analysis
Products and Services
·
In
January 2005, we entered into a distribution agreement with InBio to distribute
our CustomArray products for the Australian and New Zealand marketplaces.
InBio’s sales and marketing organization will market, sell, and service the
CustomArray products in these regions.
·
In
August
2005, we announced the launch of our first CustomArray DNA Synthesizer, enabling
researchers to build arrays in their own facilities. The platform consists
of
the DNA CustomArray Synthesizer instrument and freely programmable arrays or
CustomArrays. Initially, the instrument has been designed to fabricate the
CustomArray 12K (12,000 unique sites) array.
·
In
September 2005, we expanded our product line to include the CustomArray 4X2K™.
This product contains four independent 2000-feature arrays on a single
CustomArray. As with all CustomArray products, the 4X2K offers complete array
customization, user control of probe design, and the ability to modify array
design at any time. It delivers high sensitivity, throughput, and ease of use
for gene discovery, pathway research, and molecular characterization of
disease.
·
In
September 2005, we entered into a global distribution agreement with VWR
International, Inc., or VWR, to distribute CustomArrays™ and CatalogArrays for
us. VWR’s sales and marketing organization presently serves over 250,000
customers with worldwide sales of $3.0 billion annually.
·
In
February 2006, we launched our next generation surveillance technology on our
4X2K format for all strains of Influenza A as well as the influenza H5N1 bird
flu strain.
·
In
March
2006, we launched the ElectraSense™ Influenza Typing System based on our
propriety electrochemical detection technology and its Influenza A Typing
Microarray. We are prepared to make this system available to domestic and
international government agencies that are engaged in monitoring influenza
and
planning for a potential pandemic. Using this system, government agencies can
verify, before disseminating potentially alarming information to the public,
whether samples contain a highly pathogenic substrain of H5N1 or one of the
several non-lethal substrains of H5N1. The system is designed for research
use,
surveillance and monitoring applications, use for animal studies, and other
applications not requiring FDA registration, though we will seek FDA approval
for this product.
·
In
May
2006, we launched the next-generation CustomArray and CustomArray Synthesizer,
providing researchers with the ability to fabricate the new CustomArray 90K.
This high-density, customizable, re-usable microarray has over 94,000 unique
DNA
probes. The CustomArray 90K enables us to completely serve the entire research
market with whole-genome gene expression, SNP genotyping, comparative genomic
hybridization (CGH), tiling, ChIP-on-chip, and resequencing. Also in May 2006,
we began offering its Human 90K™ CatalogArray™. Powered by our proprietary
CustomArray Platform, the new Human 90K CatalogArray can interrogate 39,882
RNA
transcripts, offering researchers the most up-to-date human array.
·
In
July
2006, we, working in partnership with Furuno Electric Co., Ltd. of Japan,
announced the launch of our new QuadroCAS™ CustomArray™ Synthesizer. Jointly
designed and developed by our two companies, this new instrument integrates
our
proprietary electrochemical in situ oligonucleotide synthesis technology into
a
compact, stand-alone design. Manufactured by Furuno at their instrument
production facility in Japan, the QuadroCAS Synthesizer combines convenient
and
reliable reagent handling hardware with state of the art Furuno instrument
control and signal processing electronics to deliver a full-featured, small
footprint instrument for CustomArray production applications. Designed and
tested to meet appropriate safety certification standards, the QuadroCAS
Synthesizer will bear the CE ("European Conformity") and TUV markings (i.e.,
tested by TUV to meet the minimum requirements of prescribed product safety
standards) and is suitable for worldwide distribution. Using this instrument,
researchers around the world will be able to rapidly produce custom DNA
microarrays to their exact specifications with complete control over the
content.
Homeland
Security and Defense Applications
·
In
September 2005, we received a one-year, $338,000 contract from the U.S. Air
Force for the development and production of arrays to detect pathogens that
cause upper respiratory infections and pathogens that infect wounds. This
contract is the result of a collaborative effort with the Air Force Institute
of
Occupational Health, or AFIOH, that lead to the development of a rapid assay
and
array that identifies, among other things, all forms (serotypes) of influenza
A,
SARS and bird flu, including the H5N1 strain. The first array to be developed
under the new contract will identify a number of upper respiratory infections
that can cause potentially life threatening diseases (such as viral and
bacterial pneumonia) or lead to pandemic infections (such as bird flu and
SARS).
·
In
February 2006, we executed a one-year, $2.1 million contract with the U.S.
Department of Defense to further the development of our array technology for
the
electrochemical detection of biological and chemical threat agents. Under the
terms of this contract, we will perform research and development activities
as
described under the contract and will be reimbursed on a periodic basis for
actual costs incurred to perform our obligations, plus a fixed fee, of up to
$2.1 million. The objective of the contract is to develop a self-contained,
fully integrated, automatic, and disposable device for detection of a wide
variety of microorganisms within one hour.
·
In
August
2006, we executed a two-year, $1.9 million contract with the U.S. Department
of
Defense, focusing on the integration of our electrochemical detection technology
currently under development with our microfluidics "lab-on-a-chip" technology
to
be used for military and homeland security applications. Under the terms of
this
contract, we will perform research and development activities, as described
under the contract, and will be reimbursed on a periodic basis for actual costs
incurred to perform these obligations, plus a fixed fee, of up to $1.9
million.
Drug
Discovery and Diagnostics
·
During
the second quarter of 2005, we formed a wholly owned subsidiary, CombiMatrix
Molecular Diagnostics, Inc., (or CMDX) for the purpose of exploiting the
opportunities in the molecular diagnostics market for our array technology.
CMDX
is a California corporation located in Irvine whose management team includes
several former executives of U.S. Labs and other laboratory diagnostic
companies. CMDX currently leases approximately 3,500 square feet of lab space
in
Irvine, California and is in the process of applying for our Clinical Laboratory
Improvement Amendment, or CLIA, certification necessary to perform laboratory
operations for customers.
·
In
October 2005, we launched a new comprehensive influenza DNA array as well as
services for the typing of influenza strains. Our Influenza Microarray is now
a
member of the CatalogArray™ product line and can detect and accurately type flu
strains using a protocol that requires less than four hours start to finish.
This new array can identify H5N1 bird flu as well as all other strains of
Influenza A. It can also provide information on mutations and novel strains
of
flu not yet seen. It is designed to work on samples from humans as well as
from
birds, pigs, horses, dogs, and various other animals. CMDX began offering
testing services using this array in December 2005.
·
In
March
2006, CMDX received certification to operate as a clinical laboratory in
accordance with the federal government’s Clinical Laboratory Improvement Act
("
CLIA
"),
a
regulatory program that monitors the quality of laboratory testing. According
to
CLIA, any laboratory in the U.S. that conducts testing on human specimens for
purposes other than research must be certified.
·
In
July
2006, we announced that we had received a letter from the Office of In Vitro
Diagnostic Device Evaluation and Safety (OIVD) of the US Food and Drug
Administration (FDA). The letter invited the company to meet with the OIVD
to
discuss CMDX’s plans to market its Constitutional Genetic Array Test (CGAT). The
company met with OIVD on September 14, 2006. On October 16, 2006 we received
a
letter from OIVD indicating that the CGAT test need not be regulated as an
In
Vitro Diagnostic Multivariate Index Assay under its recently published
guidelines.
·
In
September 2006, we announced that CMDX had commercially launched its first
molecular diagnostic service. Physicians are now able to prescribe this test
for
their patients. This first offering utilizes CMDX’s Constitutional Genetic Array
Test, which can genetically identify over 50 common genetic disorders in one
test. This array is already being sold in Europe, and is now being offered
as a
service in the US, after internal clinical validation.
Nanotechnology
·
In
August
2005, we entered into a collaboration with the Biodesign Institute at Arizona
State University, or the Institute, toward the development of a peptide array
synthesizer utilizing our proprietary virtual-flask technology. Under the terms
of the agreement, the Biodesign Institute’s Center for BioOptical Nanotechnology
purchased our equipment and will be funding development of the synthesizer.
We
are granting technology rights and contributing expertise related to our
technology, and we will share revenue from commercialization of peptide array
synthesizers, peptide array products, and intellectual property that are
developed with the Institute.
·
In
March
2006, we were granted a key patent in Europe (EP1185363B1), titled
"Self-Assembling Arrays" by the European Patent Office. This European Patent
was
registered throughout the European Union in Germany, France, Spain, Great
Britain, and Italy, and the opposition period has passed. A corresponding U.S.
patent is pending in the U.S. Patent and Trademark Office and is moving through
the process. The European patent claims both self-assembled arrays and a method
for making self-assembled arrays on electrode arrays with self-assembled
antibodies. This microarray configuration is especially useful for arraying
proteins specifically antibodies. The technology enables products such as
multiplexed immunoassays, monitoring of biowarfare and terrorist agents, and
general protein analysis tools.
Additions
to our Scientific Advisory Board and Other
·
In
August
2005, we announced that R. Scott Greer joined CombiMatrix Corporation as an
advisor. Mr. Greer is managing director of Numenor Ventures, LLC, a firm he
formed to invest in and provide strategic advisory services to innovative life
sciences companies. He is a founder and remains chairman of Abgenix, Inc.,
a
public biopharmaceutical company. Mr. Greer served as Chief Executive Officer
of
Abgenix from June 1996 to April 2002. He is also a director of publicly traded
Sirna Therapeutics, Inc. and chairman of Acologix, a private company.
Previously, Mr. Greer was a director of Ilumina, Inc. and CV Therapeutics,
Inc.,
both publicly traded companies.
·
In
August
2005, we announced that Dr. Eric Whitman joined CMDX as a member of our
scientific advisory board and as a consultant in the area of melanoma diagnosis.
Dr Whitman, F.A.C.S., is the Administrative Director of Surgical Services and
the Director of the Melanoma Center at Mountainside Hospital, in Montclair,
New
Jersey.
·
In
November 2005, we announced that Dr. Scott W. Binder, M.D. joined CMDX as a
member of our Scientific Advisory Board. Dr. Binder is a Professor of Clinical
Pathology and Dermatology, Chief of Dermatopathology, and Director of Pathology
Outreach Services at the David Geffen School of Medicine at UCLA.
·
Also
in
November 2005, we announced that Dr. Jonathan W. Said, M.D. joined CMDX, as
a
member of our Scientific Advisory Board. Dr. Said is a board certified Anatomic
Pathologist who is currently Chief, Division of Anatomic Pathology, Department
of Pathology and Laboratory Medicine and Chief, Surgical Pathology at UCLA
Medical Center for the Health Sciences. He is also Professor of Pathology and
Urology at UCLA School of Medicine.
·
In
May
2006, CMDX named renowned genomics expert Stephen W. Scherer, Ph.D. to its
scientific advisory board. Dr. Scherer is a Senior Scientist in Genetics and
Genomic Biology at The Hospital for Sick Children and Associate Professor of
Medicine at the University of Toronto.
·
In
July
2006, we announced that John H. Abeles, M.D. had joined the Scientific Advisory
Board of CombiMatrix Corporation. Dr. Abeles practiced medicine in London,
before joining the Pharmaceutical Industry as a Senior Medical Executive, with
Pfizer, Inc., Sterling Drug, and Revlon Health Care. From 1975 until 1980,
he
was a healthcare analyst with Kidder Peabody and later formed MedVest Inc.,
a
healthcare consulting firm. Since 1992, Dr. Abeles has been a Founder and
investor in several investment funds for both venture capital and public
equities, whose investments were centered around healthcare and medical
equipment companies. He also presently serves as a Managing Member of a New
York
based investment fund focused on healthcare investments.
EMPLOYEES
As
of
October 31, 2006
,
we had
76
full-time employees,
17
of
whom hold a Ph.D. or an M.D. degree and
49
of
whom are engaged in full-time research and development activities. We have
no
part-time employees. We are not a party to any collective bargaining agreement.
We consider our employee relations to be good.
ENVIRONMENTAL
MATTERS
Our
operations involve the use, transportation, storage and disposal of hazardous
substances, and as a result, we are subject to environmental and health and
safety laws and regulations. The cost of complying with these and any future
environmental regulations could be substantial. In addition, if we fail to
comply with environmental laws and regulations, or releases any hazardous
substance into the environment, we could be exposed to substantial liability
in
the form of fines, penalties, remediation costs and other damages, or could
suffer a curtailment or shut down of our operations.
DESCRIPTION
OF PROPERTY
We
lease
office and laboratory space totaling approximately 90,111 square feet located
north of Seattle, Washington, under a lease agreement that expires in December
2008, and approximately 3,500 square feet in Irvine, California under a lease
agreement that expires in August 2007. Presently, we are not seeking any
additional facilities.
LEGAL
PROCEEDINGS
On
or
about December 6, 2006, Mr. Jeffrey Oster filed a complaint against Combimatrix
Corporation, Acacia Research Corporation, Amit Kumar and Brooke Anderson before
the U.S. Department of Labor, alleging discriminatory employment practices
in
violation of Section 806 of the Corporate and Criminal Fraud Accountability
Act
of 2002, Title VIII of the Sarbanes-Oxley Act of 2002. Mr. Oster alleges that
he
made complaints to his superiors regarding two separate circumstances in which
he felt that Acacia Research Corporation and CombiMatrix Corporation violated
federal securities laws. He alleges that within two or three weeks following
his
complaints that CombiMatrix Corporation installed tracking software on its
computer used by Mr. Oster for the purpose of finding cause to terminate him.
He
also claims his responsibilities were gradually stripped away until he was
terminated. He alleges these actions were done in retaliation against his
complaints of violations of federal securities laws. Mr. Oster is seeking the
following remedies: (a) back pay, (b) front pay or severance pay and benefits
in
lieu of reinstatement, (c) prejudgment interest, (d) attorneys fees, (e)
additional monetary damages to compensate him for adverse tax consequences,
and
(e) additional relief that may be determined appropriate or just. No specific
amount of damages is being sought. The complaint is under review by the
Department of Labor. We intend to vigorously defend against this action.
Management
does not believe the allegations made by Mr. Oster in the complaint have any
merit, nor does management believe the resolution of this matter will have
any
material affect upon the financial statements or other information included
in
this prospectus. This complaint was filed following a letter to the Board of
Directors of Acacia Research Corporation containing the same allegations.
Following an internal investigation in conjunction with Acacia’s outside
counsel, neither Acacia’s Audit Committee nor outside counsel was able to verify
any of the allegations made by the former employee. Nonetheless, in an abundance
of caution, the Audit Committee engaged an independent counsel to conduct an
investigation of the allegations. The independent counsel found no merit to
the
allegations.
RELATIONSHIP
OF ACACIA RESEARCH CORPORATION AND OUR COMPANY
AFTER
THE SPLIT OFF
Following
the split off, we will no longer be an affiliate of Acacia. Management of
Acacia, including our senior officers and directors, will no longer be
affiliates of our company. As a result, 90 days following the redemption date,
management of Acacia will no longer be subject to restrictions on trading our
common stock pursuant to Section 16 of the Exchange Act or pursuant to Rule
144
under the Securities Act.
We
are
entering into a Distribution Agreement and a Tax Allocation Agreement with
Acacia Research Corporation, effective on the date of redemption. Pursuant
to
the Distribution Agreement, the assets and liabilities of the CombiMatrix group
and Acacia Technologies group will be legally transferred to our company and
Acacia, as described below, to the extent not already owned by them. All assets
and liabilities held by Acacia but attributable to the CombiMatrix group will
be
assigned to and assumed by CombiMatrix Corporation. All assets and liabilities
of CombiMatrix attributable to the Acacia Technologies group will be assigned
to
and assumed by Acacia. The net value of the assets and liabilities to be
assigned and assumed pursuant to the Distribution Agreement will not have a
material effect on our financial statements. In addition, all stock of Advanced
Material Sciences, Inc. held by Acacia as well as Acacia’s minority ownership
interest in CombiMatrix K.K. will be contributed to CombiMatrix Corporation.
Following such contribution, we will own approximately 100% and 33% of Advanced
Materials Sciences, Inc. and CombiMatrix K.K. respectively.
Pursuant
to the Tax Allocation Agreement, we will be responsible for any tax liabilities
attributable to the CombiMatrix group prior to the split off, even if legally
owed by Acacia Research Corporation. Likewise, Acacia Research Corporation
will
be responsible for any tax liabilities attributable to the Acacia Technologies
group prior to the split off, even if legally owed by CombiMatrix Corporation
or
its subsidiaries.
The
Tax
Allocation Agreement also provides for the allocation of responsibility of
any
tax consequences resulting from the split off. These liabilities may arise
based
on the conduct of the parties prior to the split off or following the split
off.
We believe the transaction will qualify as a tax-free reorganization, so
we do
not expect any tax liability for the split off as a result of the conduct
of
either party prior to the split off. We will indemnify Acacia for any tax
liability for the split off resulting from our actions after the split off.
Likewise, Acacia will indemnify us for any tax liabilities for the split
off
resulting from Acacia’s similar actions after the split off.
We
have
agreed not to take any action that would cause the split off not to qualify
under Section 355 of the Code. For example, we have agreed not to take
certain actions for two years following the split off, unless we obtain an
IRS
ruling or an opinion of counsel to the effect that these actions will not
affect
the tax-free nature of the split off. These actions include certain issuances
of
our stock, a liquidation or merger of our company, and dispositions of assets
outside the ordinary course of our business. If any of these transactions
were
to occur, the split off could be deemed to be a taxable distribution to Acacia.
This would subject Acacia to a significant tax liability. We have agreed
to
indemnify Acacia and its affiliates to the extent that any action we take
or
fail to take gives rise to a tax incurred by Acacia or any of its affiliates
with respect to the split off. In addition, we have agreed to indemnify Acacia
for any tax resulting from an acquisition by one or more persons of a 50% or
greater interest in our company.
SELECTED
FINANCIAL DATA
The
consolidated selected balance sheet data as of September 30, 2006 and the
consolidated selected statement of operations data for the nine months ended
September 30, 2005 and 2006 set forth below have been derived from our unaudited
consolidated financial statements included elsewhere herein, and should be
read
in conjunction with those financial statements (including the notes thereto).
The consolidated selected balance sheet data as of December 31, 2004 and 2005
and the consolidated selected statement of operations data for the years ended
December 31, 2003, 2004 and 2005 set forth below have been derived from our
audited consolidated financial statements included elsewhere herein, and should
be read in conjunction with those financial statements (including the notes
thereto). The consolidated selected balance sheet data as of December 31, 2002
and 2003 have been derived from audited consolidated financial statements not
included herein, but which were previously filed with the SEC. The consolidated
selected balance sheet data as of December 31, 2001 and the consolidated
selected statement of operations data for the year ended December 31, 2001,
and
for the period ended January 1, 2002 through December 12, 2002 are unaudited
and
represent the predecessor basis of the company’s selected financial data prior
to its merger with Acacia on December 13, 2002, discussed further below. The
unaudited consolidated selected statement of operations data for the period
ended December 13, 2002 through December 31, 2002 has been derived from audited
consolidated financial statements not included herein, but which were previously
filed with the SEC.
|
|
|
Year
Ended
December 31,
|
|
|
For
the Period
Ended January 1,
2002 through
December
12,
|
|
|
For
the Period
Ended December 13,
2002 through
December
31,
|
|
|
For
the Years Ended December 31,
|
|
|
For
the Nine Months
Ended September 30,
|
|
|
|
|
2001
|
|
|
2002
|
|
|
2002
|
|
|
2003
|
|
|
2004
|
|
|
2005
|
|
|
2005
|
|
|
2006
|
|
|
|
(predecessor
basis)
(unaudited)
|
|
|
(unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
Consolidated
Statement of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Collaborative
agreements
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
$
|
17,302
|
|
$
|
2,266
|
|
$
|
-
|
|
$
|
-
|
|
Government
contract
|
|
|
456
|
|
|
378
|
|
|
-
|
|
|
-
|
|
|
1,993
|
|
|
3,849
|
|
|
2,985
|
|
|
1,563
|
|
Service
contracts
|
|
|
-
|
|
|
155
|
|
|
-
|
|
|
49
|
|
|
116
|
|
|
153
|
|
|
108
|
|
|
268
|
|
Products
|
|
|
-
|
|
|
306
|
|
|
-
|
|
|
407
|
|
|
230
|
|
|
1,765
|
|
|
1,296
|
|
|
3,050
|
|
Total
revenues
|
|
|
456
|
|
|
839
|
|
|
-
|
|
|
456
|
|
|
19,641
|
|
|
8,033
|
|
|
4,389
|
|
|
4,881
|
|
Operating
expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost
of government contract revenues
|
|
|
438
|
|
|
359
|
|
|
-
|
|
|
-
|
|
|
1,874
|
|
|
3,683
|
|
|
2,820
|
|
|
1,476
|
|
Cost
of product sales
|
|
|
-
|
|
|
263
|
|
|
-
|
|
|
99
|
|
|
173
|
|
|
820
|
|
|
635
|
|
|
973
|
|
Research
and development
|
|
|
18,400
|
|
|
18,858
|
|
|
838
|
|
|
8,564
|
|
|
5,385
|
|
|
5,783
|
|
|
4,082
|
|
|
7,380
|
|
In-process
research and development
|
|
|
-
|
|
|
-
|
|
|
17,237
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
Marketing,
general and administrative
|
|
|
27,719
|
|
|
13,066
|
|
|
1,793
|
|
|
9,820
|
|
|
9,902
|
|
|
9,827
|
|
|
7,345
|
|
|
9,691
|
|
Patent
amortization and royalties
|
|
|
-
|
|
|
|
|
|
399
|
|
|
1,178
|
|
|
1,234
|
|
|
1,312
|
|
|
951
|
|
|
1,075
|
|
Legal
settlement charges (credits)
|
|
|
-
|
|
|
18,471
|
|
|
-
|
|
|
144
|
|
|
812
|
|
|
(406
|
)
|
|
(406
|
)
|
|
-
|
|
Equity
in loss of investee
|
|
|
54
|
|
|
15
|
|
|
-
|
|
|
-
|
|
|
17
|
|
|
352
|
|
|
202
|
|
|
786
|
|
Goodwill
impairment
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
565
|
|
|
-
|
|
|
-
|
|
Total
operating expenses
|
|
|
46,611
|
|
|
51,032
|
|
|
20,267
|
|
|
19,805
|
|
|
19,397
|
|
|
21,936
|
|
|
15,629
|
|
|
21,381
|
|
Operating
income (loss)
|
|
|
(46,155
|
)
|
|
(50,193
|
)
|
|
(20,267
|
)
|
|
(19,349
|
)
|
|
244
|
|
|
(13,903
|
)
|
|
(11,240
|
)
|
|
(16,500
|
)
|
Other
income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
income
|
|
|
1,976
|
|
|
573
|
|
|
16
|
|
|
214
|
|
|
330
|
|
|
523
|
|
|
328
|
|
|
429
|
|
Interest
expense
|
|
|
(65
|
)
|
|
(190
|
)
|
|
(7
|
)
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Loss
on sale of interest in subsidiary
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(84
|
)
|
Warrant
credits
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
812
|
|
|
163
|
|
|
663
|
|
Total
other income
|
|
|
1,911
|
|
|
383
|
|
|
9
|
|
|
214
|
|
|
330
|
|
|
1,335
|
|
|
491
|
|
|
1,008
|
|
Income
(loss) from operations before
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
income
taxes and minority interests
|
|
|
(44,244
|
)
|
|
(49,810
|
)
|
|
(20,258
|
)
|
|
(19,135
|
)
|
|
574
|
|
|
(12,568
|
)
|
|
(10,749
|
)
|
|
(15,492
|
)
|
Benefit
for income taxes
|
|
|
|
|
|
|
|
|
147
|
|
|
136
|
|
|
136
|
|
|
167
|
|
|
133
|
|
|
34
|
|
Income
(loss) from operations before
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
minority
interests
|
|
|
(44,244
|
)
|
|
(49,810
|
)
|
|
(20,111
|
)
|
|
(18,999
|
)
|
|
710
|
|
|
(12,401
|
)
|
|
(10,616
|
)
|
|
(15,458
|
)
|
Minority
interests
|
|
|
16
|
|
|
75
|
|
|
23,627
|
|
|
30
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Net
income (loss)
|
|
$
|
(44,228
|
)
|
$
|
(49,735
|
)
|
$
|
3,516
|
|
$
|
(18,969
|
)
|
$
|
710
|
|
$
|
(12,401
|
)
|
$
|
(10,616
|
)
|
$
|
(15,458
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unaudited
pro forma net income (loss)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
per
share: basic and diluted
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(0.24
|
)
|
|
|
|
$
|
(0.30
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unaudited
pro forma weighted average
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
common
shares outstanding:
basic and diluted
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
52,365,810
|
|
|
|
|
|
52,365,810
|
|
|
|
December
31,
|
|
December
31,
|
|
September
30,
|
|
Pro
Forma
September 30,
|
|
|
|
2001
|
|
|
|
|
|
2004
|
|
|
|
2006
|
|
2006(2)
|
|
|
|
(predecessor
basis)
(unaudited)
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
Consolidated
Balance Sheet Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash,
cash equivalents and short-term investments
|
|
$
|
28,055
|
|
$
|
14,896
|
|
$
|
17,299
|
|
$
|
23,712
|
|
$
|
20,265
|
|
$
|
8,755
|
|
|
|
|
Working
capital (deficit)
|
|
|
20,060
|
|
|
4,332
|
|
|
(2,000
|
)
|
|
22,135
|
|
|
19,185
|
|
|
7,324
|
|
|
|
|
Total
assets
|
|
|
35,436
|
|
|
49,973
|
|
|
50,161
|
|
|
55,388
|
|
|
52,593
|
|
|
39,424
|
|
|
|
|
Total
liabilities
|
|
|
11,575
|
|
|
13,972
|
|
|
24,424
|
|
|
8,560
|
|
|
7,495
|
|
|
5,204
|
|
$
|
4,485
|
|
Allocated
net worth
|
|
|
23,719
|
|
|
35,317
|
|
|
25,737
|
|
|
46,828
|
|
|
45,098
|
|
|
34,220
|
|
|
34,939
|
|
__________________________
(1)
Pro
forma
basic and diluted net loss per share has been computed by dividing net loss
for
the period by the number of AR-CombiMatrix shares assumed to be outstanding
and
converted into common stock of CombiMatrix Corporation as of the redemption
date.
(2)
Pro
forma
balance sheet data reflects the reclassification of common stock warrants that
have historically been classified as long term liabilities due to Acacia’s
redeemable equity structure, but which will be classified as permanent equity
in
CombiMatrix Corporation’s consolidated balance sheets after the Redemption
Date.
FACTORS
AFFECTING COMPARABILITY:
·
The
selected financial data above labeled as "predecessor basis" reflects the
operations, assets and liabilities of CombiMatrix Corporation prior to the
merger with Acacia on December 13, 2002. As a result of the merger, certain
assets and related charges were pushed down to CombiMatrix Corporation that
had
previously been reflected only on Acacia’s historical financial statements form
previous step acquisitions of CombiMatrix Corporation’s common stock. In
addition, a one-time charge for in-process research and development of $17.2
million was recognized by Acacia in purchasing the remaining interest in
CombiMatrix Corporation not previously owned by Acacia, based upon the fair
value of CombiMatrix Corporation’s in-process research and development at the
time of the merger with Acacia.
·
During
the year ended December 31, 2000, we recorded deferred non-cash stock
compensation charges aggregating approximately $53.8 million in connection
with
the granting of stock options. Deferred non-cash stock compensation charges
are
being amortized over the respective option grant vesting periods, which range
from one to four years. Deferred non-cash stock compensation charges were fully
amortized as of December 31, 2004.
·
On
September 30, 2002, CombiMatrix Corporation and Dr. Donald Montgomery, an
officer and stockholder of CombiMatrix Corporation, entered into a settlement
agreement with Nanogen to settle all pending litigation between the parties.
In
addition to other terms of the settlement agreement as described elsewhere
herein, we agreed to pay Nanogen $1.0 million and issued 4,016,346 shares,
or
17.5% of our outstanding shares post issuance, to Nanogen. The $1.0 million
in
payments have been expensed in the consolidated statement of operations for
the
year ended December 31, 2002 under "legal settlement charges." The issuance
of
our common shares in settlement of the litigation with Nanogen has been
accounted for as a nonmonetary transaction. Accordingly, included in "legal
settlement charges" in the consolidated statements of operations for the year
ended December 31, 2002 is a charge in the amount of $17.5 million based on
the
fair value of the CombiMatrix Corporation common shares issued to
Nanogen.
·
In
March
2004, we completed all phases of our research and development agreement with
Roche Diagnostics, GmbH ("
Roche
").
As a
result of completing all of our obligations under this agreement and in
accordance with our revenue recognition policies for multiple-element
arrangements, we recognized all previously deferred Roche related contract
revenues totaling $17.3 million.
·
In
December 2005, we completed all phases of our collaboration agreement with
Toppan Printing, Ltd. resulting in the recognition of previously deferred
collaboration related revenues totaling $2.3 million. Also in December 2005,
we
recorded a goodwill impairment charge related to investment in CombiMatrix
K.K.
and Advanced Material Sciences totaling $565,000.
·
Effective
January 1, 2006, we adopted the provisions of Statement of Financial Accounting
Standards No. 123 (revised 2004), "Share-Based Payment" ("SFAS No. 123R"),
which
sets forth the accounting requirements for "share-based" compensation payments
to employees and non-employee directors and requires all share based-payments
to
be recognized as expense in the statement of operations. The compensation cost
for all stock-based awards is measured at the grant date, based on the fair
value of the award (determined using a Black-Scholes option pricing model),
and
is recognized as an expense over the employee’s requisite service period
(generally the vesting period of the equity award). Prior to January 1, 2006,
we
accounted for stock-based awards under Accounting Principles Bulletin No. 25,
“Accounting for Stock Issued to Employees”, and related pronouncements. As a
result, only the statement of operations for the nine-months ended September
30,
2006, includes stock-based compensation expense recognized by us under SFAS
No
123R.
MANAGEMENT’S
DISCUSSION AND ANALYSIS OF
FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The
following discussion should be read in conjunction with our financial statements
included elsewhere in this registration statement. This discussion contains
forward-looking statements that involve risks and uncertainties. Our actual
results could differ materially from those anticipated in these forward-looking
statements as a result of various factors including those set forth under the
heading "Risk Factors" in this prospectus.
GENERAL
We
are
seeking
to become a broadly diversified biotechnology company, through the development
of proprietary technologies and products in the areas of drug development,
genetic analysis, nanotechnology research, defense and homeland security
markets, as well as other potential markets where our products could be
utilized. Among these technologies is a platform technology to rapidly produce
customizable arrays. Customizable arrays are semiconductor-based tools for
use
in identifying and determining the roles of genes, gene mutations and proteins.
This 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. Our other
technologies include proprietary molecular synthesis and screening methods
for
the discovery of potential new drugs. We currently recognize revenues from
selling these products and services and providing research and development
services for organizations including the U.S. Department of Defense and other
strategic partners such as Roche Diagnostics, GmbH, or Roche, Toppan Printing,
Ltd., or Toppan, and Furuno Electric Co., Ltd., or Furuno.
CombiMatrix
Molecular Diagnostics, Inc., ("
CMDX
")
our
wholly owned subsidiary located in Irvine, California, is exploring
opportunities for our arrays in the field of molecular diagnostics. This
subsidiary is currently focusing on research and development and has not yet
recognized revenues from its operations. CombiMatrix K.K., our previously wholly
owned Japanese corporation located in Tokyo, Japan, was created for the purposes
of exploring opportunities for CombiMatrix Corporation’s array system with
pharmaceutical and biotechnology companies in the Asian market. In January
2006,
we sold 67% of CombiMatrix K.K. to a third party. This subsidiary does not
engage in research and development activities.
RELATIONSHIP
WITH ACACIA RESEARCH CORPORATION
We
were
originally incorporated in October 1995 as a California corporation and later
reincorporated as a Delaware corporation in September 2000. On December 13,
2002, we merged with and became a wholly owned subsidiary of Acacia Research
Corporation, or "
Acacia
."
On the
same date, Acacia entered into a recapitalization transaction whereby Acacia
created two classes of registered common stock called Acacia
Research-CombiMatrix common stock ("
AR-CombiMatrix
stock
")
and
Acacia Research-Acacia Technologies common stock ("
AR-Acacia
Technologies stock
")
and
divided its existing Acacia common stock into shares of the two new classes
of
common stock. The AR-CombiMatrix stock was intended to reflect separately the
performance of the CombiMatrix Corporation and its subsidiaries, referred to
as
the
"CombiMatrix group,
"
whereas
the AR-Acacia Technologies stock was intended to reflect separately the
performance of Acacia’s technology business, referred to as "
Acacia
Technologies group
."
Upon
the redemption date, we will no longer be a subsidiary or an affiliate of
Acacia, and the holders of AR-CombiMatrix stock on the redemption date will
be
the stockholders of our company.
LIQUIDITY
At
September 30, 2006, we had cash and cash equivalents of $8.8 million and have
subsequently received $10.1 million in net proceeds from equity financings
executed subsequent to September 30, 2006. As a result, management anticipates
that our cash and cash equivalent balances, anticipated cash flows from
operations and other sources of funding from the capital markets will be
sufficient to meet our cash requirements through September 30, 2007. In order
for the Company to continue as a going concern beyond this point and ultimately
to achieve profitability, we will be required to obtain capital from external
sources, increase revenues and reduce operating costs. However, there can be
no
assurance that such capital will be available at times and at terms acceptable
to us, or that higher levels of product and service revenues will be achieved.
The issuance of additional equity securities will also cause dilution to our
shareholders. If external financing sources of financing are not available
or
are inadequate to fund our operations, we will be required to reduce operating
costs including research projects and personnel, which could jeopardize the
future strategic initiatives and business plans of the Company.
BASIS
OF PRESENTATION OF FINANCIAL STATEMENTS
The
consolidated financial statements included in this prospectus are consistent
with the CombiMatrix Group historical financial statements included in Acacia’s
regulatory filings and include the assets, liabilities, operating results and
cash flows of CombiMatrix Corporation using Acacia’s historical bases in the
assets and liabilities and the historical results of operations of CombiMatrix
Corporation. The consolidated financial statements also include allocations
of
certain Acacia corporate expenses, including governance, legal, accounting,
insurance services, treasury and other Acacia corporate and infrastructure
costs. The expense allocations have been determined on bases that we determined
with Acacia to be a reasonable reflection of the utilization of services
provided or the benefit received by us and are discussed in more detail
below.
OVERVIEW
OF RECENT BUSINESS ACTIVITIES
During
the nine months ended September 30, 2006, our operating activities were driven
by the execution of two new government contracts with the U.S. Department of
Defense (DoD) totaling $4.0 million to be recognized through 2008 as well as
the
execution of several new distribution agreements for our CustomArray
TM
products, both nationally and internationally. We launched our first 90K,
high-density array and array synthesizer in May of 2006 and also launched,
in
collaboration with Furuno Electric Co., Ltd., our QuadroCAS
TM
CustomArray synthesizer and made available new versions of our Influenza A
and
miRNA product offerings. Our diagnostics subsidiary, CMDX, received CLIA
certification over its diagnostics laboratory and subsequently launched our
first molecular diagnostic service using its Constitutional Genetic Array Test,
or CGAT during the second quarter of 2006 and recently received notice from
the
U.S. Food and Drug Administration, or FDA, that CMDX does not require regulation
covered by recent FDA guidelines covering certain of its diagnostic
assays.
Historically,
we have relied upon investing and financing activities to fund operating
activities. Net proceeds from investing and financing activities were
considerably lower for the nine months ended September 30, 2006, than for the
nine months ended September 30, 2005, and our cash and cash equivalent balances,
anticipated cash flows from operations and other existing sources of credit
may
not be sufficient to meet our operating capital requirements beyond September
30, 2007. As a result, we will be seeking additional sources of capital
including the issuance of debt and/or equity securities.
During
2005, our activities included the formation of a wholly owned subsidiary, CMDX
and the launch of its molecular diagnostics business for the purpose of
exploiting the opportunities in the molecular diagnostics market for our
technology. We executed several distribution agreements for our CustomArray
platform and related products with distributors in the United States, Asia
and
Australia. We also expanded our product offerings by launching a desktop version
of our DNA array synthesizer as well as new CustomArray™ catalog arrays,
including an influenza H5N1 array, sectored arrays and micro-RNA products.
In
the area of bio-defense, we continued progress on our $5.9 million contract
with
the Department of Defense, which was completed in December of 2005. As a result
of these activities, our research and development efforts were focused primarily
on completing our bio-defense contract, launching our molecular diagnostics
business as well as continuing development of new products and services based
on
our core array technology as well as making improvements to existing CustomArray
products launched during 2005 and earlier.
During
2004, our operating activities included the completion of our research and
development agreement with Roche, the execution of a two-year, $5.9 million
contract with the Department of Defense to further the development of our array
technology for the detection of biological and chemical threat agents, execution
of a multi-year collaboration agreement with Furuno Electric Co. to develop
a
bench-top DNA array synthesizer and the launch of CustomArray, our first
commercially available array platform. As a result of completing our research
and development agreement with Roche, our research and development programs
shifted to a number of externally and internally funded programs that support
the activities summarized above. With the completion of our obligations under
the Roche agreements, research and development expenses continued to decrease
in
2004 as compared to 2003, as efforts shifted to other research and development
programs. The decrease in research and development expenses was partially offset
by an increase in marketing and sales expenses related to the launch of our
CustomArray 902 DNA array platform in March 2004 and our CustomArray 12K DNA
expression array in July 2004.
During
2003, our operating activities included the receipt of significant payments
from
our strategic partners and licensees, including $9.8 million related to the
completion of certain milestones and delivery of prototype products and services
pursuant to agreements with Roche as well as an up-front payment and a milestone
payment totaling $2.4 million pursuant to an agreement with Toppan. We also
completed several Roche related research and development projects during the
third and fourth quarters of 2003, continued efforts with other strategic
partners and continued to focus on identifying new strategic relationships
with
the overall goal of maximizing the opportunities in the life sciences sector
that we believe will be created by commercializing our array
system.
CRITICAL
ACCOUNTING POLICIES
Our
consolidated financial statements are prepared in conformity with accounting
principles generally accepted in the United States of America. In preparing
these financial statements, we make assumptions, judgments and estimates that
can have a significant impact on amounts reported in our financial statements.
We base our assumptions, judgments and estimates on historical experience and
various other factors that we believe to be reasonable under the circumstances.
Actual results could differ materially from these estimates under different
assumptions or conditions. On a regular basis we evaluate our assumptions,
judgments and estimates and make changes accordingly.
We
believe that, of the significant accounting policies discussed in Note 2 to
our
consolidated financial statements, the following accounting policies require
our
most difficult, subjective or complex judgments:
|
·
|
accounting
for stock-based compensation;
|
|
·
|
accounting
for income taxes;
|
|
·
|
valuation
of long-lived and intangible assets and goodwill;
and
|
|
·
|
allocation
of corporate overhead costs from
Acacia.
|
We
discuss below the critical accounting assumptions, judgments and estimates
associated with these policies. Historically, our assumptions, judgments and
estimates relative to our critical accounting policies have not differed
materially from actual results. For further information on our critical
accounting policies, see Note 2 to the consolidated financial statements
included herein.
Revenue
Recognition
As
described below, significant management judgments must be made and used in
connection with the revenue recognized in any accounting period. Material
differences may result in the amount and timing of revenue recognized or
deferred for any period if management made different judgments.
In
general, we recognize revenue in accordance with Staff Accounting Bulletin
No.
104, "Revenue Recognition," or SAB No. 104, when (i) persuasive evidence of
an
arrangement exists, (ii) all obligations have been performed pursuant to the
terms of the agreement, (iii) amounts are fixed or determinable and (iv)
collectibility of amounts is reasonably assured.
Revenues
from government grants and contracts are recognized in accordance with
Accounting Research Bulletin ("ARB") No. 43, "Government Contracts," and related
pronouncements, such as Statement of Position 81-1, “Accounting for Performance
of Construction-Type and Certain Production-Type Contracts.” 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 the total contract costs. Actual
contract costs 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.
Significant
estimates, judgments and assumptions are required primarily in connection with
our accounting for multiple-element arrangements with strategic partners and
licensees.
We
account for revenues under multiple-element arrangements in accordance with
SAB
No. 104 and Emerging Issues Task Force Consensus, or EITF, Issue 00-21, "Revenue
Arrangements with Multiple Deliverables," and related pronouncements.
Arrangements with multiple elements or deliverables must be segmented into
individual units of accounting based on the separate deliverables only if there
is objective and verifiable evidence of fair value to allocate the consideration
received to the deliverables. Accordingly, revenues from multiple-element
arrangements involving license fees, up-front payments and milestone payments,
which are received and/or billable in connection with other rights and services
that represent our continuing obligations are deferred until all of the multiple
elements have been delivered or until objective and verifiable evidence of
the
fair value of the undelivered elements has been established. Upon establishing
objective and verifiable evidence of the fair value of the elements in
multiple-element arrangements, the fair value is allocated to each element
of
the arrangement, such as license fees or research and development projects,
based on the relative fair values of the elements. We determine the fair value
of each element in multiple-element arrangements based on objective and
verifiable evidence of fair value, which is determined for each element based
on
the prices charged when the similar elements are sold separately to third
parties. If objective and verifiable evidence of fair value of all undelivered
elements exists but objective and verifiable evidence of fair value does not
exist for one or more delivered elements, then revenue is recognized using
the
residual method. Under the residual method, the revenues from delivered elements
are not recognized until the fair value of the undelivered element or elements
have been determined. Significant contract interpretation is sometimes required
to determine the appropriate accounting, including whether the deliverables
specified in a multiple element arrangement should be treated as separate units
of accounting for revenue recognition purposes, and if so, how the price should
be allocated among the deliverable elements, when to recognize revenue for
each
element, and the period over which revenue should be recognized. Changes in
the
allocation of the sales price between delivered to undelivered elements might
impact the timing of revenue recognition, but would not change the total revenue
recognized on the contract.
Stock-based
Compensation Expense
Effective
January 1, 2006, Acacia and our company adopted the provisions of Statement
of
Financial Accounting Standards No. 123 (revised 2004), "Share-Based Payment"
("
SFAS
No. 123R
"),
which
is a revision of SFAS No. 123, "Accounting for Stock-Based Compensation." SFAS
No. 123R supersedes Accounting Principles Board ("
APB
")
Opinion No. 25, “Accounting for Stock Issued to Employees,” and amends SFAS No.
95, "Statement of Cash Flows." SFAS No. 123R sets forth the accounting
requirements for "share-based" compensation payments to employees and
non-employee directors and requires all share based-payments to be recognized
as
expense in the statement of operations. In March 2005, the SEC published Staff
Accounting Bulletin No. 107, which requires stock-based compensation to be
classified in the same expense line items as cash compensation (i.e. marketing,
general and administrative and research and development expenses). The
compensation cost for all stock-based awards is measured at the grant date,
based on the fair value of the award (determined using a Black-Scholes option
pricing model), and is recognized as an expense over the employee’s requisite
service period (generally the vesting period of the equity award). Determining
the fair value of stock-based awards at the grant date requires significant
estimates and judgments, including estimating the market price volatility of
our
classes of common stock and employee stock option exercise
behavior.
SFAS
No.
123R also requires stock-based compensation expense to be recorded only for
those awards expected to vest using an estimated pre-vesting forfeiture rate.
As
such, SFAS No. 123R requires us to estimate pre-vesting option forfeitures
at
the time of grant and reflect the impact of estimated pre-vesting option
forfeitures on compensation expense recognized. Estimates of pre-vesting
forfeitures must be periodically revised in
subsequent
periods
if
actual forfeitures differ from those estimates. We consider several factors
in
connection with our estimate of pre-vesting forfeitures including types of
awards, employee class, and historical pre-vesting forfeiture data. The
estimation of stock awards that will ultimately vest requires judgment, and
to
the extent that actual results differ from our estimates, such amounts will
be
recorded as cumulative adjustments in the period the estimates are revised.
If
actual
results differ significantly from these estimates, stock-based compensation
expense and our results of operations could be materially impacted.
Accounting
for Income Taxes
As
part
of the process of preparing our consolidated financial statements, we are
required to estimate our income taxes in each of the jurisdictions in which
we
operate. This process involves the estimating of our actual current tax exposure
together with assessing temporary differences resulting from differing treatment
of items, such as deferred revenue, amortization of intangibles and asset
depreciation for tax and accounting purposes. These differences result in
deferred tax assets and liabilities, which are included within our consolidated
balance sheet. We must then assess the likelihood that our deferred tax assets
will be recovered from future taxable income and to the extent we believe that
recovery is not likely, we must establish a valuation allowance. To the extent
we establish a valuation allowance or increase this allowance in a period,
we
must include an expense within the tax provision in the consolidated statement
of operations.
Management
judgment is required in determining our provision for income taxes, our deferred
tax assets and liabilities and our valuation allowance. We have recorded a
full
valuation allowance against our deferred tax assets of $44.2 million as of
December 31, 2005, due to uncertainties related to our ability to utilize our
deferred tax assets, primarily consisting of certain net operating losses
carried forward, before they expire. In assessing the need for a valuation
allowance, we have considered our estimates of future taxable income, the period
over which our deferred tax assets may be recoverable, our history of losses
and
our assessment of the probability of continuing losses in the foreseeable
future. In our estimate, any positive indicators, including forecasts of
potential future profitability of our businesses, are outweighed by the
uncertainties surrounding our estimates and judgments of potential future
taxable income. If actual results differ from these estimates or if we adjust
these estimates because we believe we would be able to realize these deferred
tax assets in the future, then an adjustment to the valuation allowance would
increase income in the period such determination was made. Any changes in the
valuation allowance could materially impact our financial position and results
of operations.
Valuation
of Long-lived and Intangible Assets and Goodwill
Goodwill
is evaluated for impairment using a fair value approach at the reporting unit
level annually, or earlier if an event occurs or circumstances change that
would
more likely than not reduce the fair value of a reporting unit below its
carrying amount. A reporting unit can be an operating segment or a business
if
discrete financial information is prepared and reviewed by management. Our
reporting units are CombiMatrix Corporation and two wholly owned subsidiaries,
Advanced Materials Sciences and CombiMatrix K.K. Under the impairment test,
if a
reporting unit’s carrying amount exceeds its estimated fair value, goodwill
impairment is recognized to the extent that the reporting unit’s carrying amount
of goodwill exceeds the implied fair value of the goodwill. The fair value
of
our reporting units are estimated using existing market prices for
AR-CombiMatrix stock as well as using discounted cash flows and other valuation
techniques. Significant judgments and estimates are required in determining
forecasted cash inflows and outflows, the timing of cash flows and discount
rates commensurate with the risks involved.
We
review
long-lived assets for impairment whenever events or changes in circumstances
indicate that the carrying amount of an asset may not be recoverable. Factors
we
consider important, which could trigger an impairment review include the
following:
|
·
|
significant
underperformance relative to expected historical or projected future
operating results;
|
|
·
|
significant
changes in the manner of our use of the acquired assets or the strategy
for our overall business;
|
|
·
|
significant
negative industry or economic
trends;
|
|
·
|
significant
adverse changes in legal factors or in the business climate, including
adverse regulatory actions or assessments;
and
|
|
·
|
significant
decline in our stock price for a sustained
period.
|
We
calculate estimated future undiscounted cash flows, before interest and taxes,
resulting from the use of the asset and our estimated value of the asset at
disposal and compare it to our carrying value of the asset in determining
whether impairment potentially exists. If a potential impairment exists, a
calculation is performed to determine the fair value of the long-lived asset.
This calculation is based on a valuation model and discount rate commensurate
with the risks involved. Third-party appraised values may also be used in
determining whether impairment potentially exists.
As
described above, in assessing the recoverability of goodwill and other
intangible assets, estimates of market values and projections regarding
estimated future cash flows and other factors are used to determine the fair
value of the respective assets. If these estimates or related projections change
in future periods, future goodwill impairment tests may result in a charge
to
earnings. In applying these accounting practices, we recognized a charge from
goodwill impairment of approximately $565,000 during the fourth quarter of
2005.
This amount represents the full amount of goodwill recognized by our company
as
a result of step-acquisitions of both Advanced Materials Sciences and
CombiMatrix K.K. in July 2003.
Allocation
of Corporate Overhead Costs from Acacia
Acacia
allocates the cost of corporate general and administrative services and
facilities between its subsidiaries and reporting groups generally based upon
utilization. For example, direct salaries, payroll taxes and fringe benefits
are
allocated to the groups based on the percentage of actual time incurred by
specific employees to total annual time available and direct costs including,
postage, insurance, legal fees, accounting and tax and other are allocated
to
the groups based on specific identification of costs incurred on behalf of
each
group. Other direct costs, including direct depreciation expense, computer
costs, general office supplies and rent are allocated to the groups based on
the
ratio of direct salaries to total salaries. Indirect costs, including indirect
salaries and benefits, investor relations, rent, general office supplies and
indirect depreciation are allocated to the groups based on the ratio of direct
salaries for each group to total direct salaries. Except as otherwise determined
by management, the allocated costs of providing such services and facilities
include, without limitation, all costs and expenses of personnel employed in
connection with such services and facilities, including, without limitation,
all
direct costs of such personnel, such as payroll, payroll taxes and fringe
benefit costs (calculated at the appropriate annual composite rate) and all
overhead costs and expenses directly related to such personnel and the services
or facilities provided by them. The corporate general and administrative
services and facilities allocated by Acacia include, without limitation, legal
services, accounting services (tax and financial), insurance and related
deductibles if applicable, employee benefit plans and administration, investor
relations, stockholder services and expenses relating to Acacia’s board of
directors. Corporate expenses totaling $894,000, $689,000 and $498,000 for
the
years ended December 31, 2003, 2004 and 2005, respectively, were allocated
to us
by Acacia.
Management
estimates and judgments are required with respect to the allocations of overhead
costs of Acacia to us. Had different assumptions and allocation methodologies
been used different accounting treatment for such costs may have been required.
Also, these allocations are not necessarily indicative of the actual costs
we
would have incurred had we been a separate, stand-alone entity, nor are they
necessarily indicative of the actual costs we will incur in the future for
similar corporate general and administrative costs as a separate, stand-alone
entity.
DISCUSSION
OF OPERATIONS, FINANCIAL RESOURCES AND LIQUIDITY
You
should read this discussion in conjunction with our financial statements and
related notes and the CombiMatrix 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.
See
Item
1. "Description of Business," for a general overview of our
business.
Results
of Operations - Nine Months Ended September 30, 2005 and 2006
Revenues
and Cost of Revenues
(In
thousands)
|
|
For
the Nine Months
|
|
|
|
Ended
September 30,
|
|
|
|
2005
|
|
2006
|
|
|
|
|
|
|
|
Government
contract
|
|
$
|
2,985
|
|
$
|
1,563
|
|
Cost
of government contract revenues
|
|
|
(2,820
|
)
|
|
(1,476
|
)
|
Service
contracts
|
|
|
108
|
|
|
268
|
|
Products
|
|
|
1,296
|
|
|
3,050
|
|
Cost
of product sales
|
|
|
(635
|
)
|
|
(973
|
)
|
Government
Contract and Cost of Government Contract Revenues.
The
decrease was due to greater efforts leading to the completion, in December
2005,
of our commitments under our previous two-year, $5.9 million research and
development contract with the DoD to further the development of our array
technology for the electrochemical detection of biological threat agents. In
February 2006, we executed a new one-year, $2.1 million contract with the DoD
to
further the development of its electrochemical detection system. Government
contract revenues and contract costs were lower during the nine months ended
September 30, 2006, as compared to the nine months ended September 30, 2005,
due
to the commencement of work under the new $2.1 million contract in February
2006, as compared to nine full months of activity under the previous $5.9
million contract during the prior year. In August 2006, we executed a new
two-year, $1.9 million contract with the DoD to integrate our electrochemical
detection technology with its microfluidics "lab-on-a-chip" technology for
national defense and homeland security applications. Efforts under the
microfluidics contract were not significant during the nine months ended
September 30, 2006.
Under
the
terms of our DoD contracts, we are reimbursed on a periodic basis for actual
costs incurred to perform our obligations, plus a fixed fee. 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. Cost of government contract revenues reflect research and development
expenses incurred in connection with our commitments under our current contracts
with the DoD, which were approximately 68% and 4% complete as of September
30,
2006 for the electrochemical detection and microfluidics contracts,
respectively. We expect to incur approximately $516,000 and $1.4 million in
future contract costs through the second quarter of 2008 in order to complete
our obligations to the DoD under our electrochemical detection and microfluidics
contracts, respectively.
Product
Revenues and Cost of Product Sales.
Product
revenues and costs of product sales relate to domestic and international sales
of our array products. Product revenues include the sale of DNA synthesizer
instruments and CustomArray 12K DNA expression arrays and related hardware
including array revenue from our diagnostics subsidiary, CMDX, during the nine
months ended September 30, 2006, compared to lower instrument and 12K DNA
expression array sales during the comparable 2005 period. The overall increase
in product revenues was due primarily to the increased product offerings
currently available to our customers, which includes 12K and 4X2K arrays, DNA
synthesizer and electrochemical detection reader instruments and related
hardware, as compared to only the 902 and 12K expression arrays and DNA
synthesizer instruments in the comparable 2005 period. For the nine months
ended
September 30, 2006, product revenues include $221,000 in array sales from our
diagnostics subsidiary, CMDX, compared to no sales in the comparable 2005
period. Revenues for the nine months ended September 30, 2006 included a higher
percentage of product revenues from the sale of DNA synthesizer and
electrochemical detection reader instruments.
Operating
Expenses
(In
thousands)
|
|
For
the Nine Months
|
|
|
|
Ended
September 30,
|
|
|
|
2005
|
|
2006
|
|
|
|
|
|
|
|
Research
and development expenses
|
|
$
|
4,082
|
|
$
|
7,380
|
|
Research
and Development Expenses
.
During
the nine months ended September 30, 2006 and 2005, we continued internal
research and development efforts to improve and expand our technology and
product offerings. The increase in internal research and development expenses
was due primarily to the development of higher density array products by us
as
well as the impact of our subsidiary, CMDX, which was formed and began research
and development activities in the second quarter of 2005 in the area of
diagnostic applications. In addition, research and development expenses include
$0 and $797,000 of stock-based compensation expense in the nine months ended
September 30, 2005 and 2006, respectively. The increase in 2006 was due to
the
adoption of SFAS No. 123R effective January 1, 2006.
Future
research and development expenses will continue to be incurred in connection
with the CombiMatrix group’s ongoing internal research and development efforts
in the areas of genomics, diagnostics, drug discovery and development. The
CombiMatrix group expects its research and development expenses to continue
to
fluctuate and such expenses could increase in future periods as additional
internal research and development agreements are undertaken and/or as new
research and development collaborations are executed with strategic
partners.
|
|
For
the Nine Months
|
|
|
|
Ended
September 30,
|
|
|
|
2005
|
|
2006
|
|
|
|
|
|
|
|
Marketing,
general and administrative expenses
|
|
$
|
7,345
|
|
$
|
9,691
|
|
Patent
amortization and royalties
|
|
|
951
|
|
|
1,075
|
|
Legal
settlement gains
|
|
|
(406
|
)
|
|
-
|
|
Equity
in loss of investee
|
|
|
202
|
|
|
786
|
|
Marketing,
General and Administrative Expenses
.
The
overall increase was due primarily to the full year’s impact of general and
administrative expenses incurred by CMDX in 2006, which commenced operations
in
the second quarter of 2005, as well as increased legal and accounting expenses
related mostly to costs associated with the planned split-off of CombiMatrix
Corporation from Acacia Research Corporation and stock-based compensation.
Marketing, general and administrative expenses include stock-based compensation
of $(146,000) and $959,000 in the nine months ended September 30, 2005 and
2006,
respectively. The increase in 2006 was due to the adoption of SFAS No. 123R
effective January 1, 2006. These increases were partially offset by a decrease
in marketing, sales and other expenses. A summary of the main drivers of the
change in marketing, general and administrative expenses for the periods
presented is as follows (in thousands):
|
|
For
the Nine Months Ended
|
|
|
|
September
30, 2005 vs. 2006
|
|
|
|
|
|
|
|
Decrease
in marketing and sales expenses
|
|
|
|
|
$
|
(836
|
)
|
Increase
in general and administrative expenses at CMDX
|
|
|
|
|
|
1,292
|
|
Increase
in legal, accounting and other professional fees
|
|
|
|
|
|
979
|
|
Increase
in non-cash stock compensation
|
|
|
|
|
|
1,105
|
|
Decrease
in other general and administrative expenses
|
|
|
|
|
|
(194
|
)
|
Patent
Amortization and Royalties.
Patent
amortization of $821,000 and $822,000 for the nine months ended September 30,
2005 and 2006, respectively, relates to the amortization of our patents
recognized from step acquisitions of CombiMatrix Corporation by Acacia in 2000
and 2002, which are being amortized over a weighted average useful life of
approximately 9 years. Royalty expense of $130,000 and $253,000 for the same
periods, respectively, relate to our September 2002 settlement agreement with
Nanogen, Inc., and are equal to 12.5% of payments made to us from sales of
certain products developed by us that are based on the patents that had been
in
dispute in the litigation with Nanogen, Inc. prior to settlement. The increase
in royalties expense for the periods presented is due to the corresponding
increase in product revenue payments for the period.
Legal
Settlement Gains.
In
connection with the September 2002 settlement agreement between CombiMatrix
Corporation, Dr. Donald Montgomery and Nanogen, we recognized a long-term
liability that reflects the fair value of AR-CombiMatrix common stock
potentially issuable to Nanogen in accordance with certain anti-dilution
provisions of the settlement agreement. Periodic charges and the related
liability are estimated based on the number of shares issuable and or
potentially issuable and the AR-CombiMatrix stock price at the end of the
respective reporting period. Changes in the legal settlement gains for nine
months ended September 30, 2005 are the result of valuing this liability to
market at each reporting date. This liability does not represent cash payments
due to Nanogen. The anti-dilution provisions of the settlement agreement expired
in September 2005 and as a result, there has been no activity recognized since
October 1, 2006.
Equity
in Loss of Investee.
As
of
September 30, 2005 and 2006, we owned 14% and 29%, respectively, of Leuchemix
Inc., or Leuchemix, a private drug development firm, which is developing several
compounds for the treatment of leukemia and other cancers. Our equity in the
losses of Leuchemix increased due to our increased ownership in Leuchemix as
well as an increase in expenses
incurred
by
Leuchemix. We are under a contractual commitment to increase our ownership
in
Leuchemix to approximately 33% during the fourth quarter of 2006 and as a
result, the equity in loss of Leuchemix is expected to increase in future
periods.
Other
Loss
on Sale of Investment.
In
January 2006, we expanded our relationship with one of our existing
distributors, InBio, for the Asia Pacific region. Major components of the
expanded relationship included the transfer of day-to-day operational
responsibility
and
majority
ownership of CombiMatrix K.K. to InBio, along with an expanded distribution
agreement that encompasses Japan. InBio obtained 67% of the voting interests
in
CombiMatrix K.K. for a nominal amount of consideration. As a result, InBio
assumed all operational and financial responsibilities of CombiMatrix K.K.
The
net loss on the sale of 67% of the voting interest in CombiMatrix K.K. was
$84,000. Subsequent to the sale, our investment in CombiMatrix K.K. was
accounted for under the equity method. The deconsolidation of CombiMatrix K.K.
did not have a material impact on our consolidated balance sheet as of
September
30, 2006
.
The
impact on the statement of operations resulting from the transition to the
equity method of accounting for our investment in CombiMatrix K.K. was not
material during the periods presented.
Warrant
Gains (Charges
).
In
accordance with SFAS No. 150, "Accounting for Certain Instruments with
Characteristics of Both Liabilities and Equity," or SFAS No. 150, and related
interpretations, certain AR-CombiMatrix stock purchase warrants outstanding
at
September 30, 2006 have been classified as a long-term liability due to certain
redemption provisions associated with the underlying AR-CombiMatrix stock.
Due
to declines in the fair value of AR-CombiMatrix common stock, the fair value
of
the stock purchase warrant liability decreased by $163,000 and $663,000 in
the
nine months ended September 30, 2005 and 2006, respectively. The related credits
are reflected in the statement of operations. Refer to Note 11 to the
CombiMatrix Corporation consolidated financial statements included elsewhere
herein.
Liquidity
and Capital Resources - Nine Months Ended September 30, 2005 and
2006
At
September
30, 2006
,
cash
and cash equivalents and short-term investments totaled $8.8 million compared
to
$20.3 million at December 31, 2005. Working capital at
September
30, 2006
,
was
$7.3 million, compared $19.2 million at December 31, 2005. The change in
working capital was due primarily to the impact of net cash flow activities
as
discussed below.
The
net
(decrease) increase in cash and cash equivalents for the nine months ended
September 30, 2005 and 2006, was comprised of the following (in
thousands):
|
|
For
the Nine Months
|
|
|
|
Ended
September 30,
|
|
|
|
2005
|
|
2006
|
|
Net
cash provided by (used in) continuing operations:
|
|
|
|
|
|
|
|
Operating
activities
|
|
$
|
(9,954
|
)
|
$
|
(11,476
|
)
|
Investing
activities
|
|
|
11,177
|
|
|
6,266
|
|
Financing
activities
|
|
|
12,969
|
|
|
2,220
|
|
Effect
of exchange rate on cash
|
|
|
35
|
|
|
-
|
|
Increase
(decrease) in cash and cash equivalents
|
|
$
|
14,227
|
|
$
|
(2,990
|
)
|
Cash
receipts from customers for the nine months ended September 30, 2006, were
$4.5
million, comprised of $2.6 million from the sale of array products and services
and $1.9 million in
payments
received from the Department of Defense
.
Cash
receipts in the comparable 2005 period totaled $4.1 million, comprised of $1.1
million from the sale of array products and related services and $3.0 million
in
electrochemical detection contract payments received from the Department of
Defense. Cash outflows from operations for the nine months ended September
30,
2006, increased to $16.3 million, as compared to $14.1 million in the comparable
2005 period, due primarily to an increase in research and development, marketing
general and administrative expenses related to CMDX as described above and
the
impact of the timing of vendor payments and related accruals.
The
net
cash flows provided by investing activities for the nine months ended September
30, 2005 and 2006 were due primarily to net sales of available-for-sale
investments in connection with ongoing short-term cash management activities.
For the nine months ending September 30, 2006, we incurred $495,000 of capital
expenditures and $1.4 million in purchasing of Leuchemix preferred stock, which
amounted to $1.1 million and $1.1 million, respectively, in the comparable
2005
period.
On
June
14, 2006, Acacia Research Corporation entered into a Standby Equity Distribution
Agreement (the "
SEDA
")
with
Cornell Capital Partners, LP ("Cornell"), providing up to $50 million of equity
financing from Cornell through the sale of up to 13,024,924 shares of
AR-CombiMatrix common stock through June 2008. For the nine months ended
September 30, 2006, we had received $2,207,000 in net proceeds in equity
financings
through
the sale of 2,019,646 shares of AR-CombiMatrix stock
under
the SEDA. For the nine months ended September 30, 2005, our financing activities
were composed primarily of two financing events. First, in July 2005, Acacia
Research Corporation sold 1,400,444 shares of AR-CombiMatrix stock
in
a
registered direct offering, generating net proceeds of approximately $3,114,000,
which were attributed to the CombiMatrix group. Second, in September 2005,
Acacia Research Corporation sold 6,385,907 shares of AR-CombiMatrix stock and
1,596,478 AR-CombiMatrix stock purchase warrants
in
a
registered direct offering, generating net proceeds of approximately $9,707,000,
which were also attributed to the CombiMatrix group.
We
do not
expect the decline in net proceeds from financing activities to continue. As
discussed below, we believe that we must raise additional capital to meet our
cash requirements over the next 12 months and as a result, net proceeds from
financing activities should increase significantly
if
we
are
able to meet our goals and objectives over the next 12 months.
Subsequent
to September 30, 2006, an additional 1,191,699 shares of AR-CombiMatrix common
stock were purchased by Cornell under the SEDA, generating net proceeds of
$863,000 attributed to the CombiMatrix group. In addition, on December 13,
2006,
Acacia completed a registered direct offering with Oppenheimer & Co., Inc.
or Oppenheimer, as the placement agent, raising gross proceeds of $9,964,000
through the issuance of 9,768,313 units. Each unit consists of one share of
AR-CombiMatrix common stock and 1.2 five-year common stock warrants, for a
total
of 9,768,313 shares and warrants to purchase 11,721,975 shares of AR-CombiMatrix
common stock, respectively, issued to investors. Net proceeds raised from the
private equity financing of $9,266,000 were attributed to us. The agreement
with
Cornell was also cancelled. For more information on the terms of these
agreements, please see Notes 15 and 16 of our Consolidated Financial Statements
included in this report.
We
believe that our cash and cash equivalent balances, anticipated cash flows
from
operations and external sources of funding from the capital markets will be
sufficient to meet our cash requirements through September 30, 2007. In order
for us to continue as a going concern beyond September 30, 2007, we will be
required to obtain capital from external sources. However, there can be no
assurances that we will be able to secure additional sources of financing at
times and at terms acceptable to us. The issuance of additional equity
securities will also cause dilution to the AR-CombiMatrix shareholders. If
external financing sources of financing are not available or are inadequate
to
fund our operations, we will be required to reduce our operating costs including
research projects and personnel, which could jeopardize our future strategic
initiatives and business plans. For example, reductions in research and
development activities and/or personnel at our Mukilteo, Washington facility
could result in the inability to invest the resources necessary to continue
to
develop next-generation products and improve existing product lines in order
to
remain competitive in the marketplace, resulting in reduced revenues and cash
flows from the sales of our CustomArray products and services. Also, reduction
in operating costs at our diagnostics subsidiary in Irvine, California, (CMDX),
should they occur, could jeopardize our ability to launch, market and sell
additional products and services necessary to order grow and sustain our
operations and eventually achieve profitability.
We
may
also encounter unforeseen difficulties that may deplete our capital resources
more rapidly than anticipated, including those set forth in our Risk Factors
included herein. 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.
Our
long-term capital requirements will be substantial and the adequacy of available
funds will depend upon many factors, including:
|
·
|
the
costs of commercialization activities, including sales and marketing,
manufacturing and capital
equipment;
|
|
·
|
our
continued progress in research and development
programs;
|
|
·
|
the
costs involved in filing, prosecuting, enforcing and defending any
patents
claims, should they arise;
|
|
·
|
our
ability to license technology;
|
|
·
|
competing
technological developments;
|
|
·
|
the
creation and formation of strategic
partnerships;
|
|
·
|
the
costs associated with leasing and improving our headquarters in Mukilteo,
Washington and in Irvine, California;
and
|
|
·
|
other
factors that may not be within our
control.
|
Pursuant
to the Tax Allocation Agreement, we have agreed not to take certain actions
for
two years following the split off, unless we obtain an IRS ruling or an opinion
of counsel to the effect that these actions will not affect the tax-free nature
of the split off. These actions include certain issuances of our stock, a
liquidation or merger of our company, and dispositions of assets outside the
ordinary course of our business. If any of these transactions were to occur,
the
split off could be deemed to be a taxable distribution to Acacia. In particular,
we have agreed to indemnify Acacia for any tax resulting from an acquisition
by
one or more persons of a 50% or greater interest in our company. For more
information about our liability under the Tax Allocation Agreement, please
refer
to the section titled "Relationship to Acacia Research Corporation After Split
Off."
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 2006.
Other than as set forth below, we have no committed lines of credit or other
committed funding or long-term debt. The following table lists our material
known future cash commitments as of
September
30, 2006
:
|
|
Payments
Due by Period (in thousands)
|
|
Contractual
Obligations
|
|
Remaining
2006
|
|
2007-2008
|
|
2009-2010
|
|
2011
and Thereafter
|
|
Operating
leases
|
|
$
|
472
|
|
$
|
3,552
|
|
$
|
-
|
|
$
|
-
|
|
Minimum
royalty payments
(1)
|
|
|
25
|
|
|
200
|
|
|
200
|
|
|
775
|
|
Leuchemix
equity purchases
(2)
|
|
|
750
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Total
contractual cash obligations
|
|
$
|
1,247
|
|
$
|
3,752
|
|
$
|
200
|
|
$
|
775
|
|
____________________________________
(1)
|
Refer
to Note 9 to the consolidated financial statements for a description
of
the September 30, 2002 settlement agreement between CombiMatrix
Corporation and Dr. Donald Montgomery and Nanogen.
|
(2)
|
Refer
to Note 5 to the consolidated financial statements for additional
information regarding the October 2004 Leuchemix
transaction.
|
Results
of Operations - Years Ended December 31, 2003, 2004 and 2005
Revenues
and Cost of Revenues (In thousands)
|
|
For
the Years Ended December 31,
|
|
|
|
2003
|
|
2004
|
|
2005
|
|
|
|
|
|
|
|
|
|
Collaboration
agreements
|
|
$
|
-
|
|
$
|
17,302
|
|
$
|
2,266
|
|
Government
contract
|
|
|
-
|
|
|
1,993
|
|
|
3,849
|
|
Cost
of government contract revenues
|
|
|
-
|
|
|
(1,874
|
)
|
|
(3,683
|
)
|
Service
contracts
|
|
|
49
|
|
|
116
|
|
|
153
|
|
Products
|
|
|
407
|
|
|
230
|
|
|
1,765
|
|
Cost
of product sales
|
|
|
(99
|
)
|
|
(173
|
)
|
|
(820
|
)
|
Collaboration
Agreements.
In March
2004, we completed all phases of our research and development agreement with
Roche. As a result of completing all obligations under this agreement and in
accordance with our revenue recognition policies for multiple-element
arrangements, we recognized $17.3 million of research and development contract
revenues during the first quarter of 2004, all of which were previously
deferred. The majority of research and development efforts under the Roche
agreement were incurred prior to 2004. During the fourth quarter of 2005, we
completed all obligations under our collaboration and supply agreement with
Toppan and as a result, we recognized all previously deferred payments from
Toppan as research and development contract revenues totaling $2.3 million.
Research and development activities and expenses related to the Toppan agreement
were incurred during the two-year term of the agreement, which was originally
executed in May 2003.
Government
Contract and Cost of Government Contract Revenues.
Under
the
terms of our contract with the Department of Defense, we were reimbursed on
a
periodic basis for actual costs incurred to perform our obligations, plus a
fixed fee. Revenues are recognized under the percentage-of-completion method
of
accounting, using the cost-to-cost approach to measure completeness at the
end
of the each reporting period. Cost of government contract revenues reflect
research and development expenses incurred in connection with our commitments
under this contract, which was completed as of December 31, 2005. Revenues
and
associated costs increased during 2005 compared to 2004 due to increased
activity on the contract and due to the fact that only nine months of activity
were incurred in 2004 versus a full year of activity in 2005. There are no
additional revenues or costs expected to be recognized from this contract in
future periods.
Service
Contracts.
Prior
to
2005, all service contract revenues were recognized by CombiMatrix K.K. from
existing array customers in Japan. As of December 31, 2004, the terms of these
contracts had expired. Costs incurred in connection with these services were
not
material. For the year ended December 31, 2005, s
ervice
contract revenues include
maintenance
and service contract fees relating to DNA array synthesizers sold during 2005.
Such service contracts are typically for twelve months, and the consideration
received is recognized ratably over the service period.
Product
Revenues and Cost of Product Sales
.
Product
revenues and cost of product sales during 2003 were recognized by CombiMatrix
K.K. from sales of prototype DNA array synthesizers and related array products
and services to Japanese research institutions. No additional sales of prototype
DNA array synthesizers have been sold by CombiMatrix K.K. subsequent to 2003.
Product revenues and costs of product sales during 2004 and 2005 relate to
domestic and international sales of our array products, including our
CustomArray
902 DNA array platform launched in March 2004, our CustomArray 12K DNA
expression array launched in July 2004 and our commercial DNA array synthesizer
instrument launched in August 2005. Our product revenues increased from 2004
to
2005 due primarily to a full year of array sales recognized in 2005 compared
to
only a partial year’s recognition in 2004 as well as the launch of our DNA array
synthesizer instrument in 2005.
Research
and Development Expenses
(In
thousands)
|
|
For
the Years Ended December 31,
|
|
|
|
2003
|
|
2004
|
|
2005
|
|
|
|
|
|
|
|
|
|
Research
and development expenses
|
|
$
|
8,564
|
|
$
|
5,385
|
|
$
|
5,783
|
|
Exclusive
of stock-based compensation expense, the decrease in research and development
expenses in 2004 as compared to 2003 was due primarily to our 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 2003, our
research
and development activities were driven primarily by ongoing performance
obligations under the product commercialization phase of our license and
research and development agreements with Roche. These activities include costs
associated with direct labor, supplies and materials, development of prototype
arrays and instruments and the use of outside consultants for certain
engineering efforts. As our obligations under this contract were completed
in
early 2004, the related research and development costs ceased, contributing
to
the decrease in research and development costs from 2003 to 2004. These costs
increased from 2004 to 2005, primarily due to the launch of the CustomArray
platform and continued launch of related array products, including our DNA
array
synthesizer instrument launched in August 2005. Research and development
activities at our wholly owned subsidiary, CombiMatrix Molecular Diagnostics,
which was formed in April of 2005, also contributed to the overall increase
in
research and development expenses for 2005.
In
addition, research and development expenses include $466,000, 91,000 and $0
of
stock-based compensation expense in the years ended December 31, 2003, 2004
and
2005, respectively.
With
the
completion of the research and development agreement with Roche, year-to-date
and future research and development expenses were and will continue to be
incurred in connection with our commitments under existing collaboration and
supply agreements with various strategic partners including Furuno, as well
as
ongoing internal research and development efforts in the areas of genomics,
molecular diagnostics, drug discovery and development. We expect our research
and development expenses to continue to be volatile and such expenses could
increase in future periods as additional contract and/or internal research
and
development projects are undertaken.
Other
Operating Expenses
(In
thousands)
|
|
For
the Years Ended December 31,
|
|
|
|
2003
|
|
2004
|
|
2005
|
|
|
|
|
|
|
|
|
|
Marketing,
general and administrative expenses
|
|
$
|
9,820
|
|
$
|
9,902
|
|
$
|
9,827
|
|
Patent
amortization and royalties
|
|
|
1,178
|
|
|
1,234
|
|
|
1,312
|
|
Legal
settlement charges (credits)
|
|
|
144
|
|
|
812
|
|
|
(406
|
)
|
Equity
in loss of of investee
|
|
|
-
|
|
|
17
|
|
|
352
|
|
Goodwill
impairment
|
|
|
-
|
|
|
-
|
|
|
565
|
|
Marketing,
General and Administrative Expenses.
Exclusive of stock-based compensation expense, the increase in 2004 as compared
to 2003, was due primarily to an increase in corporate professional fees related
to our Sarbanes-Oxley compliance projects of approximately $303,000 and an
increase in marketing and sales costs of approximately $447,000 related to
the
launch of our CustomArray DNA array platform beginning in March 2004 and overall
expansion of our sales and marketing division. The decrease in 2005 as compared
to 2004, was due primarily to the following items: (i) continued expansion
of
our sales force and marketing efforts, which increased by approximately $478,000
in 2005 compared to 2004; (ii) creation of CombiMatrix Molecular Diagnostics
in
2005, which added approximately $598,000 of marketing, general and
administrative expenses that were not incurred in 2004; and (iii) reduction
in
Sarbanes-Oxley compliance costs, business insurance, allocated overhead from
Acacia and other general and administrative costs of approximately $250,000.
Included in marketing, general and administrative expenses for the years ended
2003, 2004 and 2005 are corporate general and administrative overhead charges
of
$894,000, $689,000 and $498,000 respectively, that were allocated to us by
Acacia. See "Critical Accounting Policies" for a description of the management
allocation policies implemented.
In
addition, marketing, general and administrative expenses include $1.2 million,
$663,000 and $(159,000) of stock-based compensation expense in the years ended
December 31, 2003, 2004 and 2005, respectively. The overall decrease for the
years presented was primarily due to the accelerated method of stock
compensation amortization utilized, which results in higher amounts of
amortization in the earlier vesting periods and the impact of stock compensation
expense reversals related to the forfeiture of certain unvested stock options
during the respective periods. Deferred stock compensation amounts were fully
amortized as of December 31, 2004. Compensation credits recognized in 2005
were
from stock options issued to consultants at fair value using the Black-Scholes
option-pricing model. Future charges (credits) from non-employee stock option
awards are expected to be volatile due to changes in the market price of our
publicly traded common stock.
Patent
Amortization and Royalties.
Patent
amortization of $1,095,000, $1,096,000 and $1,095,000 for the years ended
December 31, 2003, 2004 and 2005, respectively, relates to the amortization
of
our patents recognized from step acquisitions of CombiMatrix Corporation by
Acacia in 2000 and 2002, which are being amortized over a weighted average
useful life of approximately 9 years. Royalty expense of $83,000, $138,000
and
$217,000 for the same periods, respectively, relate to our September 2002
settlement agreement with Nanogen, Inc., and are equal to 12.5% of payments
made
to us from sales of certain products developed by us that are based on the
patents that had been in dispute in the litigation with Nanogen, Inc. prior
to
settlement. The increase in royalties expense for the years presented is due
to
the corresponding increase in product revenue payments for the
period.
Legal
Settlement Charges (Credits)
.
In
connection with the September 2002 settlement agreement between CombiMatrix
Corporation, Dr. Donald Montgomery and Nanogen, we recognized a long-term
liability that reflects the fair value of AR-CombiMatrix common stock
potentially issuable to Nanogen in accordance with certain anti-dilution
provisions of the settlement agreement. Periodic charges and the related
liability are estimated based on the number of shares issuable and or
potentially issuable and the AR-CombiMatrix stock price at the end of the
respective reporting period. Changes in the legal settlement charges (credits)
for all years presented are the result of valuing this liability to market
at
each reporting date. This liability does not represent cash payments due to
Nanogen. The anti-dilution provisions of the settlement agreement expired in
September 2005 and as a result, future legal settlement charges (credits) are
expected to be $0.
Equity
in Loss of Investee
.
As
December 31, 2004 and 2005, we owned 3% and 19%, respectively, of Leuchemix
Corporation, a private drug development firm, which is developing several
compounds for the treatment of leukemia and other cancers. Our equity in the
losses of Leuchemix has increased due to our increased ownership in Leuchemix
as
well as increased expenses incurred by Leuchemix. We are under contractual
commitment to increase our ownership to approximately 33% during 2006 and as
a
result, we expect our equity in loss of Leuchemix to increase.
Goodwill
Impairment
.
We
recognized a charge from goodwill impairment of approximately $565,000 during
the fourth quarter of 2005, related to our Advanced Materials Sciences and
CombiMatrix K.K. reporting units. These reporting units were tested for
impairment in the fourth quarter of 2005 in connection with our annual
forecasting process. Due to the lack of third-party research and development
funding for Advanced Materials Sciences and declining array product sales at
CombiMatrix K.K., operating profits and cash flows were lower than expected
during the preceding three quarters. Based on these trends, the operating
forecasts for 2006 were revised downward, resulting in the goodwill impairment
charge.
Other
Non-Operating Income
Interest
income.
We
earn
interest on our cash, cash equivalents and short-term investments. Interest
income has been increasing primarily due to rising market interest
rates.
Warrant
Credits.
In
accordance with SFAS No. 150, "Accounting for Certain Instruments with
Characteristics of Both Liabilities and Equity," or SFAS No. 150, and related
interpretations, certain AR-CombiMatrix stock purchase warrants outstanding
at
December 31, 2005, which were issued in connection with equity financings in
May
2003 and September 2005, have been classified as a long-term liability due
to
certain redemption provisions associated with the underlying AR-CombiMatrix
stock. Changes in the fair value of the stock purchase warrant liability are
reflected in the consolidated statement of operations. There were no such
warrant liabilities and thus no related charges or credits for 2003 or
2004.
Liquidity
and Capital Resources
At
December 31, 2004, cash, cash equivalents and short-term investments totaled
$23.7 million, compared to $20.3 million at December 31, 2005. Working capital
was $22.1 million at December 31, 2004, compared to $19.2 million at December
31, 2005. Working capital decreased in 2005 primarily due to the reduction
in
cash, cash equivalents and short-term investments.
The
change in cash and cash equivalents for the years ended December 31, 2003,
2004
and 2005 was comprised of the following (in thousands):
|
|
For
the Years Ended December 31,
|
|
|
|
2003
|
|
2004
|
|
2005
|
|
Net
cash provided by (used in) continuing operations:
|
|
|
|
|
|
|
|
Operating
activities
|
|
$
|
(3,910
|
)
|
$
|
(11,584
|
)
|
$
|
(13,643
|
)
|
Investing
activities
|
|
|
(1,996
|
)
|
|
(8,448
|
)
|
|
3,390
|
|
Financing
activities
|
|
|
6,435
|
|
|
19,227
|
|
|
12,914
|
|
Effect
of exchange rate on cash
|
|
|
(13
|
)
|
|
(17
|
)
|
|
72
|
|
Increase
(decrease) in cash and cash equivalents
|
|
$
|
516
|
|
$
|
(822
|
)
|
$
|
2,733
|
|
The
increase in net cash outflows from operations in 2004 compared to 2003, was
due
primarily to a decrease in operating cash receipts from customers, which totaled
$3.0 million in 2004, comprised of $1.7 million from the Department of Defense,
$1.0 million from Furuno and $265,000 from the sale of array products and
related services, compared to $12.8 million in the comparable 2003 period,
consisting primarily of $9.8 million related to the completion of certain
milestones and delivery of prototype products and services pursuant to its
agreements with Roche and an up-front payment of $1.0 million and a $1.4 million
milestone payment pursuant to its agreement with Toppan. The decrease in
payments from customers was partially offset by the decrease in operating
expenses and the impact of the timing of the receipt of payments from customers
and payments to vendors.
The
increase in net cash outflows from operations in 2005 compared to 2004 was
due
primarily to an increase in operating expenses totaling $18.9 million in 2005
compared to $14.7 million in 2004. This increase was due primarily to increased
research and development and general and administrative costs incurred as
discussed above, as well as the net impact of the timing of the receipt of
payments from customers and payments to vendors. The increase in cash outflows
from operating expenses was partially offset by an increase in cash receipts
from customers, which totaled $5.3 million in 2005 compared to $3.0 million
in
2004. The primary reason for the increase was due to increased activity under
our 2-year government contract resulting in billings and cash payments during
2005 of $3.6 million as compared to $1.7 million in 2004, as well as increased
sales and related cash receipts from CustomArray customers totaling $1.7 million
in 2005 compared to $113,000 in 2004.
The
change in net cash flows used in investing activities for all periods presented
was due primarily to our ongoing short term cash management activities and
changes in short term investments in connection with certain financing
activities discussed below. Fixed asset purchases were $83,000, $810,000, and
$1.3 million in 2003, 2004 and 2005, respectively. Investments made in the
preferred stock of Leuchemix, Inc. were $250,000 and $1.6 million in 2004 and
2005, respectively.
The
change in net cash inflows from financing activities allocated to us from Acacia
in 2004 compared to 2003, was due to the completion of an equity financing
which
raised net proceeds of approximately $13.7 million through the sale of
AR-CombiMatrix stock during 2004, compared to equity financing net proceeds
of
$4.9 million during the comparable 2003 period. Financing activities in 2004
also included proceeds from the exercise of AR-CombiMatrix warrants and stock
options, totaling $5.1 million, compared to $1.0 million in the comparable
2003
period. During 2005, Acacia financing activities of AR-CombiMatrix stock totaled
$12.7 million, net of certain transaction fees, were allocated to the
company.
To
date,
we have relied primarily upon selling equity securities as well as payments
from
strategic partners to generate the funds needed to finance the implementation
of
the company’s business strategies. We cannot assure that we 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 we cannot assure 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 its business
strategies and its business may suffer.
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 2006.
Other than as set forth below, we have no committed funding or long-term debt.
The following table lists our material known future cash commitments as of
December 31, 2005:
|
|
Payments
Due by Period (in thousands)
|
|
Contractual
Obligations
|
|
2006
|
|
2007-2008
|
|
2009-2010
|
|
2011
and
Thereafter
|
|
Operating
leases
|
|
$
|
1,886
|
|
$
|
3,552
|
|
$
|
-
|
|
$
|
-
|
|
Minimum
royalty payments
(1)
|
|
|
100
|
|
|
200
|
|
|
200
|
|
|
775
|
|
Leuchemix
equity purchases
(2)
|
|
|
2,150
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Total
contractual cash obligations
|
|
$
|
4,136
|
|
$
|
3,752
|
|
$
|
200
|
|
$
|
775
|
|
_____________________
|
(1)
|
Refer
to Note 9 to our consolidated financial statements for a description
of
the September 30, 2002 settlement agreement between CombiMatrix
Corporation, Dr. Donald Montgomery and
Nanogen.
|
|
(2)
|
See
Note 6 to our consolidated financial statements for additional information
regarding our investment in
Leuchemix.
|
Inflation
Inflation
has not had a significant impact on the company in the current or prior periods
presented.
RECENT
ACCOUNTING PRONOUNCEMENTS
Refer
to
Note 2 of our consolidated financial statements included elsewhere
herein.
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Our
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 our investments are in short-term debt
securities issued by the U.S. treasury and by U.S. corporations as well as
auction market securities. The primary objective of our investment activities
is
to preserve principal while at the same time maximizing the income we receive
without significantly increasing risk. To minimize risk, we maintain our
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, auction market securities and
money market funds. Due to the nature of our short-term investments, we do
not
believe that we are subject to any material or significant market risk
exposure.
At
December 31, 2004 and 2005, we had certain assets and liabilities denominated
in
Japanese Yen as a result of consolidating our wholly owned subsidiary,
CombiMatrix K.K. However, due to the relative insignificance of those amounts,
we do not believe that we have significant exposure to foreign currency exchange
rate risks. We do not currently use derivative financial instruments to mitigate
this exposure.
MARKET
PRICE OF AND DIVIDENDS ON COMMON EQUITY
AND
RELATED STOCKHOLDER MATTERS
RECENT
MARKET PRICES
Acacia
Research Corporation’s two classes of common stock, AR-CombiMatrix stock and
AR-Acacia Technologies stock, commenced trading on the Nasdaq Stock Market
on
December 16, 2002. The historical market prices reported below are those of
the
AR-CombiMatrix stock which will be redeemed for our common stock on the
redemption date. AR-CombiMatrix stock is listed on the Nasdaq National Market
System under the symbol "CBMX," and we have applied to list our common stock
on
the American Stock Exchange following the redemption under the same
symbol.
The
market for AR-CombiMatrix common stock has historically experienced extreme
price and volume fluctuations during certain periods. These broad market
fluctuations and other factors, such as new product developments and trends
in
our industry and the investment markets generally, as well as economic
conditions and quarterly variations in our results of operations, may adversely
affect the market price of our common stock.
The
high
and low bid prices for AR-CombiMatrix stock as reported by Nasdaq for the
periods indicated are as follows. Such prices are inter-dealer prices without
retail markups, markdowns or commissions and may not necessarily represent
actual transactions.
|
|
2004
|
|
2005
|
|
2006
|
|
|
|
First
Quarter
|
|
Second
Quarter
|
|
Third
Quarter
|
|
Fourth
Quarter
|
|
First
Quarter
|
|
Second
Quarter
|
|
Third
Quarter
|
|
Fourth
Quarter
|
|
First
Quarter
|
|
Second
Quarter
|
|
Third
Quarter
|
|
High
|
|
$
|
9.30
|
|
$
|
6.99
|
|
$
|
4.85
|
|
$
|
4.39
|
|
$
|
4.08
|
|
$
|
3.05
|
|
$
|
2.60
|
|
$
|
2.59
|
|
$
|
2.90
|
|
$
|
2.75
|
|
$
|
1.68
|
|
Low
|
|
$
|
3.16
|
|
$
|
3.10
|
|
$
|
2.52
|
|
$
|
2.71
|
|
$
|
2.14
|
|
$
|
2.15
|
|
$
|
1.55
|
|
$
|
1.29
|
|
$
|
1.34
|
|
$
|
1.45
|
|
$
|
0.96
|
|
On
December 15, 2006, there were approximately * owners of record of AR-CombiMatrix
stock. The majority of the outstanding shares of AR-CombiMatrix stock are held
by a nominee holder on behalf of an indeterminable number of ultimate beneficial
owners.
DIVIDEND
POLICY
To
date,
we have not declared or paid any cash dividends with respect to our capital
stock, and the current policy of the board of directors is to retain earnings,
if any, to provide for the growth of CombiMatrix Corporation. Consequently,
we
do not expect to pay any cash dividends in the foreseeable future. Further,
there can be no assurance that our proposed operations will generate revenues
and cash flow needed to declare a cash dividend or that we will have legally
available funds to pay dividends.
DIRECTORS
AND EXECUTIVE OFFICERS
The
following table sets forth certain information regarding our executive officers
and directors as of December 15, 2006:
Name
|
Age
|
Position
|
Date
first elected or appointed
|
|
|
|
|
Amit
Kumar, Ph.D
|
41
|
Chairman,
President and Chief Executive Officer, Director
|
September,
2001
|
|
|
|
|
Brooke
Anderson, Ph.D
|
43
|
Chief
Operating Officer, Director
|
February,
2004
|
|
|
|
|
Scott
Burell, CPA
|
41
|
Chief
Financial Officer, Secretary and Treasurer
|
November,
2006
|
|
|
|
|
Andrew
McShea, Ph.D
|
35
|
Vice
President, Biology and Chemistry
|
February,
2005
|
|
|
|
|
Michael
Tognotti
|
33
|
Vice
President, Sales and Marketing
|
April
4, 2005
|
|
|
|
|
Thomas
Akin (1)
|
54
|
Director
|
November,
2006
|
|
|
|
|
Rigdon
Currie (2)
|
76
|
Director
|
November,
2006
|
|
|
|
|
John
Abeles, MD (3)
|
61
|
Director
|
November,
2006
|
(1)
Member of our Audit Committee (financial expert), Compensation Committee
and Nominating and Governance Committee.
(2)
Member of our Audit Committee, Compensation Committee and Nominating and
Governance Committee.
(3)
Member of our Audit Committee, Compensation Committee and Nominating and
Governance Committee.
Our
directors are elected at each annual general meeting and hold office until
the
next annual general meeting or until their successors are
appointed.
BUSINESS
EXPERIENCE
The
following is a brief account of the education and business experience during
at
least the past five years of each director and executive officer, indicating
the
principal occupation during that period, and the name and principal business
of
the organization in which such occupation and employment were carried
out.
Amit
Kumar, Ph.D.
Chief
Executive Officer, President & Director
Dr.
Kumar
has been President and CEO since September 2001, and has been a Director since
September 2000. Previously, Dr. Kumar was Vice President of Life Sciences of
Acacia Research Corp. (NASDAQ: ACRI). From January 1999 to February 2000, Dr.
Kumar was the founding President and Chief Executive Officer of Signature
BioSciences, Inc., a life science company developing technology for advanced
research in genomics, proteomics and drug discovery. From January 1998 to
December 1999, Dr. Kumar was an Entrepreneur in Residence with Oak Investment
Partners, a venture capital firm. From October 1996 to January 1998, Dr. Kumar
was a Senior Manager at IDEXX Laboratories, Inc., a biotechnology company.
From
October 1993 to September 1996, Dr. Kumar was Head of Research & Development
for Idetek Corporation, which was later acquired by Idexx Laboratories, Inc.
Dr.
Kumar received his bachelor’s degree in chemistry from Occidental College. After
joint studies at Stanford University and the California Institute of Technology,
he received his Ph.D. from Caltech in 1991. He also completed a post-doctoral
fellowship at Harvard University in 1993. Dr. Kumar also serves as a director
of
Aeolus Pharmaceuticals.
Brooke
Anderson, Ph.D.
Chief
Operating Officer & Director
Dr.
Anderson has been Chief Operating Officer since February 2004. >From April
2003 through March 2004, Dr. Anderson served as our Vice President, Software
Development and Engineering. From April 2000 through April 2003, Dr. Anderson
served as our Vice President, Software Development. Dr. Anderson also served
as
the company’s first President from October 1995 to January 1997. Prior to
joining CombiMatrix, Dr. Anderson co-founded Acacia Research Corporation, and
from January 1993 to August 1997, served as Acacia’s Vice President, Research
and Development. Dr. Anderson received a B.S.E. in nuclear engineering from
the
University of Michigan in 1985, an M.S. in applied physics from the California
Institute of Technology in 1987, and a Ph.D. in computation and neural systems
from the California Institute of Technology in 1993.
Scott
Burell, CPA (Inactive)
Chief
Financial Officer
Mr.
Burell was promoted to Chief Financial Officer in November 2006. Previously,
he
served as Vice President of Finance from November 2001 through November 2006,
and as the company’s Controller from February 2000 through November 2001. From
May 1999 to February 2001, Mr. Burell served as the Controller for Network
Commerce, Inc., a publicly traded technology and infrastructure company located
in Seattle. Prior to May 1999, Mr. Burell spent 9 years with Arthur Andersen’s
Audit and Business Advisory practice in Seattle. Mr. Burell is a certified
public accountant in the state of Washington (currently inactive) and holds
Bachelor of Sciences degrees in Accounting and Business Finance from Central
Washington University. Mr. Burell is a member of the American Institute and
Washington Society of Certified Public Accountants.
Andrew
McShea, Ph.D.
Vice
President, Biology and Chemistry
Dr.
McShea has been with CombiMatrix since 2000, serving as a Senior Scientist
and
Business Development Manager prior to his current position as Vice President
of
Biology and Chemistry beginning in 2004. Dr. McShea has over 10 years of
experience in the Life Sciences industry, ranging from drug discovery at
Novartis and Bristol-Myers Squibb Pharmaceuticals to basic research at the
Fred
Hutchinson Cancer Research Center in Seattle, Washington. Dr. McShea received
his Ph.D. in 1996 studying transplantation immunology at Harvard Medical School
and the University of Vienna, Austria. He also holds a B.Sc. in Cell Biology
from the University of Wales, UK.
Michael
Tognotti
Vice
President, Sales and Marketing
Mr.
Tognotti has been at CombiMatrix since May 2004. Mr. Tognotti has over 10 years
of Life Sciences industry experience. Prior to joining CombiMatrix, Mr. Tognotti
was Western Regional Sales Manager for Illumina, a genomic tools developer
for
the large-scale analysis of genetic variation and function, from March 2001
to
May 2004. From 1995 to 2001, Mr. Tognotti served in several senior sales and
marketing positions at Fisher Scientific and Operon Technologies. Mr. Tognotti
received his Bachelor of Science in Molecular and Cellular Biology from the
University of Arizona.
Thomas
Akin
Director
Mr.
Akin
has served as a Director of Acacia Research Corp. since May 1998 and was also
a
member of our Board prior to the merger with Acacia in December 2002. Mr. Akin
has been the Managing General Partner of four private investment funds (Talkot
Partners I, Talkot Partners II, LLC, Talkot Crossover Fund, L.P., and Talkot
Capital) since 1996. Mr. Akin previously served in a variety of capacities
for
Merrill Lynch and Co., including Managing Director of Western Regional Sales
from 1986 - 1994. Mr. Akin holds a B.A. from the University of California at
Santa Cruz and attended the University of California at Los Angeles Graduate
School of Business. Mr. Akin also serves as a director of Dynex Capital,
Inc.
Rigdon
Currie
Director
Mr.
Currie has served as a Director of Acacia Research Corporation since January
2003 and was also a member of our Board from March 1997 until the merger with
Acacia in December 2002. Since July 1999, Mr. Currie has been an independent
venture capital consultant. From February 1993 to July 1998, Mr. Currie was
a
partner of MK Global Ventures, a venture capital limited partnership. Mr. Currie
received a B.S.I.E. from the Georgia Institute of Technology and an M.B.A.
from
Harvard Business School.
John
H. Abeles, MD
Director
Dr.
Abeles is the founder of MedVest, Inc., which has provided consulting services
to health care and high technology companies since 1980 and where he has served
as President since 1982. Since 1998, he has served as Chairman of UniMedica
Inc., a web-enabled Medical School education consulting and publishing firm.
Since 1992, Dr. Abeles has been the general partner of Northlea Partners, Ltd.,
an investment and venture capital firm. Since 1998, he has also served as
Assistant Professor, Clinical Pharmacology and Therapeutics at the International
University of Health Sciences. Dr. Abeles has been a member of the Boards of
Directors of the following companies since the date noted: CombiMatrix Molecular
Diagnostics, Inc. (1996), DUSA Pharmaceuticals, Inc. (1995), I-Flow Corporation
(1987), and Oryx Technology (1989). Since 1997, Dr. Abeles has served as a
Director of Higuchi Bio-Science Institute, University of Kansas, and since
2001
has served as Director of College of Chemistry Advisory Board, University of
California Dr. Abeles joined our Board of Directors in December 2006, and has
served on our CombiMatrix Scientific Advisory Board since June
2006.
FAMILY
RELATIONSHIPS
There
are
no family relationships between any of our company’s directors or executive
officers
.
INVOLVEMENT
IN CERTAIN LEGAL PROCEEDINGS
None
of
our directors, executive officers, promoters or control persons have been
involved in any of the following events during the past five years:
1
.
any
bankruptcy petition filed by or against any business of which such person was
a
general partner or executive officer either at the time of the bankruptcy or
within two years prior to that time;
2.
any
conviction in a criminal proceeding or being subject to
a
pending
criminal proceeding (excluding traffic violations and other minor
offences);
3.
being
subject to any order, judgment, or decree, not subsequently reversed, suspended
or vacated, of any court of competent jurisdiction, permanently or temporarily
enjoining, barring, suspending or otherwise limiting his involvement in any
type
of business, securities or banking activities; or
4.
being
found by a court of competent jurisdiction (in a civil action), the
Commission
or the Commodity Futures Trading Commission to have violated a federal or state
securities or commodities law, and the judgment has not been reversed,
suspended, or vacated.
COMPENSATION
OF DIRECTORS
Directors
who are also employees of our company receive no additional compensation from
our company for their service as members of the Board. Non-employee directors
receive a nondiscretionary grant of options to purchase 30,000 shares of the
company’s common stock upon initially joining the Board and will receive annual
non-discretionary option grants to purchase 30,000 shares of CombiMatrix
stock while serving as members of the Board. All such grants will be priced
at
an exercise price equal to the closing market price on the date of grant and
will vest in four equal quarterly installments over a 12-month period from
the
grant date.
Non-employee
directors receive compensation in the amount of $1,500 per month for their
services as members of the Board. In addition, non-employee directors receive
$1,000 for each meeting of the Board or of any committee of the Board attended
in person, $1,000 for each meeting attended by telephone if the meeting is
longer than one hour in length, and $500 for each meeting attended by telephone
if the meeting is one hour or less in length, except that no compensation shall
be received for each Compensation or Nominating and Governance Committee meeting
attended that immediately precedes or follows a meeting of the Board. Directors
are also reimbursed for any out-of-pocket expenses incurred in connection with
attendance at meetings or committees of the Board and in connection with the
performance of Board duties.
BOARD
OF DIRECTORS
Our
board
of directors consists of five directors. In accordance with applicable SEC
and
the American Stock Exchange rules, the majority of our board of directors is
independent. The independent directors are Thomas Akin, Rigdon Currie and John
Abeles, MD.
COMMITTEES
OF THE BOARD OF DIRECTORS
Pursuant
to authority granted in our bylaws, our board of directors has established
an
Audit Committee, a Compensation Committee and a Nominating and Governance
Committee. The membership and function of each committee of our board of
directors is described below.
Audit
Committee
.
The
members of our Audit Committee are be Messrs. Akin, Currie and Abeles. Our
Audit
Committee is responsible for reviewing our internal accounting and auditing
controls and procedures, reviewing our audit and examination results and
procedures and consulting with our management and our independent registered
public accounting firm prior to the presentation of our financial statements
to
stockholders. Among other functions, our Audit Committee is responsible for
the
appointment, compensation, retention and oversight of the work of our
independent registered public accounting firm, and review the independence
of
our independent registered public accounting firm as a factor in making these
determinations.
All
members of our Audit Committee will meet the requirements for financial literacy
under the applicable rules of Amex. Our board has determined that Mr. Akin
is an
audit committee financial expert as defined under the applicable rules of the
SEC and has the requisite financial sophistication as defined under the
applicable rules of Amex. We believe that all of the members of the Audit
Committee meet the independence requirements under applicable SEC and Amex
rules. The Audit Committee will operate pursuant to a written charter that
satisfies applicable SEC and Amex rules.
Compensation
Committee
.
The
members of our Compensation Committee are Messrs. Currie, Akin and Abeles.
Our
Compensation Committee is responsible for establishing goals and objectives
for
our chief executive officer and other executive officers and reviewing and
making recommendations to our board of directors concerning salaries and
incentive compensation for our directors, officers and employees.
Nominating
and Governance Committee
.
The
members of our Nominating and Governance Committee are Messrs. Currie, Akin
and
Abeles. Our Nominating and Governance Committee is responsible for monitoring
the size and composition of the Board, considering and making recommendations
to
the Board with respect to the nominations or elections of directors of the
Corporation, developing and recommending to the Board a set of corporate
governance principles and overseeing and administering our Code of
Ethics.
EXECUTIVE
COMPENSATION
EXECUTIVE
OFFICER COMPENSATION
The
following table sets forth information concerning all cash and non-cash
compensation earned for services rendered in all capacities to our company
during the last three fiscal years for (a) the company’s Chief Executive Officer
and (b) the four most highly compensated executive officers, other than the
Chief Executive Officer, whose annual cash compensation exceeded $100,000 in
the
last fiscal year. The listed individuals are referred to as our "Named Executive
Officers."
Summary
Compensation Table
|
|
|
|
|
|
Annual
Compensation
|
|
Name
and Principal Position
|
|
Year
|
|
Salary
($)
|
|
Bonus
($)
|
|
Other
Annual Compensation
($)
|
|
Amit
Kumar, Ph.D. CEO & President
|
|
|
2003
|
|
|
310,698
|
|
|
57,500
|
|
|
-
|
|
|
|
|
2004
|
|
|
382,993
|
|
|
24,000
|
|
|
-
|
|
|
|
|
2005
|
|
|
398,755
|
|
|
-
|
|
|
-
|
|
Jeffrey
Oster, Sr. VP Intellectual Property
and
Associate General Counsel (1)
|
|
|
2003
|
|
|
188,729
|
|
|
-
|
|
|
-
|
|
|
|
|
2004
|
|
|
194,555
|
|
|
-
|
|
|
-
|
|
|
|
|
2005
|
|
|
197,951
|
|
|
-
|
|
|
-
|
|
Brooke
Anderson, Ph.D, COO
|
|
|
2003
|
|
|
147,566
|
|
|
-
|
|
|
-
|
|
|
|
|
2004
|
|
|
165,558
|
|
|
-
|
|
|
-
|
|
|
|
|
2005
|
|
|
175,362
|
|
|
-
|
|
|
-
|
|
Scott
Burell, CPA, CFO
|
|
|
2003
|
|
|
132,266
|
|
|
-
|
|
|
-
|
|
|
|
|
2004
|
|
|
148,656
|
|
|
-
|
|
|
-
|
|
|
|
|
2005
|
|
|
154,702
|
|
|
-
|
|
|
-
|
|
Andrew
McShea, Ph.D VP Biology & Chemistry
|
|
|
2003
|
|
|
103,363
|
|
|
3,370
|
|
|
-
|
|
|
|
|
2004
|
|
|
118,435
|
|
|
-
|
|
|
-
|
|
|
|
|
2005
|
|
|
146,974
|
|
|
-
|
|
|
-
|
|
___________________
(1)
As of
October 4, 2006, Mr. Oster is no longer employed by CombiMatrix Corporation
or
any of its subsidiaries.
STOCK
OPTION GRANTS AND EXERCISES
The
following table sets forth information regarding stock options granted to the
Named Executive Officers during 2005. No stock appreciation rights were granted
to any of the Named Executive Officers during 2005.
OPTION
GRANTS IN LAST FISCAL YEAR
|
Number
of
Securities
|
Percent
of Total Options
Granted
|
Exercise
or
|
|
Potential
Realizable Value at
Assumed
Annual Rate
of
Stock Price Appreciation
for
Option Term(1)
|
Name
|
Underlying
Options
Granted
(#)
|
to Employees
in
Fiscal
Year
|
Base
Price
($/Sh)
|
Expiration
Date
|
5%($)
|
10%($)
|
Amit
Kumar, Ph.D
|
90,000(2)
|
8.92
|
2.98
|
5/26/15
|
168,670
|
427,442
|
Brooke
Anderson, Ph.D
|
100,000(2)
|
9.91
|
2.98
|
5/26/15
|
187,411
|
474,935
|
Andrew
McShea, Ph.D
|
20,000(3)
|
1.98
|
3.00
|
3/2/15
|
37,734
|
95,625
|
|
61,500(2)
|
6.09
|
2.98
|
5/26/15
|
115,258
|
292,085
|
Scott
R. Burell, CPA
|
41,000(2)
|
4.06
|
2.98
|
5/26/15
|
76,838
|
194,723
|
Jeffrey
B. Oster, Ph.D
|
15,000(2)
|
1.49
|
2.98
|
5/26/15
|
28,112
|
71,240
|
________________________
(1)
|
The
5% and 10% assumed rates of appreciation are prescribed by the rules
and
regulations of the Commission and do not represent our estimate or
projection of the future trading prices of its common stock. Unless
the
market price of the common stock appreciates over the option term,
no
value will be realized from these option grants. Actual gains, if
any, on
stock option exercises are dependent on numerous factors, including,
without limitation, the future performance of our companies, overall
business and market conditions, and the optionee’s continued employment
with our companies throughout the vesting period and option term,
which
factors are not reflected in this table.
|
(2)
|
The
option was granted with respect to shares of AR-CombiMatrix stock
at an
exercise price equal to the closing price of AR-CombiMatrix stock
on the
date of grant and has a term of ten years. One-sixth (1/6) of the
option
shares vested upon completion of six (6) months of service measured
from
May 26, 2005 with the balance of the option shares vesting in thirty
(30)
successive equal monthly installments upon the completion of service
over
the thirty (30) month period measured from May 26, 2005. As of October
4,
2006, Mr. Oster is no longer employed by CombiMatrix Corporation
or any of
its subsidiaries.
|
(3)
|
The
option was granted with respect to shares of AR-CombiMatrix stock
at an
exercise price equal to the closing price of AR-CombiMatrix stock
on the
date of grant and has a term of ten years. One-sixth (1/6) of the
option
shares vested upon completion of six (6) months of service measured
from
February 14, 2005 with the balance of the option shares vesting in
thirty
(30) successive equal monthly installments upon the completion of
service
over the thirty (30) month period measured from February 14,
2005.
|
AGGREGATED
OPTION EXERCISES AND FISCAL YEAR END VALUES
The
following table provides information, with respect to the Named Executive
Officers, concerning the exercise of options to purchase AR-CombiMatrix stock
during 2005 and unexercised options held by them at the end of that fiscal
year.
None of the Named Executive Officers exercised any stock appreciation rights
during 2005 and no stock appreciation rights were held by the Named Executive
Officers at the end of such year.
AGGREGATED
OPTION EXERCISES IN LAST FISCAL YEAR
AND
FISCAL YEAR-END OPTION VALUES
|
Shares
Acquired
on
|
Value
|
Number
of Securities Underlying
Unexercised
Options at 2005
Year-End(#)
|
Value
of Unexercised
in-the-Money
Options at
2005
Year-End (1)($)
|
Name
|
Exercise(#)
|
Realized(2)($)
|
Exercisable
|
Unexercisable
|
Exercisable
|
Unexercisable
|
Amit
Kumar, Ph.D
|
-
|
-
|
976,655
|
235,005
|
$
-
|
$
-
|
Brooke
Anderson, Ph.D
|
-
|
-
|
215,748
|
108,891
|
$
-
|
$
-
|
Andrew
McShea, Ph.D
|
-
|
-
|
99,705
|
78,795
|
$
-
|
$
-
|
Scott
R. Burell, CPA
|
-
|
-
|
125,304
|
44,696
|
$
-
|
$
-
|
Jeffrey
B. Oster, Ph.D (3)
|
-
|
-
|
202,359
|
22,641
|
$
-
|
$
-
|
________________________
(1)
|
Represents
the difference between the exercise price of the options and
the average
of the closing prices of the AR-CombiMatrix stock on the Nasdaq
National
Market on December 31, 2005 of $1.53 per share.
|
(2)
|
Value
realized represents the difference between the exercise price
of the
options and the value of the underlying securities on the date
of
exercise.
|
(3)
|
As
of October 4, 2006, Mr. Oster is no longer employed by CombiMatrix
Corporation or any of its
subsidiaries.
|
EMPLOYMENT
AGREEMENTS
None.
2006
STOCK INCENTIVE PLAN
Prior
to
the redemption date, our board of directors plans to adopt and submit to our
stockholders for approval our 2006 Stock Incentive Plan. The purpose of our
2006
Stock Incentive Plan is to assist us and our subsidiaries in attracting,
motivating, retaining and rewarding our high-quality executives and our other
employees, officers, directors, consultants and other service providers, by
enabling such persons to acquire or increase an equity interest in the company
in order to strengthen the mutuality of interests between such service providers
and our stockholders, and providing such service providers with long term
performance incentives to expend their maximum efforts in the creation of
stockholder value.
Administration
Our
2006
Stock Incentive Plan is to be administered by our board of directors or any
committee designated by the board of directors consisting of not less than
two
directors. However, administration of the 2006 Stock Incentive Plan with respect
to persons subject to Section 16 of the Securities and Exchange Act of 1934
shall be done by our compensation committee or another committee that qualifies
under the requirements of Section 16. Subject to the terms of our 2006 Stock
Incentive Plan, the plan administrator is authorized to select eligible persons
to receive awards under the Plan, determine the type, number and other terms
and
conditions of, and all other matters relating to, awards, prescribe award
agreements (which need not be identical for each plan participant), and the
rules and regulations for the administration of the 2006 Stock Incentive Plan,
construe and interpret the 2006 Stock Incentive Plan and award agreements,
and
make all other decisions and determinations as the plan administrator may deem
necessary or advisable for the administration of our 2006 Stock Incentive Plan.
In addition the plan administrator may reduce the exercise price of any
outstanding award under the Plan, cancel any outstanding award and the grant
in
substitution a new award covering the same or a different number of Shares,
cash
or other valuable consideration (as determined by the plan administrator) or
any
other action that is treated as a repricing under generally accepted accounting
principles.
Eligibility
The
persons eligible to receive awards under our 2006 Stock Incentive Plan are
the
employees, members of our board of directors, consultants and other independent
advisers who provide services to us or any related entity. However, only our
employees and employees of our subsidiaries or any parent may receive incentive
stock options. An employee on leave of absence may be considered as still in
the
employ of us or a related entity for purposes of eligibility for participation
in our 2006 Stock Incentive Plan.
Types
of Awards
Our
2006
Stock Incentive Plan will provide for the issuance of stock options, stock
appreciation rights, stock awards, share right awards and performance awards.
Performance awards may be based on the achievement of certain business or
personal criteria or goals, as determined by the plan
administrator.
Shares
Available for Awards; Annual Per-Person Limitations
The
total
number of shares of common stock that may be subject to the granting of awards
under our 2006 Stock Incentive Plan at any time during the term of the 2006
Stock Incentive Plan shall be equal to 8,100,000 shares, plus an annual increase
to be added on the first trading day of January each year, commencing in January
2007 and ending upon termination of the 2006 Stock Incentive Plan, equal to
three percent (3%) of the shares of common stock outstanding on each such date
(rounded down to the nearest whole share). Notwithstanding the foregoing, with
respect to incentive stock options, no more than 30,000,000 shares may be issued
under the 2006 Stock Incentive Plan. Shares will become available for issuance
under new awards to the extent awards previously granted under our 2006 Stock
Incentive Plan (i) are forfeited, expire or otherwise terminate without issuance
of shares, (ii) are settled for cash or otherwise do not result in the issuance
of shares, or (iii) are exercised by the tender of shares attestation) or (iv)
are withheld upon exercise of an award to pay the exercise price or any tax
withholding requirements.
Our
2006
Stock Incentive Plan imposes individual limitations on certain awards. Under
these limitations, at such time as awards granted under the 2006 Stock Incentive
Plan may qualify as "performance-based" compensation pursuant to Section 162(m)
of the Internal Revenue Code, then during any fiscal year, no participant may
be
granted stock options or stock appreciation rights with respect to more than
2,000,000 shares and no participant may be granted stock or share right awards
with respect to more than 2,000,000 shares, subject to adjustment upon certain
changes in our capitalization. The maximum dollar value that may be paid out
to
any participant for any performance award with respect in any calendar year
is
$5,000,000.
In
the
event that any stock dividend, recapitalization, forward or reverse split,
reorganization, merger, combination, share exchange or other similar corporate
transaction or event affects the shares of our common stock, appropriate
adjustment will be made by the plan administrator to (i) the maximum number,
type and/or class of securities that may be issued under the 2006 Stock
Incentive Plan and the maximum number of shares that may be issued pursuant
to
incentive stock options, (ii) the number type and/or class of shares by which
award limitations are measured, as described in the preceding paragraph, (iii)
the number type and/or class of shares subject to or deliverable in respect
of
outstanding awards, (iv) the number type and/or class of shares subject to
or
deliverable in respect of the automatic option grant program for non-employee
directors, (v) the exercise price, grant price or purchase price relating to
any
award or the provision for payment of cash or other property in respect of
any
outstanding award, and (v) any other aspect of any award that the plan
administrator determines to be appropriate.
Stock
Options and Stock Appreciation Rights
The
plan
administrator is authorized to grant stock options, including both incentive
stock options, which can result in potentially favorable tax treatment to the
recipient, and non-qualified stock options, and stock appreciation rights
entitling the recipient to receive the amount by which the fair market value
of
a share of common stock on the date of exercise exceeds the grant price of
the
stock appreciation right. The exercise price per share subject to an option
and
the grant price of a stock appreciation rights are determined by the plan
administrator, but in the case of a stock option must not be less than the
fair
market value of a share of common stock on the date of grant. For purposes
of
our 2006 Stock Incentive Plan, the term "fair market value" means the fair
market value of our common stock, awards or other property as determined by
the
plan administrator or under procedures established by the plan administrator.
Unless otherwise determined by the plan administrator, the fair market value
of
a share of our common stock as of any given date shall be the closing sales
price per share of common stock as reported on the principal stock exchange
or
market on which the common stock is traded on the date as of which such value
is
being determined or, if there is no sale on that date, then on the last previous
day on which a sale was reported. The maximum term of each option or stock
appreciation right, the times at which each option or stock appreciation right
will be exercisable, and provisions requiring forfeiture of unexercised options
or stock appreciation rights at or following termination of service generally
are fixed by the plan administrator, except that no stock option may have a
term
exceeding ten years. Methods of exercise and settlement and other terms of
the
stock options and stock appreciation rights are determined by the plan
administrator. The plan administrator determines the methods in which the
exercise price of options awarded under the 2006 Stock Incentive Plan may be
paid, which may include cash, shares, other awards or other property (including,
to the extent permitted by law, loans to participants) or a cashless exercise
procedure.
Restricted
Stock and Stock Units
The
plan
administrator is authorized to grant shares of stock, including restricted
stock, and share right awards. Restricted stock is a grant of shares of common
stock which may not be sold or disposed of, and which may be forfeited in the
event of certain terminations of employment, prior to the end of a restricted
period specified by the plan administrator. A participant granted restricted
stock generally has all of the rights of a stockholder, unless otherwise
determined by the plan administrator. A share right award confers upon a
participant the right to receive shares of common stock at the end of a
specified period, subject to possible forfeiture of the award in the event
of
certain terminations of employment prior to the end of such specified period.
Prior to settlement, a share right award carries no voting or dividend rights
or
other rights associated with share ownership.
Performance
Awards
The
plan
administrator is authorized to grant performance awards to participants on
terms
and conditions established by the plan administrator. The performance criteria
to be achieved during any performance period and the length of the performance
period is determined by the plan administrator upon the grant of the performance
award. Performance awards may be valued by reference to a designated number
of
shares of common stock or by reference to a designated amount of property
including cash. Performance awards may be settled by delivery of cash, shares
or
other property, or any combination thereof, as determined by the plan
administrator. Performance awards granted to persons whom the plan administrator
expects will, for the year in which a deduction arises, be "covered employees"
(as described below) will, if and to the extent intended by the plan
administrator, be subject to provisions that should qualify such awards as
"performance based compensation" not subject to the limitation on tax
deductibility under Section 162(m) of the Internal Revenue Code. For purposes
of
Section 162(m), the term "covered employee" means our chief executive officer
and each other person whose compensation is required to be disclosed in our
filings with the Securities and Exchange Commission by reason of that person
being among our four highest compensated officers as of the end of a taxable
year. If and to the extent required under Section 162(m) of the Code, any power
or authority relating to a performance award intended to qualify under Section
162(m) is to be exercised by the plan administrator and not the board of
directors.
If
and to
the extent that the plan administrator determines that these provisions of
our
2006 Stock Incentive Plan are to be applicable to any award, one or more of
the
following business criteria, on a consolidated basis, and/or for our
subsidiaries, or for our business or geographical units and/or a related entity
(except with respect to the total stockholder return and earnings per share
criteria), shall be used by the plan administrator in establishing performance
goals for awards under our 2006 Stock Incentive Plan: (1) earnings per share;
(2) revenues or margins; (3) cash flow; (4) operating margin; (5) return on
net
assets, investment, capital, or equity; (6) direct contribution; (7) net income;
pretax earnings; (8) earnings before interest and taxes; earnings before
interest, taxes, depreciation and amortization; earnings after interest expense
and before extraordinary or special items; operating income; income before
interest income or expense, unusual items and income taxes, local, state or
federal and excluding budgeted and actual bonuses which might be paid under
any
ongoing bonus plans of the company; (9) working capital; (10) management of
fixed costs or variable costs; (11) identification or consummation of investment
opportunities or completion of specified projects in accordance with corporate
business plans, including strategic mergers, acquisitions or divestitures;
(12)
total shareholder return; and (13) debt reduction. Any of the above goals may
be
determined on a relative or absolute basis or as compared to the performance
of
a published or special index deemed applicable by the plan administrator. The
plan administrator may, in its discretion, determine that the amount payable
as
a performance award will be reduced from the amount of any potential
award.
Transferability
Awards
granted under our 2006 Stock Incentive Plan generally may not be pledged or
otherwise encumbered and are not transferable except by will or by the laws
of
descent and distribution, or to a designated beneficiary upon the participant’s
death, except to the extent expressly permitted by the plan administrator in
the
award agreement.
Acceleration
of Vesting; Change in Control
The
plan
administrator may, in its discretion, accelerate the exercisability, the lapsing
of restrictions or the expiration of deferral or vesting periods of any award,
including if we undergo a "change in control", as defined in our 2006 Stock
Incentive Plan.
Amendment
and Termination
The
board
of directors may amend, alter, suspend, discontinue or terminate our 2006 Stock
Incentive Plan without further stockholder approval, except stockholder approval
must be obtained for any amendment or alteration that increases the shares
reserved for issuance under the plan or increases the classes of participants
eligible under the plan or if such approval is required by applicable law or
regulation. Our 2006 Stock Incentive Plan will terminate on the earliest of
(i)
the tenth anniversary of the effective date of the Plan, (ii) the tenth
anniversary of the date of stockholder approval of the Plan; (iii) the date
that
all shares under the Plan have been issued and are fully vested and (iv) the
termination of all outstanding awards in connection with a change in control.
Awards outstanding upon expiration of our 2006 Stock Incentive Plan shall remain
in effect until they have been exercised or terminated, or have
expired.
401(k)
Plan
We
maintain a retirement and deferred savings plan for our employees. The
retirement and deferred savings plan is intended to qualify as a tax-qualified
plan under Section 401 of the Code. The retirement and deferred savings plan
provides that each participant may contribute up to 60% of his or her pre-tax
compensation, up to a statutory limit, which is $15,000 in calendar year 2005
except for employees over 50 years of age, for whom the limit is $20,000. Under
the plan, each employee is fully vested in his or her deferred salary
contributions. Employee contributions are held and invested by the plan’s
trustee.
COMPENSATION
COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The
Compensation Committee of the company’s Board of Directors currently consists of
Thomas Akin, Rigdon Currie and John Abeles, M.D. None of these individuals
was
an officer or employee of the company at any time during 2005 or at any other
time. No current executive officer of the company has ever served as a member
of
the board of directors or compensation committee of any other entity that has
or
has had one or more executive officers serving as a member of the company’s
Board of Directors or Compensation Committee.
EQUITY
COMPENSATION PLAN INFORMATION
In
connection with the split off, all outstanding stock options for the purchase
of
AR-CombiMatrix stock under the employee benefit plans of Acacia will accelerate
and terminate. As of December 15, 2006, options for - 2,061,919 shares that
are
not currently vested will fully vest upon the split off, because the split
off
will be deemed to constitute a change in control for purposes of the various
option plans to which the options were originally granted. As of September
30,
2006, there are approximately 8.6 million shares of AR-CombiMatrix stock subject
to outstanding stock options at exercise prices ranging from $1.33 to $24.00,
with a weighted average exercise price of $5.70. No further options will be
granted under any of the AR-CombiMatrix equity compensation plans.
AR-CombiMatrix
stock options to purchase 3,458 shares of AR-CombiMatrix common stock issued
to
a former employee and a former consultant will be assumed under our 2006 Stock
Incentive Plan. The assumed options were granted under the CombiMatrix
Corporation 2000 Stock Awards Plan (which was later incorporated into the 2002
CombiMatrix Stock Incentive Plan), however, in general, the material terms
of
the options are the same. The exercise prices of these options range from $12.00
to $18.00, with a weighted average exercise price of $14.53. The options
generally have a maximum term of ten years and are currently vested. The
exercise price of these options represents the fair market value of the
underlying stock when granted.
Historical
The
following table provides information as of December 31, 2005, with respect
to
our common shares issuable under the equity compensation plans of Acacia
Research Corporation related to AR-CombiMatrix stock. Please review this
information in light of the effect of the redemption upon such plans, as
described below.
Plan
Category
|
|
(a)
Number of securities to be issued upon exercise of outstanding
options
|
|
(b)
Weighted average exercise price of outstanding options
|
|
(c)
Number of securities remaining available for future issuance under
equity
compensation plans (excluding securities reflected in column
(a))
|
|
Equity
compensation plans approved by security holders
|
|
|
|
|
|
|
|
|
|
|
2002
CombiMatrix Stock Incentive Plan(1)
|
|
|
6,925,000
|
|
$
|
6.82
|
|
|
2,166,000
|
|
Equity
compensation plans not approved by security holders(2)
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Total
|
|
|
6,925,000
|
|
$
|
6.82
|
|
|
2,166,000
|
|
________________________
(1)
|
Our
2002 CombiMatrix Stock Incentive Plan, as amended, or the CombiMatrix
Plan, allows for the granting of stock options and other awards
to
eligible individuals, which generally includes directors, officers,
employees and consultants. The CombiMatrix Plan does not segregate
the
number of securities remaining available for future issuance among
stock
options and other awards. The shares authorized for future issuance
represents the total number of shares available through any combination
of
stock options or other awards. The share reserve under the CombiMatrix
Plan automatically increases on the first trading day in January
each
calendar year by an amount equal to three percent (3%) of the total
number
of shares of our AR-CombiMatrix stock outstanding on the last trading
day
of December in the prior calendar year, but in no event will this
annual
increase exceed 600,000 shares and in no event will the total number
of
shares of common stock in the share reserve (as adjusted for all
such
annual increases) exceed twenty million shares. See Note 12 to
our
consolidated financial statements for additional information regarding
our
existing stock option award plans.
|
(2)
|
We
have not authorized the issuance of equity securities under any
plan not
approved by security holders.
|
Pro
Forma
Upon
redemption, 3,458 options granted under the 2000 Stock Awards Plan will be
converted to an option under the CombiMatrix Corporation 2006 Stock Incentive
Plan to acquire one share of our common stock for each share of AR-CombiMatrix
stock available under the 2000 Stock Awards Plan. The following table provides
pro forma information about our common shares that would have been issuable
under the CombiMatrix Corporation 2006 Stock Incentive Plan if the redemption
had occurred on December 31, 2005.
Plan
Category
|
|
(a)
Number of securities to be issued upon exercise of outstanding
options
|
|
(b)
Weighted average exercise price of outstanding options
|
|
(c)
Number of securities remaining available for future issuance under
equity
compensation plans (excluding securities reflected in column
(a))
|
|
Equity
compensation plans approved by security holders
|
|
|
|
|
|
|
|
|
|
|
CombiMatrix
Corporation 2006 Stock Incentive Plan
|
|
|
3,458
|
|
$
|
14.53
|
|
|
8,103,458
|
|
Equity
compensation plans not approved by security holders
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Total
|
|
|
3,458
|
|
$
|
14.53
|
|
|
8,103,458
|
|
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
On
or
about December 14, 2006, Amit Kumar, our Chief Executive Officer, President
and
Director, purchased from Acacia Research Corporation in a direct public
offering, 250,000 units, each unit consisting of one share of AR-CombiMatrix
stock and a warrant to purchase one and two-tenths shares of AR-CombiMatrix
stock. The units were sold at a purchase price of $1.02 per unit, based upon
a
market price of $0.87 per share of AR-CombiMatrix stock, for a total purchase
price of $255,000. Each warrant is exercisable at a price of $0.87 per share
until December 13, 2011. Following the split-off, Dr. Kumar, together with
the
other holders of the warrants, will have the right to exercise the warrants
for
shares of common stock of CombiMatrix Corporation under the same terms and
conditions. In addition, following the split off, he will have the right to
require the company to register for resale the shares of our common stock
issuable in exchange for the warrants and to keep such registration statement
effective until such shares are sold by Dr. Kumar. The shares of AR-CombiMatrix
stock that may be acquired by Dr. Kumar upon exercise of the warrants are
included in the beneficial ownership table below.
Pursuant
to our Code of Business Conduct and Ethics, our officers and directors are
not
permitted to enter into any binding agreements with our company without the
prior consent of the Board of Directors. The Board of Directors as a whole
is
responsible for applying this process. Any request to enter into a binding
agreement with an officer or director is evaluated and approved by the entire
Board of Directors. A copy of our Code of Business Conduct and Ethics is
available at our website at www.combimatrix.com.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Before
the separation, all of the outstanding shares of CombiMatrix Corporation common
stock are and will be held beneficially and of record by Acacia Research
Corporation. The following table sets forth information concerning expected
beneficial ownership of the CombiMatrix Corporation common stock after giving
effect to the separation by:
|
·
|
each
person or entity known to us who will beneficially own more than
5% of the
outstanding shares of CombiMatrix Corporation common
stock;
|
|
·
|
each
person who we currently know will be one of its directors or named
executive officers at the time of the separation;
and
|
|
·
|
as
a group, all persons who we currently know will be the directors
and
executive officers of CombiMatrix Corporation at the time of the
separation.
|
The
following information:
|
·
|
gives
effect to the separation for the percentage ownership information
as if it
had occurred on December 15, 2006;
in
the case of percentage ownership information, assumes that immediately
after the separation there are 52,365,810 shares of CombiMatrix
Corporation common stock outstanding, which is the number that would
have
been outstanding if the separation had occurred on December 15,
2006;
|
|
·
|
reflects
a redemption ratio of one share of CombiMatrix Corporation common
stock
for each share of AR-CombiMatrix stock held by persons listed in
the table
below;
|
|
·
|
gives
effect to the conversion, at an assumed conversion ratio of one to
one, of
each option to purchase shares of AR-CombiMatrix stock issued under
employee stock incentive plans and outstanding on the date of the
separation into an option on substantially the same terms to purchase
shares of CombiMatrix Corporation common
stock.
|
The
actual number of shares of CombiMatrix Corporation common stock outstanding
as
of the date of the separation may differ to the extent that outstanding stock
options are exercised between December 15, 2006, and the date of the redemption
and to the extent the assumed distributions and conversion ratios differ from
the actual ratios.
Beneficial
Owner
|
|
Amount
and Nature of
Beneficial
Ownership
|
|
Percent
of
Class(1)
|
|
Directors
and Executive Officers(2)
|
|
|
|
|
|
|
|
Amit
Kumar, Ph.D. (3)
|
|
|
1,786,378
|
|
|
3.32%
|
|
Brooke
Anderson, Ph.D. (4)
|
|
|
521,306
|
|
|
*
|
|
Scott
Burell, CPA (5)
|
|
|
175,683
|
|
|
*
|
|
Andrew
McShea, Ph.D. (6)
|
|
|
173,937
|
|
|
*
|
|
Thomas
Akin (7)
|
|
|
248,222
|
|
|
*
|
|
Rigdon
Currie (8)
|
|
|
142,500
|
|
|
*
|
|
John
Abeles, MD (9)
|
|
|
2,499
|
|
|
*
|
|
All
Directors and Executive Officers as a Group
(eight
persons) (10)
|
|
|
3,050,525
|
|
|
5.60%
|
|
_____________________
*Less
than 1%
(1)
|
The
percentage of shares beneficially owned is based on 52,365,810 shares
of
AR-CombiMatrix stock outstanding as of December 1, 2006. Beneficial
ownership is determined under rules and regulations of the Commission.
Shares of common stock subject to options that are currently exercisable
or exercisable within 60 days after December 15, 2006, are deemed to
be outstanding and beneficially owned by the person holding such
options
for the purpose of computing the number of shares beneficially owned
and
the percentage ownership of such person, but are not deemed to be
outstanding for the purpose of computing the percentage ownership
of any
other person. Except as indicated in the footnotes to this table,
and
subject to applicable community property laws, we believe that such
persons have sole voting and investment power with respect to all
shares
of our common stock shown as beneficially owned by
them.
|
(2)
|
The
address for each of the directors and executive officers is CombiMatrix
Corporation’s principal offices, CombiMatrix Corp., 6500 Harbour Heights
Pkwy, Suite 301, Mukilteo, WA
98275.
|
(3)
|
Includes
1,207,764
shares
of AR-CombiMatrix stock issuable upon exercise of
options
that are currently exercisable or will become exercisable within
60 days
of December 15, 2006, and 300,000 shares of AR-CombiMatrix stock
issuable
upon exercise of warrants that are currently
exercisable.
|
(4)
|
Includes
315,911 shares of AR-CombiMatrix stock issuable upon exercise of
options
that are currently exercisable or will become exercisable within
60 days
of December 15, 2006, and 28,800 shares of AR-CombiMatrix stock issuable
upon exercise of warrants that are currently
exercisable.
|
(5)
|
Includes
175,663 shares of AR-CombiMatrix stock issuable upon exercise of
options
that are currently exercisable or will become exercisable within
60 days
of December 15, 2006.
|
(6)
|
Includes
173,937 shares of AR-CombiMatrix stock issuable upon exercise of
options
that are currently exercisable or will become exercisable within
60 days
of December 15, 2006.
|
(7)
|
Includes
129,736 shares of AR-CombiMatrix stock held by Talkot
Crossover
Fund, L.E.
and
118,486 shares of AR - CombiMatrix stock issuable upon exercise of
options
that are currently exercisable or will become exercisable within
60 days
of February 23, 2006. Mr. Akin serves as managing general partner
of
Talkot Crossover Fund, L.E.
|
(8)
|
Includes
142,500 shares of AR-CombiMatrix stock issuable upon exercise of
options
that are currently exercisable or will become exercisable within
60 days
of December 15, 2006.
|
(9)
|
Includes
2,499 shares of AR-CombiMatrix stock issuable upon exercise of options
that are currently exercisable or will become exercisable within
60 days
of December 15, 2006.
|
(10)
|
Includes
2,805,610 shares
of
AR-CombiMatrix stock issuable upon exercise of options
and
warrants that are currently exercisable or will become exercisable
within
60 days of December 15, 2006.
|
EXPERTS
The
financial statements as of December 31, 2004 and 2005 and for each of the three
years in the period ended December 31, 2005 included in this prospectus have
been so included in reliance on the report (which contains an emphasis of a
matter paragraph due to management’s anticipation that the Company will require
additional financing to continue as a going concern as described in Note 16
to
the consolidated financial statements) of PricewaterhouseCoopers LLP, an
independent registered public accounting firm, given on the authority of said
firm as experts in auditing and accounting.
INDEX
TO FINANCIAL STATEMENTS
|
Page
|
Report
of Independent Registered Public Accounting Firm
|
F-2
|
Consolidated
Balance Sheets as of December 31, 2004 and 2005 and September 30,
2006
(unaudited)
|
F-3
|
Consolidated
Statements of Operations for the years ended December 31, 2003,
2004 and
2005 and for the nine months ended September 30, 2005 and 2006
(unaudited)
|
F-4
|
Consolidated
Statements of Allocated Net Worth for the years ended December
31, 2003,
2004 and 2005 and for the nine months ended September 30, 2006
(unaudited)
|
F-5
|
Consolidated
Statements of Cash Flows for the years ended December 31, 2003,
2004 and
2005 and for the nine months ended September 30, 2005 and 2006
(unaudited)
|
F-6
|
Notes
to Consolidated Financial Statements
|
F-7
|
REPORT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To
the
Board of Directors and Shareholders of CombiMatrix Corporation:
"In
our
opinion, the accompanying consolidated balance sheets and the related
consolidated statements of operations, statements of allocated net worth and
statements of cash flows present fairly, in all material respects, the financial
position of CombiMatrix Corporation and its subsidiaries at December 31, 2005
and 2004, and the results of their operations and their cash flows for each
of
the three years in the period ended December 31, 2005 in conformity with
accounting principles generally accepted in the United States of America. These
financial statements are the responsibility of the Company’s management. Our
responsibility is to express an opinion on these financial statements based
on
our audits. We conducted our audits of these statements in accordance with
the
standards of the Public Company Accounting Oversight Board (United States).
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion."
As
discussed in Note 16 to the consolidated financial statements, management
anticipates that the Company will require additional financing in the
foreseeable future to continue as a going concern.
/s/
PricewaterhouseCoopers LLP
Seattle,
Washington
March
16,
2006, except for Note 16, which is as of December 22, 2006.
COMBIMATRIX
CORPORATION
CONSOLIDATED
BALANCE SHEETS
(
In
thousands, except share amounts)
|
|
|
|
|
|
|
|
Pro
Forma
|
|
|
|
December
31,
|
|
September
30,
|
|
September
30,
|
|
|
|
2004
|
|
2005
|
|
2006
|
|
2006
|
|
|
|
|
|
|
|
(unaudited)
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
assets:
|
|
|
|
|
|
|
|
|
|
Cash
and cash equivalents
|
|
$
|
2,985
|
|
$
|
5,718
|
|
$
|
2,728
|
|
|
|
|
Available-for-sale
investments
|
|
|
20,727
|
|
|
14,547
|
|
|
6,027
|
|
|
|
|
Accounts
receivable
|
|
|
343
|
|
|
911
|
|
|
1,287
|
|
|
|
|
Inventory
|
|
|
172
|
|
|
570
|
|
|
474
|
|
|
|
|
Prepaid
expenses and other assets
|
|
|
57
|
|
|
139
|
|
|
148
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
current assets
|
|
|
24,284
|
|
|
21,885
|
|
|
10,664
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property
and equipment, net
|
|
|
2,330
|
|
|
2,363
|
|
|
2,070
|
|
|
|
|
Patents,
net
|
|
|
9,021
|
|
|
7,926
|
|
|
7,104
|
|
|
|
|
Goodwill
|
|
|
19,424
|
|
|
18,859
|
|
|
16,918
|
|
|
|
|
Other
assets
|
|
|
329
|
|
|
1,560
|
|
|
2,668
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
55,388
|
|
$
|
52,593
|
|
$
|
39,424
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES
AND ALLOCATED NET WORTH
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts
payable, accrued expenses and other
|
|
$
|
1,964
|
|
$
|
2,483
|
|
$
|
2,459
|
|
|
|
|
Current
portion of deferred revenues
|
|
|
66
|
|
|
165
|
|
|
407
|
|
|
|
|
Payable
to Acacia Technologies group
|
|
|
119
|
|
|
52
|
|
|
474
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
current liabilities
|
|
|
2,149
|
|
|
2,700
|
|
|
3,340
|
|
$
|
3,340
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred
income taxes
|
|
|
2,112
|
|
|
1,975
|
|
|
-
|
|
|
-
|
|
Deferred
revenues, net of current portion
|
|
|
3,893
|
|
|
1,439
|
|
|
1,145
|
|
|
1,145
|
|
Other
liabilities
|
|
|
406
|
|
|
1,381
|
|
|
719
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
liabilities
|
|
|
8,560
|
|
|
7,495
|
|
|
5,204
|
|
|
4,485
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments
and contingencies (Note 9)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allocated
net worth:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred
stock; $0.001 par value; 30,000,000 shares authorized;
|
|
|
|
|
|
|
|
|
|
|
|
|
|
none
issued and outstanding, pro forma
|
|
|
|
|
|
|
|
|
|
|
$
|
-
|
|
Common
stock; $0.001 par value; 180,000,000 shares authorized;
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41,405,798
issued and outstanding, pro forma
|
|
|
|
|
|
|
|
|
|
|
|
414
|
|
Additional
paid-in capital
|
|
|
|
|
|
|
|
|
|
|
|
34,525
|
|
Net
allocations from Acacia Research Corporation
|
|
|
159,056
|
|
|
169,727
|
|
|
174,307
|
|
|
-
|
|
Accumulated
net losses
|
|
|
(112,228
|
)
|
|
(124,629
|
)
|
|
(140,087
|
)
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
allocated net worth
|
|
|
46,828
|
|
|
45,098
|
|
|
34,220
|
|
|
34,939
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
55,388
|
|
$
|
52,593
|
|
$
|
39,424
|
|
$
|
39,424
|
|
The
accompanying notes are an integral part of these financial
statements.
COMBIMATRIX
CORPORATION
CONSOLIDATED
STATEMENTS OF OPERATIONS
|
|
|
|
|
|
|
|
For
the Nine Months
|
|
|
|
For
the Years Ended December 31,
|
|
Ended
September 30,
|
|
|
|
2003
|
|
2004
|
|
2005
|
|
2005
|
|
2006
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
Collaboration
agreements
|
|
$
|
-
|
|
$
|
17,302
|
|
$
|
2,266
|
|
$
|
-
|
|
$
|
-
|
|
Government
contract
|
|
|
-
|
|
|
1,993
|
|
|
3,849
|
|
|
2,985
|
|
|
1,563
|
|
Service
contracts
|
|
|
49
|
|
|
116
|
|
|
153
|
|
|
108
|
|
|
268
|
|
Products
|
|
|
407
|
|
|
230
|
|
|
1,765
|
|
|
1,296
|
|
|
3,050
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
revenues
|
|
|
456
|
|
|
19,641
|
|
|
8,033
|
|
|
4,389
|
|
|
4,881
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost
of government contract revenues
|
|
|
-
|
|
|
1,874
|
|
|
3,683
|
|
|
2,820
|
|
|
1,476
|
|
Cost
of product sales
|
|
|
99
|
|
|
173
|
|
|
820
|
|
|
635
|
|
|
973
|
|
Research
and development expenses
|
|
|
8,564
|
|
|
5,385
|
|
|
5,783
|
|
|
4,082
|
|
|
7,380
|
|
Marketing,
general and administrative expenses
|
|
|
9,820
|
|
|
9,902
|
|
|
9,827
|
|
|
7,345
|
|
|
9,691
|
|
Patent
amortization and royalties
|
|
|
1,178
|
|
|
1,234
|
|
|
1,312
|
|
|
951
|
|
|
1,075
|
|
Legal
settlement charges (gains)
|
|
|
144
|
|
|
812
|
|
|
(406
|
)
|
|
(406
|
)
|
|
-
|
|
Equity
in loss of investees
|
|
|
-
|
|
|
17
|
|
|
352
|
|
|
202
|
|
|
786
|
|
Goodwill
impairment
|
|
|
-
|
|
|
-
|
|
|
565
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
operating expenses
|
|
|
19,805
|
|
|
19,397
|
|
|
21,936
|
|
|
15,629
|
|
|
21,381
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
income (loss)
|
|
|
(19,349
|
)
|
|
244
|
|
|
(13,903
|
)
|
|
(11,240
|
)
|
|
(16,500
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
income
|
|
|
214
|
|
|
330
|
|
|
523
|
|
|
328
|
|
|
429
|
|
Interest
expense
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Loss
on sale of interest in subsidiary
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(84
|
)
|
Warrant
gains (charges)
|
|
|
-
|
|
|
-
|
|
|
812
|
|
|
163
|
|
|
663
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
other income
|
|
|
214
|
|
|
330
|
|
|
1,335
|
|
|
491
|
|
|
1,008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
(loss) from operations before income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
and
minority interests
|
|
|
(19,135
|
)
|
|
574
|
|
|
(12,568
|
)
|
|
(10,749
|
)
|
|
(15,492
|
)
|
Benefit
for income taxes
|
|
|
136
|
|
|
136
|
|
|
167
|
|
|
133
|
|
|
34
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
(loss) from operations before minority interests
|
|
|
(18,999
|
)
|
|
710
|
|
|
(12,401
|
)
|
|
(10,616
|
)
|
|
(15,458
|
)
|
Minority
interests
|
|
|
30
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
income (loss)
|
|
$
|
(18,969
|
)
|
$
|
710
|
|
$
|
(12,401
|
)
|
$
|
(10,616
|
)
|
$
|
(15,458
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unaudited
pro forma basic and diluted net loss per share
|
|
|
|
|
|
|
|
$
|
(0.24
|
)
|
|
|
|
$
|
(0.30
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unaudited
pro forma basic and diluted weighted average
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
common
shares outstanding
|
|
|
|
|
|
|
|
|
52,365,810
|
|
|
|
|
|
52,365,810
|
|
The
accompanying notes are an integral part of these financial
statements.
COMBIMATRIX
CORPORATION
CONSOLIDATED
STATEMENTS OF ALLOCATED NET WORTH
(I
n
thousands)
|
|
Net
Allocations
|
|
|
|
|
|
|
|
from
Acacia Research
|
|
Accumulated
|
|
Total
Allocated
|
|
|
|
Corporation
|
|
Net
Losses
|
|
Net
Worth
|
|
|
|
|
|
|
|
|
|
Balances,
December 31, 2002
|
|
$
|
129,286
|
|
$
|
(93,969
|
)
|
$
|
35,317
|
|
Net
income (loss)
|
|
|
-
|
|
|
(18,969
|
)
|
|
(18,969
|
)
|
Net
allocations from Acacia Research Corporation
|
|
|
9,389
|
|
|
-
|
|
|
9,389
|
|
|
|
|
|
|
|
|
|
|
|
|
Balances,
December 31, 2003
|
|
|
138,675
|
|
|
(112,938
|
)
|
|
25,737
|
|
Net
income (loss)
|
|
|
-
|
|
|
710
|
|
|
710
|
|
Net
allocations from Acacia Research Corporation
|
|
|
20,381
|
|
|
-
|
|
|
20,381
|
|
|
|
|
|
|
|
|
|
|
|
|
Balances,
December 31, 2004
|
|
|
159,056
|
|
|
(112,228
|
)
|
|
46,828
|
|
Net
income (loss)
|
|
|
-
|
|
|
(12,401
|
)
|
|
(12,401
|
)
|
Net
allocations from Acacia Research Corporation
|
|
|
10,671
|
|
|
-
|
|
|
10,671
|
|
|
|
|
|
|
|
|
|
|
|
|
Balances,
December 31, 2005
|
|
|
169,727
|
|
|
(124,629
|
)
|
|
45,098
|
|
Net
income (loss) (unaudited)
|
|
|
-
|
|
|
(15,458
|
)
|
|
(15,458
|
)
|
Net
allocations from Acacia Research Corporation (unaudited)
|
|
|
4,580
|
|
|
-
|
|
|
4,580
|
|
|
|
|
|
|
|
|
|
|
|
|
Balances,
September 30, 2006 (unaudited)
|
|
$
|
174,307
|
|
$
|
(140,087
|
)
|
$
|
34,220
|
|
The
accompanying notes are an integral part of these financial
statements.
COMBIMATRIX
CORPORATION
CONSOLIDATED
STATEMENTS OF CASH FLOWS
(I
n
thousands
)
|
|
|
|
|
|
|
|
For
the Nine Months
|
|
|
|
For
the Years Ended December 31,
|
|
Ended
September 30,
|
|
|
|
2003
|
|
2004
|
|
2005
|
|
2005
|
|
2006
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
Operating
activities:
|
|
|
|
|
|
|
|
|
|
|
|
Net
income (loss) from operations
|
|
$
|
(18,969
|
)
|
$
|
710
|
|
$
|
(12,401
|
)
|
$
|
(10,616
|
)
|
$
|
(15,458
|
)
|
Adjustments
to reconcile net income (loss) from operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
to
net cash used in operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation
and amortization
|
|
|
2,409
|
|
|
2,200
|
|
|
2,183
|
|
|
1,631
|
|
|
1,507
|
|
Minority
interests
|
|
|
(30
|
)
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Goodwill
impairment
|
|
|
-
|
|
|
-
|
|
|
565
|
|
|
-
|
|
|
-
|
|
Non-cash
stock compensation
|
|
|
1,655
|
|
|
754
|
|
|
(159
|
)
|
|
(146
|
)
|
|
1,756
|
|
Deferred
taxes
|
|
|
(136
|
)
|
|
(136
|
)
|
|
(137
|
)
|
|
(103
|
)
|
|
(34
|
)
|
Legal
settlement charges (gains)
|
|
|
144
|
|
|
812
|
|
|
(406
|
)
|
|
(406
|
)
|
|
-
|
|
Warrant
(charges) gains
|
|
|
-
|
|
|
|
|
|
(812
|
)
|
|
(163
|
)
|
|
(663
|
)
|
Loss
from equity investments
|
|
|
-
|
|
|
17
|
|
|
352
|
|
|
202
|
|
|
786
|
|
Loss
on sale of interest in subsidiary
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
84
|
|
Other
|
|
|
(49
|
)
|
|
43
|
|
|
(79
|
)
|
|
(77
|
)
|
|
218
|
|
Changes
in assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts
receivable
|
|
|
379
|
|
|
(154
|
)
|
|
(568
|
)
|
|
(511
|
)
|
|
(393
|
)
|
Inventory,
prepaid expenses and other assets
|
|
|
169
|
|
|
135
|
|
|
(179
|
)
|
|
(129
|
)
|
|
83
|
|
Accounts
payable, accrued expenses and other
|
|
|
(715
|
)
|
|
481
|
|
|
353
|
|
|
342
|
|
|
637
|
|
Deferred
revenues
|
|
|
11,233
|
|
|
(16,446
|
)
|
|
(2,355
|
)
|
|
22
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
cash used in operating activities
|
|
|
(3,910
|
)
|
|
(11,584
|
)
|
|
(13,643
|
)
|
|
(9,954
|
)
|
|
(11,476
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Investing
activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase
of property and equipment
|
|
|
(83
|
)
|
|
(810
|
)
|
|
(1,325
|
)
|
|
(1,097
|
)
|
|
(495
|
)
|
Purchase
of available-for-sale investments
|
|
|
(32,714
|
)
|
|
(50,143
|
)
|
|
(36,771
|
)
|
|
(19,536
|
)
|
|
(1,021
|
)
|
Sale
of available-for-sale investments
|
|
|
30,801
|
|
|
42,755
|
|
|
43,086
|
|
|
32,910
|
|
|
9,551
|
|
Purchase
of additional interest in equity method investee
|
|
|
-
|
|
|
(250
|
)
|
|
(1,600
|
)
|
|
(1,100
|
)
|
|
(1,400
|
)
|
Sale
of interest in subsidiary
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(369
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
cash provided by (used in) investing activities
|
|
|
(1,996
|
)
|
|
(8,448
|
)
|
|
3,390
|
|
|
11,177
|
|
|
6,266
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financing
activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
cash flows transferred from Acacia Research Corporation
|
|
|
6,435
|
|
|
19,227
|
|
|
12,914
|
|
|
12,969
|
|
|
2,220
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect
of exchange rate on cash
|
|
|
(13
|
)
|
|
(17
|
)
|
|
72
|
|
|
35
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Decrease)
increase in cash and cash equivalents
|
|
|
516
|
|
|
(822
|
)
|
|
2,733
|
|
|
14,227
|
|
|
(2,990
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
and cash equivalents, beginning
|
|
|
3,291
|
|
|
3,807
|
|
|
2,985
|
|
|
2,985
|
|
|
5,718
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
and cash equivalents, ending
|
|
$
|
3,807
|
|
$
|
2,985
|
|
$
|
5,718
|
|
$
|
17,212
|
|
$
|
2,728
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental
disclosure of cash flow and non-cash activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
paid for interest and taxes
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
The
accompanying notes are an integral part of these financial
statements.
COMBIMATRIX
CORPORATION
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
1.
OVERVIEW
AND BACKGROUND
CombiMatrix
Corporation (the "Company", "we", "us" and "our") was originally incorporated
in
October 1995 as a California corporation and later reincorporated as a Delaware
corporation in September 2000. On December 13, 2002 (the "Merger Date"), we
merged with and became a wholly owned subsidiary of Acacia Research Corporation
("Acacia"). Also on the Merger Date, Acacia entered into a recapitalization
transaction whereby Acacia created two classes of registered common stock called
Acacia Research-CombiMatrix common stock ("AR-CombiMatrix stock") and Acacia
Research-Acacia Technologies common stock ("AR-Acacia Technologies stock")
and
divided its existing Acacia common stock into shares of the two new classes
of
common stock. The AR-CombiMatrix stock was intended to reflect separately the
performance of CombiMatrix Corporation and its subsidiaries, referred to as
"the
CombiMatrix group", whereas the AR-Acacia Technologies stock was intended to
reflect separately the performance of Acacia’s technology business, referred to
as "the Acacia Technologies group." Immediately following the Merger Date,
the
Company had 1,000 shares of common stock authorized and 100 shares issued and
outstanding, all of which were owned by Acacia.
On
January 9, 2006, Acacia announced its intent to split-off the Company from
Acacia as an independent public company. As a result, we intend to register
with
the U.S. Securities and Exchange Commission ("SEC") our common
stock
under the Securities Act of 1934 so that upon the effectiveness of the
registration statement (the "Redemption Date"), all currently issued and
outstanding shares of AR-CombiMatrix stock will be redeemed and exchanged for
an
equivalent number of shares of our common stock, which will be publicly traded.
Immediately prior to the Redemption Date, we will execute a stock split of
the
100 shares of CombiMatrix Corporation owned by Acacia so that the new number
of
registered CombiMatrix Corporation common shares will be equivalent to the
number of shares of AR-CombiMatrix stock issued and outstanding as of the
Redemption Date. Following the Redemption Date, we will apply to list our
registered shares of common stock for trading on the American Stock Exchange
(AMEX) or another national stock exchange and we will no longer be an affiliate
of Acacia. This transaction is predicated upon successful completion of the
required SEC filings.
Description
of the Company
We
have
and continue to develop proprietary technologies, products and services in
the
areas of drug development, genetic analysis, molecular diagnostics,
nanotechnology research, defense and homeland security applications, as well
as
other potential markets where our products could be utilized. Among the
technologies we have developed is 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. This technology
has potential applications in the areas of genomics, proteomics, biosensors,
drug discovery, drug development, diagnostics, combinatorial chemistry, material
sciences and nanotechnology. Other technologies include proprietary molecular
synthesis and screening methods for the discovery of potential new drugs.
CombiMatrix Molecular Diagnostics, Inc. ("CMDX"), a wholly owned subsidiary
of
the Company located in Irvine, California, is exploring opportunities for our
arrays in the field of molecular diagnostics. CombiMatrix K.K., a former wholly
owned Japanese corporation located in Tokyo, Japan, has existed for the purposes
of exploring opportunities for our array system with pharmaceutical and
biotechnology companies in the Asian market. In January of 2006, we sold 67%
of
our ownership interest in CombiMatrix K.K. to a third party (see Note
5).
Basis
of Presentation
The
consolidated financial statements included herein include the assets,
liabilities, operating results and cash flows of the Company using Acacia’s
historical bases in the assets and liabilities and the historical results of
operations of the Company. Historical allocated net worth represents the net
allocations by Acacia to us for equity transactions of Acacia that have been
attributed to the Company as well as the accumulation of our net
losses.
The
consolidated financial statements include allocations of certain Acacia
corporate expenses, including governance, legal, accounting, insurance services,
management of treasury and other Acacia corporate and infrastructure costs.
The
expense allocations have been determined on bases that Acacia and the Company
considered to be a reasonable reflection of the utilization of services provided
or the benefit received by us. However, the financial information included
herein may not reflect the consolidated financial position, operating results,
changes in stockholder’s equity and cash flows of the Company in the future or
what they would have been had we been a separate, stand-alone entity during
the
periods presented. Direct salaries, payroll taxes and fringe benefits incurred
by Acacia are allocated to Acacia’s reporting groups based on the percentage of
actual time incurred by specific employees to total annual time available and
direct costs including, postage, insurance, legal fees, accounting and tax
and
other are allocated to the groups based on specific identification of costs
incurred on behalf of each group. Other direct costs, including direct
depreciation expense, computer costs, general office supplies and rent are
allocated to the groups based on the ratio of direct salaries to total salaries.
Indirect costs, including indirect salaries and benefits, investor relations,
rent, general office supplies and indirect depreciation are allocated to the
groups based on the ratio of direct salaries for each group to total direct
salaries. For the years ended December 31, 2003, 2004 and 2005, and for the
nine
months ended September 30, 2005 and 2006, corporate expenses totaling $894,000,
$689,000, $498,000, $373,000 and $378,000, respectively, were allocated to
us by
Acacia.
The
unaudited interim consolidated financial statements and footnotes as of
September 30, 2005 and 2006 have been prepared in accordance with generally
accepted accounting principles and include all adjustments of a normal recurring
nature which, in the opinion of management, are necessary for a fair statement
of our financial position as of September 30, 2006, and the results of our
operations and our cash flows for the interim periods presented. The results
of
operations for the nine months ended September 30, 2006, are not necessarily
indicative of the results to be expected for the entire year.
Liquidity
and Risks
We
have a
history of incurring net losses and net operating cash flow deficits. We are
also deploying new and unproven technologies and continue to develop commercial
products. We have several ongoing long-term development projects that involve
experimental technology and may require several years and substantial
expenditures to complete. We believe that our cash and cash equivalent balances,
anticipated cash flows from operations and other external sources of available
credit will be sufficient to meet our cash requirements through September 30,
2007. In order for the Company to continue as a going concern beyond this point,
we will be required to obtain capital from external sources. However, there
can
be no assurances that additional sources of financing, including the issuance
of
debt and/or equity securities will be available at times and at terms acceptable
to us. The issuance of equity securities will also cause dilution to our
shareholders. If external financing sources of financing are not available
or
are inadequate to fund our operations, we will be required to reduce operating
costs including research projects and personnel, which could jeopardize the
future strategic initiatives and business plans of the Company. For example,
reductions in research and development activities and/or personnel at our
Mukilteo, Washington facility could result in the inability to invest the
resources necessary to continue to develop next-generation products and improve
existing product lines in order to remain competitive in the marketplace,
resulting in reduced revenues and cash flows from the sales of our CustomArray
products and services. Also, reduction in operating costs at our diagnostics
subsidiary in Irvine, California, (CMDX), should they occur, could jeopardize
its ability to launch, market and sell additional products and services
necessary in order to grow and sustain its operations and eventually achieve
profitability.
Our
business operations are also subject to certain risks and uncertainties,
including:
|
•
|
market
acceptance of products and
services;
|
|
•
|
technological
advances that may make our products and services obsolete or less
competitive;
|
|
•
|
increases
in operating costs, including costs for supplies, personnel and
equipment;
|
|
•
|
the
availability and cost of capital;
|
|
•
|
general
economic conditions; and
|
|
•
|
governmental
regulation that may restrict our
business.
|
Historically,
we have been substantially dependent on arrangements with strategic partners
and
have relied upon payments by our partners for a significant component of our
working capital. We intend to enter into additional strategic partnerships
to
develop and commercialize future products. However, there can be no assurance
that we will be able to implement our future plans. Failure to achieve our
plans
would have a material adverse effect on our ability to achieve our intended
business objectives. Our success also depends on our ability to protect our
intellectual property, the loss thereof or our failure to secure the issuance
of
additional patents covering elements of our business processes could materially
harm our business and financial condition. The patents covering our core
technology begin to expire in 2018.
Our
products and services are concentrated in a highly competitive market that
is
characterized by rapid technological advances, frequent changes in customer
requirements and evolving regulatory requirements and industry standards.
Failure to anticipate or respond adequately to technological advances, changes
in customer requirements, changes in regulatory requirements or industry
standards, or any significant delays in the development or introduction of
planned products or services, could have a material adverse effect on our
business and operating results. No adjustment has been made to these
consolidated financial statements as a result of these changes.
2.
SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES
Accounting
Principles and Fiscal Year End
.
The
consolidated financial statements and accompanying notes are prepared on the
accrual basis of accounting in accordance with generally accepted accounting
principles in the United States of America. We have a December 31
year-end.
Principles
of Consolidation
.
The
accompanying consolidated financial statements include the accounts of the
Company and our wholly owned and majority-owned subsidiaries. Investments for
which we possesses the power to direct or cause the direction of the management
and policies, either through majority ownership or other means, are accounted
for under the consolidation method. Material intercompany transactions and
balances have been eliminated in consolidation. Investments in companies in
which we maintain an ownership interest of 20% to 50% or exercise significant
influence over operating and financial policies are accounted for under the
equity method. The cost method is used where we maintain ownership interests
of
less than 20% and do not exercise significant influence over the investee.
The
Financial Accounting Standards Board Interpretation No. 46 (revised December
2003), “Consolidation of Variable Interest Entities,” (“FIN 46R), generally
stipulates that an entity is a variable interest entity, or VIE, if it does
not
have sufficient equity investment at risk, or if the holders of the entity's
equity instruments lack the essential characteristics of a controlling financial
interest. FIN 46R requires that the holder subject to a majority of the risk
of
loss from a VIE's activities must consolidate the VIE. However, if no holder
has
a majority of the risk of loss, then a holder entitled to receive a majority
of
the entity's residual returns would consolidate the entity.
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 agreement, (iii) amounts are fixed or determinable and (iv)
collectibility of amounts is reasonably assured.
Revenues
from multiple-element arrangements involving license fees, up-front payments,
milestone payments, products and/or services, 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, such as Statement of Position 81-1, “Accounting for Performance
of Construction-Type and Certain Production-Type Contracts.” 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 total contract costs. Actual
contract costs 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, including shipping and handling fees,
are recognized when delivery has occurred or services have been
rendered.
Deferred
revenues arise from payments received in advance of the culmination of the
earnings process. Deferred revenues expected to be recognized within the next
twelve months are classified within current liabilities. Deferred revenues
will
be recognized as revenue in future periods when the applicable revenue
recognition criteria as described above are met.
Cash
and Cash Equivalents
.
We
consider all highly liquid, short-term investments with original maturities
of
three months or less when purchased to be cash equivalents.
Short-term
Investments
.
Our
short-term investments are held in a variety of interest bearing instruments
including high-grade corporate bonds, money market accounts and other
high-credit quality marketable securities. Investments in securities with
original maturities of greater than nine months and less than one year and
other
investments representing amounts that are available for current operations
are
classified as short-term investments. Investments are classified in accordance
with the provisions of Statement of Financial Accounting Standards No. 115,
"Accounting for Certain Investments in Debt and Equity Securities" ("SFAS No.
115"). Investments are classified as available-for-sale, which are reported
at
fair value with related unrealized gains and losses in the value of such
securities recorded as a component of allocated net worth until realized. The
fair value of our investments is determined by quoted market prices. Realized
and unrealized gains and losses are recorded based on the specific
identification method. For investments classified as available-for-sale,
unrealized losses that are other than temporary are recognized in net loss.
An
impairment is deemed other than temporary unless (a) we have the ability and
intent to hold an investment for a period of time sufficient for recovery of
its
carrying amount and (b) positive evidence indicating that the investment’s
carrying amount is recoverable within a reasonable period of time outweighs
any
evidence to the contrary. All available evidence, both positive and negative,
is
considered to determine whether, based on the weight of that evidence, the
carrying amount of the investment is recoverable within a reasonable period
of
time. The cost of debt securities is adjusted for amortization of premiums
and
accretion of discounts to maturity. Such amortization is included in interest
income (expense). Interest and dividends on all securities are included in
interest income.
At
December 31, 2005 and September 30, 2006, we held $8,479,000 and $3,025,000
(unaudited), respectively, of short-term investments consisting of auction
rate
securities classified as available-for-sale. Our investments in these securities
are recorded at cost, which approximates fair market value due to their variable
interest rates, which typically reset every 7 to 35 days. Despite the long-term
nature of their stated contractual maturities, we have the ability to quickly
liquidate these securities and as a result, we had no cumulative gross
unrealized holding gains (losses) or gross realized gains (losses) from these
investments. All income generated from these investments was recorded as
interest income.
Concentration
of Credit Risks
.
Financial instruments that potentially subject the Company to concentrations
of
credit risk are cash equivalents and short-term investments. We position our
cash equivalents and short-term investments primarily in investment grade,
short-term debt instruments. Cash equivalents are invested in deposits with
certain financial institutions and may, at times, exceed federally insured
limits. We have not experienced any significant losses on our deposits of cash
and cash equivalents.
Collaboration
agreement revenues recognized by us for the years ended December 31, 2004 and
2005 relate to our collaborative research and development agreements with Roche
Diagnostics, GmbH ("Roche") and Toppan Printing, Ltd. ("Toppan"), respectively.
Government contract revenues recognized by us for all periods presented relate
to our ongoing contracts with the Department of Defense regarding our
electrochemical and microfluidics technologies. At December 31, 2004 and 2005
and at September 30, 2006, accounts receivable due from the Department of
Defense included $248,000, $537,000 and $237,000 (unaudited), respectively.
For
the years ended December 31, 2003, 2004 and 2005, and for the nine months ended
September 30, 2005 and 2006, 100%, 45%, 18%, 7.7% (unaudited) and 4% (unaudited)
of our array product and service revenues, respectively, were recognized by
CombiMatrix K.K. Two and five customers represented approximately 84% and 89%
(unaudited) of the CombiMatrix group’s accounts receivable at December 31, 2005
and September 30, 2006, respectively.
Substantially
all of the components and raw materials used in the manufacture of our products,
including semiconductors and reagents, are currently provided to us from a
limited number of sources or in some cases from a single source. Although we
believe that alternative sources for those components and raw materials are
available, any supply interruption in a sole-sourced component or raw material
might result in up to a several-month production delay and materially harm
our
ability to manufacture products until a new source of supply, if any, could
be
located and qualified. We utilize non-standard semiconductor manufacturing
processes to fabricate an electrode array that is a key aspect of the array
structure. Although we have a supply agreement in place with a semiconductor
wafer manufacturer to ensure availability of the raw materials, the agreement
does not guarantee a permanent supply.
Inventory
.
Inventory, which consists primarily of raw materials to be used in the
production of our array products, is stated at the lower of cost or market
using
the first-in, first-out method.
Property
and Equipment
.
Property and equipment is recorded at cost. Additions and improvements that
increase the value or extend the life of an asset are capitalized. Maintenance
and repairs are expensed as incurred. Disposals are removed at cost less
accumulated depreciation or amortization and any gain or loss from disposition
is reflected in the statement of operations in the period of disposition.
Depreciation is computed on a straight-line basis over the following estimated
useful lives of the assets:
Machine
shop and laboratory equipment
|
|
3
to 5 years
|
Furniture
and fixtures
|
|
5
to 7 years
|
Computer
hardware and software
|
|
3
years
|
Leasehold
improvements
|
|
Lesser
of lease term or useful life of improvement
|
|
|
|
Construction
in progress includes direct costs incurred related to internally constructed
assets which are depreciated once the asset is placed into service. Certain
leasehold improvements, furniture and equipment held under capital leases are
classified as property and equipment and are amortized over their useful lives
using the straight-line method. Lease amortization is included in depreciation
expense.
Organization
Costs
.
Costs
of start-up activities, including organization costs, are expensed as
incurred.
Patents
and Goodwill
.
Goodwill and identifiable intangibles, including patents, are recorded when
the
consideration paid for acquisitions exceeds the fair value of the net tangible
assets acquired. Patents, once issued or purchased, are amortized on the
straight-line method over their economic remaining useful lives, ranging from
seven to twenty years. Goodwill is not amortized.
Impairment
of Long-Lived Assets and Goodwill
.
Long-lived assets and intangible assets are reviewed for potential impairment
when events or changes in circumstances indicate the carrying amount of an
asset
may not be recoverable. In the event the sum of the expected undiscounted future
cash flows resulting from the use of the asset is less than the carrying amount
of the asset, an impairment loss equal to the excess of the asset’s carrying
value over its fair value is recorded. If an asset is determined to be impaired,
the loss is measured based on quoted market prices in active markets, if
available. If quoted market prices are not available, the estimate of fair
value
is based on various valuation techniques, including a discounted value of
estimated future cash flows.
Goodwill
is evaluated for impairment in accordance with SFAS No. 142, "Goodwill and
Other
Intangible Assets" ("SFAS No. 142") and 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 impairment may have occurred. We have elected to perform annual
tests for indications of goodwill impairment as of December 31 of each year.
The
fair value of our reporting units have been estimated using discounted cash
flow
analysis and by reference to quoted market prices of AR-CombiMatrix stock.
SFAS
No. 142 requires us to compare the fair value of our reporting units to their
carrying amounts on an annual basis to determine if there is potential goodwill
impairment. If the fair value of the reporting units is less than their carrying
value, an impairment loss is recorded to the extent that the fair value of
the
goodwill within the reporting unit is less than its carrying value. In
accordance with this policy and as more fully disclosed in Note 6, we recognized
a goodwill impairment charge of $565,000 for the year ended December 31, 2005.
There can be no assurance that future goodwill impairment tests will not result
in additional impairment charges.
Fair
Value of Financial Instruments
.
The
carrying value of cash and cash equivalents, accounts receivables, accounts
payable and accrued expenses approximate fair value due to their short-term
maturity.
Foreign
Currency Translation
.
The
functional currency of CombiMatrix K.K. is the local currency (Japanese Yen).
Foreign currency translation is reported pursuant to SFAS No. 52, "Foreign
Currency Translation" ("SFAS No. 52"). Assets and liabilities recorded in
foreign currencies are translated at the exchange rate on the balance sheet
date. Translation adjustments resulting from this process are charged or
credited to allocated net worth. Revenue and expenses are translated at average
rates of exchange prevailing during the year. Foreign currency transactions
gains and losses were insignificant for the years ended December 31, 2003,
2004
and 2005 and for the nine months ended September 30, 2005 and 2006
(unaudited).
Stock-based
Compensation (unaudited)
.
For all
periods presented, CombiMatrix Corporation did not have any stock option plans
authorized, nor were any stock options outstanding. However, since employees
of
CombiMatrix Corporation have been granted options to purchase AR-CombiMatrix
common stock, the following disclosures relating to AR-CombiMatrix stock option
plans and stock options outstanding have been included herein. Also, as of
the
Redemption Date, all but 3,458 outstanding options under Acacia’s stock-based
compensation plans relating to AR-CombiMatrix stock will immediately vest as
the
split off of the Company from Acacia constitutes a change in control for
purposes of the various option plans to which the options were originally
granted. As of September 30, 2006, we had $2,932,000 of unrecognized
compensation expense related to nonvested AR-CombiMatrix common stock option
awards outstanding (see Note 12). The actual amount to be recognized will be
the
amount of unamortized deferred compensation remaining as of the Redemption
Date.
Effective
January 1, 2006, we adopted the provisions of SFAS No. 123 (revised 2004),
"Share-Based Payment" ("SFAS No. 123R"), which sets forth the accounting
requirements for "share-based" compensation payments to employees and
non-employee directors and requires that compensation cost relating to
share-based payment transactions be recognized in the statement of operations.
In March 2005, the SEC published Staff Accounting Bulletin No. 107 ("SAB 107"),
which requires stock-based compensation to be classified in the same expense
line items as cash compensation (i.e. marketing, general and administrative
and
research and development expenses). The compensation cost for all stock-based
awards is measured at the grant date, based on the fair value of the award,
and
is recognized as an expense over the employee’s requisite service period
(generally the vesting period of the equity award). In addition, SFAS No. 123R
requires stock-based compensation expense to be recorded only for those awards
expected to vest using an estimated forfeiture rate. As such, SFAS No. 123R
requires us to estimate pre-vesting option forfeitures at the time of grant
and
reflect the impact of estimated pre-vesting option forfeitures on compensation
expense recognized. We considered several factors in connection with our
estimates of pre-vesting forfeitures including types of awards, employee class
and historical pre-vesting forfeiture data. Estimates of pre-vesting forfeiture
must be periodically revised in subsequent periods if actual forfeitures differ
from those estimates. To the extent that actual results differ from our
estimates, such amounts will be recorded as cumulative adjustments in the period
the estimates are revised. Prior to the adoption of SFAS No. 123R, we accounted
for forfeitures as they occurred under the pro forma disclosure provisions
of
SFAS No. 123, "Accounting for Stock-Based Compensation" ("SFAS No. 123"). All
references to stock-based compensation expense in these notes, upon adoption
of
SFAS No. 123R and unless otherwise indicated, refer to stock-based compensation
net of estimated forfeitures, as required by SFAS No. 123R.
We
adopted SFAS No. 123R using the modified prospective transition method. Under
this transition method, compensation cost recognized for the nine-month period
ended September 30, 2006 includes: (i) compensation cost for all stock-based
awards granted prior to, but not yet vested as of January 1, 2006 (based on
the
grant-date fair value estimated in accordance with the original provisions
of
SFAS No. 123 and presented as pro forma footnote disclosures), and (ii)
compensation cost for all stock-based awards granted subsequent to January
1,
2006 (based on the grant-date fair value estimated in accordance with the new
provisions of SFAS No. 123R). The cumulative effect of applying an estimated
forfeiture percentage to stock-based payments granted prior to, but not yet
vested as of January 1, 2006, was not material.
The
expected term assumption was determined in accordance with guidance set forth
in
SAB 107, which provides for a "simplified method" of estimating the expected
term for stock options granted prior to December 31, 2007, that 1) are granted
at-the-money, 2) are exercisable only upon completion of a service condition
through the vesting date, 3) require that employees who terminate their service
prior to vesting must forfeit the options, 4) provide that employees who
terminate their service after vesting are granted limited time to exercise
their
stock options (typically 30-90 days), and 5) are nontransferable and
non-hedgeable. The simplified method is based on the vesting period and the
contractual term for each grant, or for each vesting tranche of awards with
graded vesting. The mid-point between the vesting commencement date and the
expiration date is used as the expected term under this method. For awards
with
multiple vesting tranches, the times from grant until these midpoints for each
of the tranches may be averaged to provide an overall expected term. The fair
value of share-based awards is expensed on a straight-line basis over the
requisite service period (generally the vesting period of the award), which
is
generally two to four years.
Pre-2006
Stock-Based Compensation.
Prior
to
January 1, 2006, we accounted for share-based compensation to employees in
accordance with Accounting Principles Board Opinion No. 25, "Accounting for
Stock Issued to Employees" ("APB No. 25"), and related interpretations. We
also
followed the disclosure requirements of SFAS No. 123, as amended by SFAS No.
148, "Accounting for Stock-Based Compensation-Transition and Disclosure."
Because we previously adopted only the pro forma disclosure provisions of SFAS
No. 123, we will recognize compensation cost relating to the unvested portion
of
awards granted prior to the date of adoption using the same estimate of the
grant-date fair value and the same attribution method used to determine the
pro
forma disclosures under SFAS No. 123, except that forfeiture rates will be
estimated for all awards as required by SFAS No. 123R. In accordance with the
requirements of the modified prospective transition method of adoption of SFAS
No. 123R, the financial statement amounts for prior periods presented in these
notes have not been restated to reflect the fair value method of recognizing
compensation cost relating to stock-based awards.
The
fair
value of each option award is estimated on the date of grant using a
Black-Scholes option valuation model that uses the assumptions noted in the
table below. Expected volatility is based on the separate historical volatility
of the market prices of AR-CombiMatrix stock. Volatilities of peer companies
were also considered, when applicable, to address the lack of extensive
historical volatility data for AR-CombiMatrix stock. The risk-free rate for
the
expected term of the option is based on the U.S. Treasury yield curve in effect
at the time of grant.
The
fair
values of the options were estimated using the Black-Scholes option-pricing
model based on the following weighted average assumptions:
|
|
|
|
|
|
|
|
For
the Nine Months
|
|
|
|
For
the years ended December 31,
|
|
Ended
September 30,
|
|
|
|
2003
|
|
2004
|
|
2005
|
|
2005
|
|
2006
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Risk
free interest rate
|
|
|
2.89
%
|
|
|
3.18
%
|
|
|
3.84
%
|
|
|
3.83
%
|
|
|
5.06
%
|
|
Volatility
|
|
|
100
%
|
|
|
100
%
|
|
|
88
%
|
|
|
88
%
|
|
|
82
%
|
|
Expected
term
|
|
|
5
years
|
|
|
5
years
|
|
|
5
years
|
|
|
5
years
|
|
|
6
years
|
|
Expected
dividends
|
|
|
0
%
|
|
|
0
%
|
|
|
0
%
|
|
|
0
%
|
|
|
0
%
|
|
Stock-based
compensation expense for all periods presented attributable to various
functional expense categories such as research and development and marketing,
general and administrative expenses were as follows:
|
|
|
|
|
|
|
|
For
the Nine Months
|
|
|
|
For
the years ended December 31,
|
|
Ended
September 30,
|
|
|
|
2003
|
|
2004
|
|
2005
|
|
2005
|
|
2006
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research
and development
|
|
$
|
466
|
|
$
|
91
|
|
$
|
-
|
|
$
|
-
|
|
$
|
797
|
|
Marketing,
general and administrative
|
|
|
1,189
|
|
|
663
|
|
|
(159
|
)
|
|
(146
|
)
|
|
959
|
|
Total
non-cash stock compensation
|
|
$
|
1,655
|
|
$
|
754
|
|
$
|
(159
|
)
|
$
|
(146
|
)
|
$
|
1,756
|
|
In
aggregate, the impact of adopting SFAS No. 123R was $1,717,000 (unaudited),
or
$0.03 per pro forma basic and diluted loss per share (assuming 52,365,810 shares
outstanding) (unaudited) for the nine months ended September 30, 2006. Awards
granted prior to our implementation of SFAS No. 123R were accounted for under
the recognition and measurement principles of APB No. 25 and related
interpretations. Accordingly, no stock-based employee compensation cost was
reflected in net loss in the accompanying consolidated statements of operations
for all other periods presented because all options granted had exercise prices
equal to the market value of the underlying common stock on the date of
grant.
The
following table illustrates the pro forma effect on net loss if we had applied
the fair value recognition provisions of SFAS No. 123 (in
thousands):
|
|
|
|
|
|
|
|
For
the Nine
|
|
|
|
For
the years ended December 31,
|
|
Months
Ended
|
|
|
|
2003
|
|
2004
|
|
2005
|
|
Sept.
30, 2005
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
Income
(loss) from operations as reported
|
|
$
|
(18,969
|
)
|
$
|
710
|
|
$
|
(12,401
|
)
|
$
|
(10,616
|
)
|
Add:
Stock-based compensation, intrinsic
|
|
|
|
|
|
|
|
|
|
|
|
|
|
value
method reported in net loss, net of tax
|
|
|
1,475
|
|
|
606
|
|
|
-
|
|
|
-
|
|
Deduct:
Pro forma stock-based compensation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
fair
value method
|
|
|
(9,029
|
)
|
|
(6,127
|
)
|
|
(2,834
|
)
|
|
(2,549
|
)
|
Loss
from operations, pro forma
|
|
$
|
(26,523
|
)
|
$
|
(4,811
|
)
|
$
|
(15,235
|
)
|
$
|
(13,165
|
)
|
Research
and Development Expenses
.
Research and development expenses consist of costs incurred for direct and
overhead-related research expenses and are expensed as incurred. Costs to
acquire technologies which are utilized in research and development and which
have no alternative future use are expensed when incurred. Software developed
for use in our products is expensed as incurred until both (i) technological
feasibility for the software has been established and (ii) all research and
development activities for the other components of the system have been
completed. We believe these criteria are met after we have received evaluations
from third-party test sites and completed any resulting modifications to the
products. Expenditures to date have been classified as research and development
expense.
Advertising
.
Costs
associated with marketing and advertising of our products and services are
expensed as incurred. For the years ended December 31, 2003, 2004 and 2005,
we
incurred marketing and advertising expenses of $26,000, $314,000 and $516,000,
respectively.
Income
Taxes
.
Income
taxes are accounted for using an asset and liability approach that requires
the
recognition of deferred tax assets and liabilities for the expected future
tax
consequences of events that have been recognized in our financial statements
or
tax returns. A valuation allowance is established to reduce deferred tax assets
if all, or some portion, of such assets will more than likely not be
realized.
Segments
.
We
follow SFAS No. 131, "Disclosure about Segments of an Enterprise and Related
Information" ("SFAS No. 131"), which establishes annual and interim reporting
standards for an enterprise’s operating segments and related disclosures about
our products, services, geographic areas and major customers. We have determined
that we operate in one segment.
Use
of Estimates
.
The
preparation of financial statements in conformity with U.S. generally accepted
accounting principles requires management to make estimates and assumptions
that
affect the reported amount of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the combined financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from these estimates.
Income
(Loss) Per Share
.
As
discussed in Note 1, we have been a wholly owned subsidiary of Acacia since
the
Merger Date and have had 100 shares of common stock outstanding for all periods
presented. Therefore, historical earnings (losses) per share have not been
presented in the consolidated financial statements as this information is not
considered meaningful.
Reclassifications
.
Certain
reclassifications have been made to prior period financial statements in order
to conform to the current period’s presentation.
Recent
Accounting Pronouncements
.
In
February 2006, the FASB issued FAS No. 155, "Accounting for Certain Hybrid
Financial Instruments," an amendment of FAS No. 133 and FAS No. 140. FAS No.
155
simplifies accounting for certain hybrid instruments under FAS No. 133 by
permitting fair value remeasurement for financial instruments that otherwise
would require bifurcation and eliminating FAS No. 133 Implementation Issue
No.
D1, "Application of Statement 133 to Beneficial Interests in Securitized
Financial Assets," which provides that beneficial interests are not subject
to
the provisions of FAS No. 133. FAS No. 155 also eliminates the previous
restriction under FAS No. 140 on passive derivative instruments that a
qualifying special-purpose entity may hold. FAS No. 155 is effective for all
financial instruments acquired, issued, or subject to a remeasurement event
occurring after the beginning of an entity’s fiscal year that begins after
September 15, 2006. We do not expect the adoption of this statement to have
a
material impact on our financial position, results of operations or cash
flows.
In
March
2006, the FASB issued FAS No. 156, "Accounting for Servicing of Financial
Assets," an amendment of FASB Statement No. 140. FAS No. 156 permits entities
to
choose to either subsequently measure servicing rights at fair value and report
changes in fair value in earnings or amortize servicing rights in proportion
to
and over the estimated net servicing income or loss and assess to rights for
impairment or the need for an increased obligation. FAS No. 156 also clarifies
when a servicer should separately recognize servicing assets and liabilities,
requires all separately recognized assets and liabilities to be initially
measured at fair value, if practicable, permits a one-time reclassification
of
available-for-sales securities to trading securities by an entity with
recognized servicing rights and requires additional disclosures for all
separately recognized servicing assets and liabilities. FAS No. 156 is effective
as of the beginning of an entity’s fiscal year that begins after September 15,
2006. We do not expect the adoption of this statement to have a material impact
on our financial position, results of operations or cash flows.
In
July
2006, the FASB issued Interpretation No. 48 ("FIN 48"), "Accounting for
Uncertainty in Income Taxes," which clarifies the accounting for uncertainty
in
income taxes recognized in the financial statements in accordance with FASB
Statement No. 109, "Accounting for Income Taxes." FIN 48 provides guidance
on
the financial statement recognition and measurement of a tax position taken
or
expected to be taken in a tax return. FIN 48 also provides guidance on
derecognition, classification, interest and penalties, accounting in interim
periods, disclosures, and transition. FIN 48 is effective for fiscal years
beginning after December 15, 2006. We are currently evaluating the impact of
this standard on our consolidated and separate operating group financial
statements.
In
September 2006, the SEC issued Staff Accounting Bulletin No. 108 ("SAB 108"),
"Considering the Effects of Prior Year Misstatements when Quantifying
Misstatements in Current Year Financial Statements." SAB 108 is effective for
fiscal years ending on or after November 15, 2006 and addresses how financial
statement errors should be considered from a materiality perspective and
corrected. The literature provides interpretive guidance on how the effects
of
the carryover or reversal of prior year misstatements should be considered
in
quantifying a current year misstatement. Historically there have been two common
approaches used to quantify such errors: (i) the "rollover" approach, which
quantifies the error as the amount by which the current year income statement
is
misstated, and (ii) the "iron curtain" approach, which quantifies the error
as
the cumulative amount by which the current year balance sheet is misstated.
The
SEC Staff believes that companies should quantify errors using both approaches
and evaluate whether either of these approaches results in quantifying a
misstatement that, when all relevant quantitative and qualitative factors are
considered, is material. Historically, we have evaluated uncorrected differences
utilizing the "rollover" approach, and we are currently evaluating the impact,
if any, of adopting the provisions of SAB 108 on our consolidated and separate
group financial position, results of operations and cash flows.
In
September 2006, the FASB issued SFAS No. 157, "Fair Value Measurements" (SFAS
No. 157). SFAS No. 157 establishes a common definition for fair value to be
applied to US GAAP guidance requiring use of fair value, establishes a framework
for measuring fair value, and expands disclosure about such fair value
measurements. SFAS No. 157 is effective for fiscal years beginning after
November 15, 2007. We are currently assessing the impact, if any, of adopting
SFAS No. 157 on our consolidated and separate group financial position, results
of operations and cash flows.
3.
SHORT-TERM
INVESTMENTS
Short-term
investments consist of the following at December 31, 2004 and 2005 (in
thousands):
|
|
2004
|
|
2005
|
|
|
|
Amortized
|
|
Fair
|
|
Amortized
|
|
Fair
|
|
|
|
Cost
|
|
Value
|
|
Cost
|
|
Value
|
|
Available-for-sale
securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
bonds and notes
|
|
$
|
6,562
|
|
$
|
6,541
|
|
$
|
3,726
|
|
$
|
3,717
|
|
U.S.
government securities
|
|
|
14,220
|
|
|
14,186
|
|
|
2,358
|
|
|
2,351
|
|
Auction
market securities
|
|
|
-
|
|
|
-
|
|
|
8,480
|
|
|
8,479
|
|
|
|
$
|
20,782
|
|
$
|
20,727
|
|
$
|
14,564
|
|
$
|
14,547
|
|
Gross
unrealized gains and losses related to available-for-sale securities were not
material for the periods presented. All investments in securities classified
as
available-for-sale at December 31, 2004 have contractual maturities of one
year
or less. At December 31, 2005, the cost and fair market value of securities
with
contractual maturities of greater than one year, other than auction market
securities, was $1,254,000 and $1,251,000, respectively. As disclosed in Note
2,
auction market securities are classified as short-term, available for sale
securities due to our ability to quickly liquidate these
securities.
4.
PROPERTY
AND EQUIPMENT
Property
and equipment consists of the following at December 31, 2004 and 2005 (in
thousands):
|
|
2004
|
|
2005
|
|
|
|
|
|
|
|
Machine
shop and laboratory equipment
|
|
$
|
3,791
|
|
$
|
4,931
|
|
Furniture
and fixtures
|
|
|
162
|
|
|
173
|
|
Computer
hardware and software
|
|
|
829
|
|
|
983
|
|
Leasehold
improvements
|
|
|
998
|
|
|
1,027
|
|
Construction
in progress
|
|
|
359
|
|
|
17
|
|
|
|
|
6,139
|
|
|
7,131
|
|
Less:
accumulated depreciation and amortization
|
|
|
(3,809
|
)
|
|
(4,768
|
)
|
|
|
$
|
2,330
|
|
$
|
2,363
|
|
Depreciation
and amortization expense was $1,314,000, $1,105,000 and $1,088,000 for the
years
ended December 31, 2003, 2004 and 2005, respectfully. Fully depreciated assets
of $663,000 were written off in 2004.
5.
INVESTMENTS
In
October 2004 (the "Investment Date"), we entered into an agreement to acquire
up
to a one-third-ownership interest in Leuchemix, Inc. ("Leuchemix"), a private
drug development firm, which is developing several compounds for the treatment
of leukemia and other cancers. In accordance with the terms of the purchase
agreement, we purchased 3,137,500 shares of Series A Preferred Stock of
Leuchemix for a total purchase price of $4,000,000. The ownership interest
was
acquired and paid for quarterly, beginning with the fourth quarter of 2004
and
continuing through the fourth quarter of 2006. Our CEO is also a director of
Leuchemix. As of December 31, 2004, 2005 and September 30, 2006, we had invested
a combined $250,000, $1,850,000 and $3,250,000 (unaudited), representing a
3%,
19% and 29% (unaudited) interest, respectively, in the total outstanding voting
securities of Leuchemix. On October 3, 2006, we made our final contractual
investment under this agreement of $750,000, bringing our ownership percentage
to 33% (unaudited). This investment is being accounted for under the equity
method.
Our
interest in the equity in loss of Leuchemix, including our share of the
amortization expense related to the excess purchase consideration over the
book
value of Leuchemix was $17,000 and $352,000 for the years ended December 31,
2004 and 2005, and was $202,000 (unaudited) and $717,000 (unaudited) for the
nine months ended September 30, 2005 and 2006, respectively. Summary financial
information for Leuchemix was not significant as of December 31, 2004, 2005
or
as of September 30, 2006.
In
January 2006, we expanded our relationship with one of our existing
distributors, InBio, for the Asia Pacific region. Major components of the
expanded relationship included the transfer of day-to-day operational
responsibility and majority ownership of CombiMatrix K.K. to InBio, along with
an expanded distribution agreement that encompasses Japan. InBio obtained 67%
of
the voting interests in CombiMatrix K.K. for a nominal amount of consideration.
As a result, InBio assumed all operational and financial responsibilities of
CombiMatrix K.K. The net loss on the sale of 67% of the voting interest in
CombiMatrix K.K. recorded in the consolidated statement of operations for the
nine months ended September 30, 2006 was $84,000. Subsequent to the sale, our
investment in CombiMatrix K.K. was accounted for under the equity method. The
deconsolidation of CombiMatrix K.K. did not have a material impact on the
consolidated balance sheets as of September 30, 2006.
6.
INTANGIBLES
We
had
$19,424,000 and $18,859,000 of goodwill as of December 31, 2004 and 2005,
respectively, $565,000 of which resulted from step-acquisitions of Advanced
Materials Sciences, Inc. ("AMS") and CombiMatrix K.K. during July 2003. These
reporting units were tested for impairment in the fourth quarter of 2005 in
connection with our annual forecasting process. Due to the lack of third-party
research and development funding for AMS and declining array product sales
at
CombiMatrix K.K., operating profits and cash flows were lower than expected
during the preceding three quarters for these reporting units. Based on these
trends, the operating forecasts for 2006 were revised downward and as a result,
a goodwill impairment loss of $565,000 was recognized in December 2005. The
fair
values of these reporting units were estimated using the expected present value
of their future cash flows.
Our
only
identifiable intangible assets are patents, which are being amortized over
an
economic useful life of ranging from 7 to 20 years. The gross carrying amounts
and accumulated amortization related to acquired intangible assets, all related
to patents, as of December 31, 2004 and 2005, are as follows (in
thousands):
|
|
2004
|
|
2005
|
|
|
|
|
|
|
|
Gross
carrying amount - patents
|
|
$
|
12,095
|
|
$
|
12,095
|
|
Accumulated
amortization
|
|
|
(3,074
|
)
|
|
(4,169
|
)
|
Patents,
net
|
|
$
|
9,021
|
|
$
|
7,926
|
|
Aggregate
patent amortization expense was $1,095,000, $1,096,000 and $1,095,000 in 2003,
2004 and 2005, respectively. Annual aggregate amortization expense for each
of
the next five years through December 31, 2010 is estimated to be $1,095,000
per
year. As of September 30, 2006, we reduced our goodwill and deferred tax
liability balances by $1,941,000, which were initially recorded in fiscal 2000,
to properly reflect the reduction in our income tax valuation allowance after
consideration of the deferred tax liability.
7.
BALANCE
SHEET COMPONENTS
Accounts
payable, accrued expenses and other consists of the following at
December 31, 2004 and December 31, 2005 (in thousands):
|
|
2004
|
|
2005
|
|
|
|
|
|
|
|
Accounts
payable
|
|
$
|
540
|
|
$
|
855
|
|
Payroll
and other employee benefits
|
|
|
317
|
|
|
394
|
|
Accrued
vacation
|
|
|
355
|
|
|
455
|
|
Deferred
rent
|
|
|
340
|
|
|
315
|
|
Accrued
consulting and other professional fees
|
|
|
299
|
|
|
268
|
|
Other
accrued liabilities
|
|
|
113
|
|
|
196
|
|
|
|
$
|
1,964
|
|
$
|
2,483
|
|
Deferred
revenues consist of the following at December 31, 2004 and 2005 (in
thousands):
|
|
2004
|
|
2005
|
|
Milestone
and up-front payments
|
|
$
|
3,959
|
|
$
|
1,604
|
|
Less:
current portion
|
|
|
(66
|
)
|
|
(165
|
)
|
|
|
$
|
3,893
|
|
$
|
1,439
|
|
In
March
2004, we completed all phases of our research and development agreement with
Roche. As a result of completing all of our obligations under this agreement
and
in accordance with our revenue recognition policies for multiple-element
arrangements, we recognized all previously deferred payments from Roche as
research and development contract revenues totaling $17,302,000 in the
accompanying December 31, 2004 consolidated statement of
operations.
In
2003,
we received upfront and milestone payments from Toppan totaling $2,400,000,
pursuant to a multi-year collaboration and supply agreement to develop and
manufacture arrays using our proprietary electrochemical detection approach.
In
August 2004, we received a $1,000,000 upfront payment from Furuno Electric
Co.,
LTD ("Furuno") as part of a multi-year collaboration agreement to develop a
bench-top array synthesizer for commercial applications. The payments received
from Toppan and Furuno were included in deferred revenues at December 31, 2004
in accordance with our revenue recognition policies for multiple-element
arrangements. During the fourth quarter of 2005, we had completed all
obligations under our collaboration and supply agreement with Toppan and as
a
result, we recognized all previously deferred payments from Toppan as research
and development contract revenues totaling $2,266,000 in the accompanying
December 31, 2005 consolidated statement of operations. During the third quarter
of 2006, we entered into a Manufacturing Agreement with Furuno and completed
our
obligations under our collaboration agreement with Furuno. As a result, we
began
amortizing the $1,000,000 upfront payment over the economic life of the
Manufacturing Agreement, which is estimated to be four years.
8.
INCOME
TAXES
Our
allocated benefit for income taxes consists of the following (in
thousands):
|
|
2003
|
|
2004
|
|
2005
|
|
Current:
|
|
|
|
|
|
|
|
|
|
|
U.S.
Federal tax
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
State
taxes
|
|
|
-
|
|
|
-
|
|
|
(31
|
)
|
|
|
|
-
|
|
|
-
|
|
|
(31
|
)
|
Deferred:
|
|
|
|
|
|
|
|
|
|
|
U.S.
Federal tax
|
|
|
(136
|
)
|
|
(136
|
)
|
|
(136
|
)
|
State
taxes
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
(136
|
)
|
|
(136
|
)
|
|
(136
|
)
|
|
|
$
|
(136
|
)
|
$
|
(136
|
)
|
$
|
(167
|
)
|
The
tax
effects of temporary differences and carryforwards that give rise to significant
portions of deferred assets and liabilities consist of the following at December
31, 2004 and 2005 (in thousands):
|
|
2004
|
|
2005
|
|
Deferred
tax assets:
|
|
|
|
|
|
|
|
Depreciation
and amortization
|
|
$
|
(203
|
)
|
$
|
(170
|
)
|
Deferred
revenues
|
|
|
829
|
|
|
489
|
|
Stock
compensation
|
|
|
7,491
|
|
|
7,437
|
|
Accrued
liabilities and other
|
|
|
218
|
|
|
108
|
|
Net
operating loss carryforwards and credits
|
|
|
32,459
|
|
|
36,310
|
|
Total
deferred tax assets
|
|
|
40,794
|
|
|
44,174
|
|
Less:
valuation allowance
|
|
|
(40,794
|
)
|
|
(44,174
|
)
|
Deferred
tax assets, net of valuation allowance
|
|
|
-
|
|
|
-
|
|
Deferred
tax liabilities:
|
|
|
|
|
|
|
|
Intangibles
|
|
|
(2,112
|
)
|
|
(1,975
|
)
|
Net
deferred tax liability
|
|
$
|
(2,112
|
)
|
$
|
(1,975
|
)
|
As
of
September 30, 2006, and as previously disclosed in Note 6 above, we reduced
our
deferred tax liability and goodwill balances by $1,941,000, which were initially
recorded in fiscal 2000, to
properly
reflect the reduction in our income tax valuation allowance after consideration
of the deferred tax liability.
A
reconciliation of the federal statutory income tax rate and the effective income
tax rate is as follows:
|
|
2003
|
|
2004
|
|
2005
|
|
Statutory
federal tax rate
|
|
|
(34%)
|
|
|
(34%)
|
|
|
(34%
|
|
Goodwill
impairment
|
|
|
-
|
|
|
-
|
|
|
2%
|
|
Tax
exempt interest
|
|
|
-
|
|
|
10%
|
|
|
-
|
|
Impact
of foreign rate difference
|
|
|
-
|
|
|
10%
|
|
|
4%
|
|
Research
and development tax credits
|
|
|
-
|
|
|
70%
|
|
|
(5%)
|
|
Stock
compensation
|
|
|
1%
|
|
|
4%
|
|
|
-
|
|
Non
deductible permanent items
|
|
|
-
|
|
|
11%
|
|
|
4%
|
|
Valuation
allowance
|
|
|
36%
|
|
|
(50%)
|
|
|
27%
|
|
Other
|
|
|
(4%)
|
|
|
2%
|
|
|
1%
|
|
|
|
|
(1%)
|
|
|
23%
|
|
|
(1%)
|
|
At
December 31, 2005, we had deferred tax assets totaling approximately
$44,174,000, which are fully offset by a valuation allowance due to our
determination that the criteria for asset recognition have not been met. At
December 31, 2005, we had federal net operating loss carryforwards of
approximately $101,645,000, which will begin to expire in 2010 through 2025.
In
addition, we have tax credit carryforwards of approximately $3,459,000.
Utilization of net operating loss carryforwards and tax credit carryforwards
are
subject to the "change of ownership" provisions under Section 382 of the
Internal Revenue Code. The amount of such limitations has not been determined.
Based on a tax allocation agreement recently executed between us and Acacia,
it
is expected that all tax benefits, carryforwards and balances attributable
to
CombiMatrix Corporation prior to the Redemption Date will remain with the
Company subsequent to the Redemption Date (unaudited).
Our
annual income tax returns have historically been included with Acacia’s
consolidated tax return filings. Had we filed separate tax returns, the benefit
for income taxes recognized by us would not have differed from the amounts
reported in our consolidated statements of operations all years
presented.
9.
COMMITMENTS
AND CONTINGENCIES
Operating
Leases
In
October 2000, we entered into a non-cancelable operating lease for office space.
A security deposit in the form of a $1,500,000 letter of credit was issued
to
the landlord. Future minimum operating lease payments as of December 31, 2005
are as follows (in thousands):
Year
|
|
|
|
|
|
|
|
2006
|
|
$
|
1,886
|
|
2007
|
|
|
1,937
|
|
2008
|
|
|
1,615
|
|
2009
|
|
|
-
|
|
Thereafter
|
|
|
-
|
|
Total
minimum lease payments
|
|
$
|
5,438
|
|
Rent
expense for the years ended December 31, 2003, 2004 and 2005 was $2,006,000,
$1,933,000 and $1,955,000, respectively.
Collaborative
and Research Agreements
As
disclosed in Note 5, we have entered into an agreement with Leuchemix to
purchase a total of $4,000,000 of Series A Preferred Stock of Leuchemix over
a
two-year period. As of December 31, 2005, future contractual cash investments
by
us in Leuchemix were $2,150,000, all of which were made as of October 2, 2006
(unaudited).
In
March
2004, we were awarded a two-year, $5.9 million contract with the Department
of
Defense ("DoD") to further the development of our array technology for the
detection of biological and chemical threat agents. Under the terms of the
contract, we performed research and development activities as described under
the contract and were reimbursed on a periodic basis for actual costs incurred
to perform our obligations, plus a fixed fee, of approximately $5.9 million.
This project was concluded in December 2005. As a result, there are no future
revenues or expenses to be recognized in future periods under this
agreement.
On
February 8, 2006, we executed a one-year, $2.1 million contract with the DoD
to
further the development of our array technology for the electrochemical
detection of biological and chemical threat agents. Under the terms of this
contract, we will perform research and development activities as described
under
the contract and will be reimbursed on a periodic basis for actual costs
incurred to perform our obligations, plus a fixed fee, of up to $2.1 million.
As
of September 30, 2006, we had incurred $1.1 million in actual costs for the
electrochemical detection contract, which was approximately 68% complete
(unaudited).
On
August
9, 2006 (unaudited), we executed a two-year, $1.9 million contract with the
DoD,
focusing on the integration of our electrochemical detection technology
currently under development with our microfluidics "lab-on-a-chip" technology
to
be used for military and homeland security applications. Under the terms of
this
contract, we will perform research and development activities, as described
under the contract, and will be reimbursed on a periodic basis for actual costs
incurred to perform these obligations, plus a fixed fee, of up to $1.9 million.
As of September 30, 2006, we had incurred $61,000 in actual costs for the
microfluidics contract, which was approximately 4% complete
(unaudited).
Human
Resources
We
provide certain severance benefits such that if an executive who is a vice
president or higher is terminated for other than cause, death or disability,
the
executive will receive payments equal to three months’ base salary plus medical
and dental benefits. If termination occurs as a result of a change in control
transaction, these benefits will be extended by three months.
Litigation
On
September 30, 2002, we entered into a settlement agreement with Nanogen, Inc.
("Nanogen") to settle all pending litigation between the parties. Pursuant
to
the terms of the settlement agreement, we agreed to make quarterly payments
to
Nanogen equal to 12.5% of total sales of products developed by us and our
affiliates 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 were $37,500 per quarter for the period from October 1,
2003 through October 1, 2004, and $25,000 per quarter thereafter until the
patents expire. The settlement agreement also provided for certain anti-dilution
provisions related to the exercise of CombiMatrix Corporation options and
warrants that were outstanding on the effective date of the agreement, for
a
period of up to three years. For the years ended December 31, 2003, 2004 and
2005 and for the nine months ended September 30, 2005 and 2006, we recognized
net non-cash charges (credits) totaling $144,000, $812,000, $(406,000),
$(406,000) (unaudited) and $0 (unaudited), respectively, in connection with
the
anti-dilution provisions of the settlement agreement. The non-cash charges
(credits) reflect our estimates of the fair value of AR-CombiMatrix stock issued
to Nanogen as a result of certain options and warrants exercised during 2004
and
the fair value of AR-CombiMatrix stock potentially issuable to Nanogen, Inc.
as
of December 31, 2003 and 2004. Prior to the third quarter of 2005, the liability
was adjusted at each balance sheet date for changes in the market value of
the
AR-CombiMatrix stock and was reflected as a long-term liability. The
anti-dilution provisions of the settlement agreement expired in September 2005,
resulting in a net non-cash credit of $211,000 (unaudited) from extinguishing
the related liability as of that date. There are no future stock-based
obligations to Nanogen as a result.
In
addition to other terms of the settlement agreement with Nanogen, we are also
required to make quarterly payments to Nanogen equal to 12.5% of payments made
to us from sales of certain products developed by us and our affiliates that
are
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 are $25,000 per quarter until the patents expire in 2018. Royalties
recognized under the agreement for the years ended December 31, 2003, 2004,
2005
and during the nine months ended September 30, 2005, and 2006, were $83,000,
$138,000 $217,000, $130,000 (unaudited) and $253,000 (unaudited), respectively
and are included in patent amortization and royalties in the accompanying
consolidated statements of operations.
We
are
subject to other claims and legal actions that arise in the ordinary course
of
business. We believe 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. Based on a distribution agreement
recently executed between us and Acacia, it is expected that such claims, legal
actions, etc. attributable to CombiMatrix Corporation prior to the Redemption
Date will remain with the Company subsequent to the Redemption Date
(unaudited).
10.
RETIREMENT
SAVINGS PLAN
We
have
an employee savings and retirement plan under section 401(k) of the Internal
Revenue Code (the "Plan"). The Plan is a defined contribution plan in which
eligible employees may elect to have a percentage of their compensation
contributed to the Plan, subject to certain guidelines issued by the Internal
Revenue Service. We may contribute to the Plan at the discretion of Acacia’s
board of directors. There were no contributions made by the Company during
the
years ended December 31, 2003, 2004 and 2005 or for the nine months ended
September 30, 2005 and 2006.
11.
ALLOCATED
NET WORTH
Our
consolidated statements of allocated net worth include the equity transactions
of Acacia, which are attributed to us as "net allocations from Acacia." Such
transactions have been incurred by Acacia and subsequently allocated us.
Presented below is a detail of the net allocations from Acacia for all periods
presented:
|
|
Net
Allocations from Acacia
|
|
2003
|
|
|
|
Units
issued in private placement, net of issuance costs
|
|
$
|
4,862
|
|
Allocated
corporate charges
|
|
|
620
|
|
Stock
options and warrants exercised
|
|
|
953
|
|
Employee
stock grant
|
|
|
60
|
|
Stock
option cancellations
|
|
|
(256
|
)
|
Compensation
expense relating to stock options and warrants
|
|
|
1,849
|
|
Unrealized
loss on short-term investments
|
|
|
(27
|
)
|
Unrealized
gain on foreign currency translation
|
|
|
35
|
|
Shares
issued to Nanogen pursuant to September 2002 settlement agreement
(see
Note 9)
|
|
|
74
|
|
Stock
issuance related to acquisition of minority interests in Advanced
Material
Sciences and CombiMatrix K.K.
|
|
|
1,219
|
|
Net
allocations from Acacia - 2003
|
|
$
|
9,389
|
|
2004
|
|
|
|
Units
issued in direct offering, net of issuance costs
|
|
$
|
13,715
|
|
Allocated
corporate charges
|
|
|
396
|
|
Stock
options and warrants exercised
|
|
|
5,117
|
|
Stock
option cancellations
|
|
|
(185
|
)
|
Compensation
expense relating to stock options and warrants
|
|
|
939
|
|
Unrealized
loss on short-term investments
|
|
|
(59
|
)
|
Unrealized
loss on foreign currency translation
|
|
|
(20
|
)
|
Shares
issued to Nanogen pursuant to September 2002 settlement agreement
(see
Note 9)
|
|
|
478
|
|
Net
allocations from Acacia - 2004
|
|
$
|
20,381
|
|
2005
|
|
|
|
|
Units
issued in direct offerings, net of issuance costs
|
|
$
|
12,724
|
|
Warrants
issued in direct offerings, re-classified as long-term
liabilities
|
|
|
(2,194
|
)
|
Allocated
corporate charges
|
|
|
179
|
|
Stock
options and warrants exercised
|
|
|
11
|
|
Compensation
expense relating to stock options and warrants
|
|
|
(160
|
)
|
Unrealized
gain on short-term investments
|
|
|
38
|
|
Unrealized
gain on foreign currency translation
|
|
|
73
|
|
Net
allocations from Acacia - 2005
|
|
$
|
10,671
|
|
2006
(unaudited)
|
|
|
|
|
Units
issued in direct offerings, net of issuance costs
|
|
$
|
2,647
|
|
Allocated
corporate charges
|
|
|
130
|
|
Stock
issued to consultant
|
|
|
94
|
|
Compensation
expense relating to stock options and warrants
|
|
|
1,759
|
|
Unrealized
gain on short-term investments
|
|
|
10
|
|
Reclassification
of foreign currency translation
|
|
|
(60
|
)
|
Net
allocations from Acacia - For the nine months ended September 30,
2006
(unaudited)
|
|
$
|
4,580
|
|
Equity
Financings
In
May
2003, Acacia completed a private equity financing, raising gross proceeds of
$5,247,000 through the issuance of 2,385,000 units. Each unit consists of one
share of AR-CombiMatrix common stock and one-half five-year callable common
stock purchase warrant. Each full common stock purchase warrant entitles the
holder to purchase a share of AR-CombiMatrix stock at a price of $2.75 per
share
and is callable by Acacia once the daily average of the high and low prices
of
the AR-CombiMatrix stock on the Nasdaq exchange is equal to or above $4.50
for
20 consecutive trading days. Acacia issued an additional 31,502 units of
AR-CombiMatrix stock in lieu of cash payments in conjunction with the private
placement for finder’s fees. Net proceeds raised from the private equity
financing of $4,862,000 were attributed to us.
In
April
2004, Acacia raised gross proceeds of approximately $15,000,000 through the
sale
of 3,000,000 shares of AR-CombiMatrix stock in a registered direct offering.
The
net proceeds of approximately $13,715,000 from this offering were attributed
to
us.
In
July
2005, Acacia raised gross proceeds of $3,151,000 through the sale of 1,400,444
shares of AR CombiMatrix stock at a price of $2.25 per share in a registered
direct offering. Net proceeds raised of approximately $3,114,000, which are
net
of related issuance costs, were attributed to us.
In
September 2005, Acacia raised gross proceeds of $10,537,000 through the sale
of
6,385,907 shares of AR-CombiMatrix stock and 1,596,478 AR-CombiMatrix stock
purchase warrants at a price of $1.65 per unit in a registered direct offering.
Each unit consisted of one share of AR-CombiMatrix stock and one-quarter of
a
five-year AR-CombiMatrix stock purchase warrant. Each full AR-CombiMatrix stock
purchase warrant entitles the holder to purchase a share of AR-CombiMatrix
stock
at a price of $2.40 per share and is exercisable immediately upon issue. Net
proceeds raised of approximately $9,609,000, which are net of related issuance
costs, were attributed to us.
See
Notes
15, 16 and 17 below for discussion of additional financing activities subsequent
to December 31, 2005.
Warrants
At
December 31, 2005 there were 1,596,478 warrants outstanding issued in connection
with the September 2005 equity financing discussed above, representing rights
to
purchase AR-CombiMatrix common stock at a per share exercise price of $2.40,
which are exercisable through September 2010. At December 31, 2004 and 2005,
there were 283,410 warrants outstanding issued in connection with the May 2003
equity financing discussed above, representing rights to purchase AR-CombiMatrix
common stock at a per share exercise price of $2.75, which are exercisable
through May 2008.
Acacia’s
classes of common stock are subject to redemption provisions under certain
circumstances. Pursuant to guidance set forth in FSP No. 150-5, we initially
recorded a long-term warrant liability in the amount of $2,193,000, representing
the fair value of 1,879,888 potentially redeemable AR-CombiMatrix stock warrants
outstanding. This liability is adjusted at each balance sheet date for changes
in the market value of the AR-CombiMatrix stock with the corresponding charge
(credit) reflected in our consolidated statements of operations. At December
31,
2005 and September 30, 2006, this liability was $1,381,000 and $719,000
(unaudited), respectively, and is classified as other long-term liabilities
in
the accompanying consolidated balance sheets. The fair value of AR-CombiMatrix
stock purchase warrants was determined using the Black-Scholes option-pricing
model, assuming weighted average risk free interest rates of approximately
4.4%
and 4.7% (unaudited) as of December 31, 2005 and September 30, 2006,
respectively, volatility of 84% as of December 31, 2005 and 82% (unaudited)
as
of September 30, 2006, respectively, and terms of 2 to 4 years
(unaudited).
During
2003 and 2004, proceeds of $450,000 and $2,093,000 were received from the
issuance of 761,205 and 163,637 shares, respectively, of AR-CombiMatrix stock
related to the exercise of certain warrants issued in connection with the May
2003 private equity financing described above. The proceeds from the warrants
exercised were attributed to us.
12.
STOCK
OPTIONS
Employees
of CombiMatrix Corporation participate in Acacia’s 2002 CombiMatrix Stock
Incentive Plan (the "AR-CombiMatrix Group Plan"), which was approved by the
stockholders of Acacia in December 2002. The AR-CombiMatrix Group Plan
authorizes grants of stock options, stock awards and performance shares with
respect to AR-CombiMatrix stock. The Acacia board of directors believes that
granting participants stock-based awards is in the best interest of Acacia,
the
Company and its stockholders.
As
a
result of the merger transaction with us and Acacia in December 2002 (see Note
1), each outstanding option to purchase shares of CombiMatrix Corporation common
stock under CombiMatrix Corporation’s existing stock award plans, whether or not
exercisable, was assumed by Acacia. Each assumed option continues to be governed
by the same terms and conditions that governed it under the applicable
CombiMatrix Corporation plan immediately before the Merger Date except that
the
option is exercisable for shares of AR-CombiMatrix stock rather than CombiMatrix
Corporation common stock. The number of shares of AR-CombiMatrix stock issuable
upon exercise of the assumed option, as well as the exercise price, was the
same
as the number of shares of CombiMatrix Corporation common stock issuable and
exercise price prior to the merger with Acacia.
Stock
Option Plans
Acacia’s
compensation committee administers the discretionary option grant and stock
issuance programs. This committee determines which eligible individuals are
to
receive option grants or stock issuances under those programs, the time or
times
when the grants or issuances are to be made, the number of shares subject to
each grant or issuance, the status of any granted option as either an incentive
stock option or a non-statutory stock option under the federal tax laws, the
vesting schedule to be in effect for the option grant or stock issuance and
the
maximum term for which any granted option is to remain
outstanding.
Each
of
the incentive plans has four separate programs: a discretionary option grant
program, a stock issuance program, an automatic option grant program and a
director fee option grant program. To date, the discretionary option grant
program has been the most widely used in awarding stock-based compensation
to
Company employees. Under the discretionary option grant program, Acacia’s
compensation committee may grant (1) non-statutory options to purchase shares
of
AR-CombiMatrix stock to eligible individuals in the employ of the Company
(including employees, non-employee board members and consultants) at an exercise
price not less than 85% of the fair market value of those shares on the grant
date, and (2) incentive stock options to purchase shares of AR-CombiMatrix
stock
to eligible employees at an exercise price not less than 100% of the fair market
value of those shares on the grant date.
The
AR-Acacia Technologies Group Plan and the AR-CombiMatrix Group Plan do not
segregate the number of securities remaining available for future issuance
among
stock options and other awards. The shares authorized for future issuance
represents the total number of shares available through any combination of
stock
options or other awards. Options are generally exercisable nine months to one
year after grant and expire five years after grant for directors or up to ten
years after grant for employees. The authorized number of shares of common
stock
subject to the AR-CombiMatrix Group Plan is 10,910,000 shares. At December
31,
2005 and September 30, 2006, shares available for grant were 2,071,000 and
1,038,872 (unaudited), respectively, under the AR-CombiMatrix Group
Plan.
The
following is a summary of AR-CombiMatrix stock option activities:
|
|
Shares
|
|
Weighted
Average
Price
|
|
Weighted
Contractual
Term
|
|
Aggregate
Intrinsic Value
|
|
Balance
at December 31, 2002
|
|
|
5,620,000
|
|
$
|
9.24
|
|
|
|
|
|
|
|
Granted
|
|
|
1,996,000
|
|
$
|
2.05
|
|
|
|
|
|
|
|
Exercised
|
|
|
(253,000
|
)
|
$
|
1.86
|
|
|
|
|
|
|
|
Cancelled
|
|
|
(746,000
|
)
|
$
|
9.89
|
|
|
|
|
|
|
|
Balance
at December 31, 2003
|
|
|
6,617,000
|
|
$
|
7.28
|
|
|
|
|
|
|
|
Granted
|
|
|
1,173,000
|
|
$
|
5.79
|
|
|
|
|
|
|
|
Exercised
|
|
|
(1,023,000
|
)
|
$
|
3.19
|
|
|
|
|
|
|
|
Cancelled
|
|
|
(535,000
|
)
|
$
|
9.89
|
|
|
|
|
|
|
|
Balance
at December 31, 2004
|
|
|
6,232,000
|
|
$
|
7.44
|
|
|
|
|
|
|
|
Granted
|
|
|
1,010,000
|
|
$
|
2.95
|
|
|
|
|
|
|
|
Exercised
|
|
|
(6,000
|
)
|
$
|
1.95
|
|
|
|
|
|
|
|
Cancelled
|
|
|
(311,000
|
)
|
$
|
6.87
|
|
|
|
|
|
|
|
Balance
at December 31, 2005
|
|
|
6,925,000
|
|
$
|
6.82
|
|
|
|
|
|
|
|
Granted
(unaudited)
|
|
|
1,834,000
|
|
$
|
1.41
|
|
|
|
|
|
|
|
Exercised
(unaudited)
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
Forfeited
(unaudited)
|
|
|
(95,000
|
)
|
$
|
3.11
|
|
|
|
|
|
|
|
Cancelled
(unaudited)
|
|
|
(106,000
|
)
|
$
|
6.72
|
|
|
|
|
|
|
|
Balance
at September 30, 2006 (unaudited)
|
|
|
8,558,000
|
|
$
|
5.70
|
|
|
6.5
years
|
|
$
|
--
|
|
Exercisable
at December 31, 2003
|
|
|
4,930,000
|
|
$
|
7.74
|
|
|
|
|
|
|
|
Exercisable
at December 31, 2004
|
|
|
4,843,000
|
|
$
|
8.07
|
|
|
|
|
|
|
|
Exercisable
at December 31, 2005
|
|
|
5,655,000
|
|
$
|
7.41
|
|
|
|
|
|
|
|
Exercisable
at September 30, 2006 (unaudited)
|
|
|
6,185,000
|
|
$
|
7.13
|
|
|
5.4
years
|
|
$
|
--
|
|
AR-CombiMatrix
stock options outstanding at December 31, 2005 are summarized as
follows:
Range
of
Exercise
Prices
|
|
Number
of
Outstanding
Options
|
|
Weighted
Average
Remaining
Contractual
Life
|
|
Outstanding
Weighted
Average
Exercise
Price
|
|
Number
Exercisable
|
|
Exercisable
Weighted
Average
Exercise
Price
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
1.43 - $ 2.77
|
|
|
1,315,000
|
|
|
7.13
|
|
$
|
1.97
|
|
|
1,156,000
|
|
$
|
1.95
|
|
$
2.78 - $ 5.53
|
|
|
2,540,000
|
|
|
6.63
|
|
$
|
3.68
|
|
|
1,759,000
|
|
$
|
3.92
|
|
$
5.54 - $ 8.30
|
|
|
694,000
|
|
|
8.00
|
|
$
|
6.79
|
|
|
422,000
|
|
$
|
6.79
|
|
$
8.31 - $11.07
|
|
|
661,000
|
|
|
4.70
|
|
$
|
9.06
|
|
|
661,000
|
|
$
|
9.06
|
|
$
11.08 - $13.83
|
|
|
1,033,000
|
|
|
5.52
|
|
$
|
12.02
|
|
|
980,000
|
|
$
|
12.02
|
|
$
13.84 - $16.60
|
|
|
320,000
|
|
|
4.86
|
|
$
|
15.10
|
|
|
315,000
|
|
$
|
15.10
|
|
$
16.61 - $19.37
|
|
|
195,000
|
|
|
4.47
|
|
$
|
17.32
|
|
|
195,000
|
|
$
|
17.32
|
|
$
22.14 - $24.00
|
|
|
167,000
|
|
|
4.88
|
|
$
|
23.67
|
|
|
167,000
|
|
$
|
23.67
|
|
|
|
|
6,925,000
|
|
|
6.33
|
|
$
|
6.82
|
|
|
5,655,000
|
|
$
|
7.41
|
|
Information
related to AR-CombiMatrix stock options granted for the periods presented is
as
follows:
|
|
|
|
|
|
|
|
For
the Nine Months
|
|
|
|
For
the years ended December 31,
|
|
Ended
September 30,
|
|
|
|
2003
|
|
2004
|
|
2005
|
|
2005
|
|
2006
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
average fair values of option granted
|
|
$
|
1.59
|
|
$
|
4.19
|
|
$
|
2.08
|
|
$
|
2.09
|
|
$
|
1.02
|
|
Fair
value of options vested
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options
granted with exercises prices:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Greater
than market price on the grant date
|
|
|
108,000
|
|
|
18,000
|
|
|
-
|
|
|
-
|
|
|
-
|
|
Less
than market price on the grant date
|
|
|
18,000
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
No
AR-CombiMatrix options were exercised during the nine months ended September
30,
2006. The total intrinsic value of options exercised during the nine months
ended September 30, 2005 was not material. The fair value of options vested
during the nine months ended September 30, 2005 and 2006 was $2,327,000 and
$2,138,000, respectively. As of September 30, 2006, the total unrecognized
compensation expense related to nonvested stock option awards was $2,932,000,
which is expected to be recognized over a weighted average term of approximately
one year.
CombiMatrix
Molecular Diagnostics 2005 Stock Award Plan
Our
wholly owned subsidiary, CMDX, executed the CombiMatrix Molecular Diagnostics
2005 Stock Award Plan (the "CMDX Plan") with plan provisions and terms similar
to that of the AR-CombiMatrix Group Plan, as described above. The authorized
number of shares of common stock subject to the CMDX Plan is 4,000,000 shares.
At December 31, 2005 and September 30, 2006, shares available for grant under
the CMDX Plan are 2,308,000 and 2,150,000 (unaudited),
respectively.
A
summary
of option activity under CMDX Plan since inception through the nine months
ended
September 30, 2006 (unaudited) is as follows:
|
|
Options
|
|
Weighted
Average
Exercise
Price
|
|
Weighted
Average Remaining Contractual Term
|
|
Aggregate
Intrinsic Value
|
|
Outstanding
at Inception (May 6, 2005)
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
Granted
|
|
|
1,692,000
|
|
$
|
0.10
|
|
|
|
|
|
|
|
Exercised
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
Forfeited
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
Outstanding
at December 31, 2005
|
|
|
1,692,000
|
|
$
|
0.10
|
|
|
|
|
|
|
|
Granted
(unaudited)
|
|
|
910,000
|
|
$
|
0.50
|
|
|
|
|
|
|
|
Exercised
(unaudited)
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
Forfeited
(unaudited)
|
|
|
(752,000
|
)
|
$
|
0.10
|
|
|
|
|
|
|
|
Outstanding
at September 30, 2006 (unaudited)
|
|
|
1,850,000
|
|
$
|
0.30
|
|
|
8.8
years
|
|
$
|
557,000
|
|
Vested
and Exercisable at September 30, 2006 (unaudited)
|
|
|
171,000
|
|
$
|
0.12
|
|
|
5.0
years
|
|
$
|
20,000
|
|
The
weighted average grant date fair value of stock options granted during the
nine
months ended September 30, 2005 and 2006 was $0.07 (unaudited) and $0.37
(unaudited), respectively. As of September 30, 2006, the total unrecognized
compensation expense related to nonvested stock option awards was $244,000
(unaudited), which is expected to be recognized over a weighted average term
of
approximately 2.7 years (unaudited). Total stock compensation expense recognized
and the fair value of options vested for the nine months ended September 30,
2006 were not material. During 2006 and 2005, Fair value of CMDX’s underlying
common stock was determined by an independent appraisal firm and by CMDX’s board
of directors, respectively.
Stock
Option Awards Granted to Non-Employees
Stock
option expense reflected in the consolidated statements of operations related
to
stock options issued to the our non-employee scientific advisory board members
is accounted for under the fair value method required by SFAS No. 123 and EITF
Issue No. 96-18, “Accounting for Equity Instruments That Are Issued To Other
Than Employees For Acquiring, Or In Conjunction With Selling, Goods And
Services,” and related interpretations. The fair value of options granted to
scientific advisory board members was determined using the Black-Scholes
option-pricing model with weighted average assumptions as disclosed in Note
2
under "Stock-based Compensation." The stock-based compensation expense
recognized from stock option awards granted to non-employees was not significant
for the periods presented.
13.
QUARTERLY
FINANCIAL DATA (unaudited)
The
following tables set forth unaudited summary consolidated statement of
operations data for the eight quarters in the periods ended December 31, 2004
and 2005. This information has been derived from our unaudited condensed
consolidated financial statements that have been prepared on the same basis
as
the audited consolidated financial statements and, in the opinion of management,
include all adjustments, consisting of normal recurring adjustments, necessary
for a fair statement of the information when read in conjunction with the
audited consolidated financial statements and related notes thereto. Our
quarterly results have been in the past and may in the future be subject to
significant fluctuations. As a result, we believe that results of operations
for
interim periods should not be relied upon as any indication of the results
to be
expected in any future periods.
2004
SUMMARY QUARTERLY FINANCIAL DATA (unaudited):
|
|
|
|
|
|
|
|
|
|
|
|
Quarter
Ended
|
|
|
|
Mar.
31,
|
|
Jun.
30,
|
|
Sep.
30,
|
|
Dec.
31,
|
|
|
|
2004
|
|
2004
|
|
2004
|
|
2004
|
|
|
|
(In
thousands)
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
Research
and development contract
|
|
$
|
17,302
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
Government
contract
|
|
|
217
|
|
|
701
|
|
|
685
|
|
|
390
|
|
Service
contracts
|
|
|
81
|
|
|
5
|
|
|
16
|
|
|
14
|
|
Products
|
|
|
16
|
|
|
44
|
|
|
52
|
|
|
118
|
|
Total
revenues
|
|
|
17,616
|
|
|
750
|
|
|
753
|
|
|
522
|
|
Operating
expenses
|
|
|
5,804
|
|
|
4,384
|
|
|
4,433
|
|
|
4,776
|
|
Operating
income (loss)
|
|
|
11,812
|
|
|
(3,634
|
)
|
|
(3,680
|
)
|
|
(4,254
|
)
|
Other
income (expenses)
|
|
|
46
|
|
|
84
|
|
|
98
|
|
|
102
|
|
Income
(loss) from continuing operations before
|
|
|
|
|
|
|
|
|
|
|
|
|
|
income
taxes and minority interests
|
|
|
11,858
|
|
|
(3,550
|
)
|
|
(3,582
|
)
|
|
(4,152
|
)
|
Benefit
for income taxes
|
|
|
34
|
|
|
34
|
|
|
34
|
|
|
34
|
|
Income
(loss) from continuing operations before
|
|
|
|
|
|
|
|
|
|
|
|
|
|
minority
interests
|
|
|
11,892
|
|
|
(3,516
|
)
|
|
(3,548
|
)
|
|
(4,118
|
)
|
Minority
interests
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
income (loss)
|
|
$
|
11,892
|
|
$
|
(3,516
|
)
|
$
|
(3,548
|
)
|
$
|
(4,118
|
)
|
2005
SUMMARY QUARTERLY FINANCIAL DATA (unaudited):
|
|
|
|
|
|
|
|
|
|
|
|
Quarter
Ended
|
|
|
|
Mar.
31,
|
|
Jun.
30,
|
|
Sep.
30,
|
|
Dec.
31,
|
|
|
|
2005
|
|
2005
|
|
2005
|
|
2005
|
|
|
|
(In
thousands)
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
Research
and development contract
|
|
$
|
-
|
|
$
|
-
|
|
$
|
-
|
|
$
|
2,266
|
|
Government
contract
|
|
|
731
|
|
|
1,281
|
|
|
973
|
|
|
864
|
|
Service
contracts
|
|
|
60
|
|
|
11
|
|
|
37
|
|
|
45
|
|
Products
|
|
|
278
|
|
|
565
|
|
|
453
|
|
|
469
|
|
Total
revenues
|
|
|
1,069
|
|
|
1,857
|
|
|
1,463
|
|
|
3,644
|
|
Operating
expenses
|
|
|
4,281
|
|
|
5,652
|
|
|
5,696
|
|
|
6,307
|
|
Operating
income (loss)
|
|
|
(3,212
|
)
|
|
(3,795
|
)
|
|
(4,233
|
)
|
|
(2,663
|
)
|
Other
income (expenses)
|
|
|
102
|
|
|
104
|
|
|
285
|
|
|
844
|
|
Income
(loss) from continuing operations before
|
|
|
|
|
|
|
|
|
|
|
|
|
|
income
taxes and minority interests
|
|
|
(3,110
|
)
|
|
(3,691
|
)
|
|
(3,948
|
)
|
|
(1,819
|
)
|
Benefit
for income taxes
|
|
|
34
|
|
|
34
|
|
|
65
|
|
|
34
|
|
Income
(loss) from continuing operations before
|
|
|
|
|
|
|
|
|
|
|
|
|
|
minority
interests
|
|
|
(3,076
|
)
|
|
(3,657
|
)
|
|
(3,883
|
)
|
|
(1,785
|
)
|
Minority
interests
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
income (loss)
|
|
$
|
(3,076
|
)
|
$
|
(3,657
|
)
|
$
|
(3,883
|
)
|
$
|
(1,785
|
)
|
14.
SUPPLEMENTAL
CASH FLOW INFORMATION
Refer
to
Note 6 for goodwill impairment charges recognized in 2005.
In
July
2003, Acacia purchased the outstanding minority interests of CombiMatrix K.K.
from Marubeni Corporation ("Marubeni") by issuing 200,000 shares of its
AR-CombiMatrix stock to Marubeni in exchange for Marubeni’s 10% minority
interests (120 shares) in CombiMatrix K.K. The fair value of the AR-CombiMatrix
stock issued was $450,000, based on the quoted market price of AR-CombiMatrix
stock on the exchange date. The amount attributable to goodwill was $393,000.
The related ownership interests and goodwill were allocated to us.
Also
in
July 2003, Acacia increased its consolidated ownership interest in AMS from
87%
to 99% by acquiring 1,774,750 shares of AMS common stock in exchange for 295,790
shares of AR-CombiMatrix stock. The fair value of the AR-CombiMatrix stock
issued was $769,000, based on the quoted market price of AR-CombiMatrix stock
on
the exchange date. The amount attributable to goodwill was $172,000. The related
ownership interests and goodwill were allocated to us.
15.
SUBSEQUENT
EVENTS (UNAUDITED)
On
June
14, 2006, Acacia entered into a standby equity distribution agreement (the
"SEDA") with Cornell Capital Partners, LP ("Cornell"). Under the terms of the
SEDA, Acacia could require Cornell to purchase up to the lower of $50.0 million
of AR-CombiMatrix common stock or up to 13,024,924 shares of AR-CombiMatrix
stock over a two-year period following the effective date of the SEDA. Such
shares were in the form of registered securities drawn from Acacia’s current
shelf registration statement. All proceeds from each advance, along with all
associated fees and expenses, were allocated to us. At the closing of each
advance, Acacia issued to Cornell the number of shares of AR-CombiMatrix common
stock equal to the amount of the advance divided by the lowest daily volume
weighted average price ("VWAP") of AR-CombiMatrix common stock during the five
trading days following the advance notice to Cornell, which purchased the shares
at 97.5% of the VWAP. Management could also specify a floor price whereby shares
that traded below the established floor price during the five-day trading period
were excluded from determining the VWAP. At each closing, Acacia paid to Cornell
an underwriting fee of 4% of the gross amount of each advance. Acacia was not
obligated to request any advances under the agreement and was not obligated
to
pay any additional fees to Cornell so long as no advances were requested. The
SEDA is also cancelable by Acacia at any time, without penalty. A total of
13,024,924 shares of AR-CombiMatrix common stock were authorized to be issued
under the SEDA.
Upon
closing of the SEDA, the CombiMatrix group paid Cornell a one-time commitment
fee of $550,000 and an additional $20,000 in due diligence and other
closing-related costs. The $550,000 fee was recorded as a long-term asset and
was being amortized against future advances as costs of equity issuances. On
June 23 2006, Cornell purchased 343,750 shares of AR-CombiMatrix common stock
at
$1.60 per share.
Since
executing the SEDA through September 30, 2006, Acacia has requested three
advances from Cornell to purchase a total of 2,019,646 shares of AR-CombiMatrix
stock at prices ranging from $1.16 to $1.13 per share, resulting in net proceeds
of $2,207,000 contributed to the Company. Subsequent to September 30, 2006
through November 1, 2006, an additional 1,191,699 shares of AR-CombiMatrix
stock
at prices ranging from $0.98 to $0.73 per share have been sold to Cornell,
generating net proceeds of $863,000 contributed to the Company. No advances
have
been requested since November 1, 2006 and on December 20, 2006, a notice to
cancel the SEDA was sent by Acacia to Cornell.
16.
SUBSEQUENT
EVENTS - FINANCING AND LIQUIDITY
On
December 13, 2006, Acacia completed a registered direct offering with
Oppenheimer & Co., Inc. (“Oppenheimer”) as the placement agent, raising
gross proceeds of $9,964,000 through the issuance of 9,768,313 units. Each
unit
consists of one share of AR-CombiMatrix common stock and 1.2 five-year common
stock warrants, for a total of 9,768,313 shares and warrants to purchase
11,721,975 shares of AR-CombiMatrix common stock, respectively, issued to
investors. Each warrant entitles the holder to purchase a share of
AR-CombiMatrix stock at a price of $0.87 per share. Acacia issued an additional
488,416 warrants of AR-CombiMatrix stock with an exercise price of $1.09 per
share to Oppenheimer. Net proceeds raised from the private equity financing
of
$9,266,000 were attributed to us. Also, the unamortized SEDA costs of $444,000
were charged against the net proceeds of the Oppenheimer financing, as canceling
the SEDA was a condition of closing the Oppenheimer financing.
Based
on
cash and cash equivalents held at September 30, 2006 and the Oppenheimer and
Cornell equity financings executed subsequent to September 30, 2006, management
anticipates that our cash and cash equivalent balances, anticipated cash flows
from operations and other sources of funding from the capital markets will
be
sufficient to meet our cash requirements through September 30, 2007. In order
for the Company to continue as a going concern beyond this point and ultimately
to achieve profitability, we will be required to obtain capital from external
sources, increase revenues and reduce operating costs. However, there can be
no
assurance that such capital will be available at times and at terms acceptable
to us, or that higher levels of product and service revenues will be achieved.
The issuance of additional equity securities will also cause dilution to our
shareholders. If external financing sources of financing are not available
or
are inadequate to fund our operations, we will be required to reduce operating
costs including research projects and personnel, which could jeopardize the
future strategic initiatives and business plans of the Company.
17.
PRO
FORMA INFORMATION (UNAUDITED)
The
September 30, 2006 pro forma balance sheet presentation represents the
reclassifications of Acacia’s historical net allocations to the Company as well
as our accumulated net losses into CombiMatrix Corporation common stock and
additional paid-in capital upon execution of the split-off of the Company from
Acacia. We will begin accumulating retained earnings (deficits) immediately
following the split-off from Acacia, which is anticipated to occur concurrent
with the Redemption Date. Also, the pro forma balance sheet presentation assumes
the reclassification of outstanding common stock warrants currently classified
as long-term liabilities to additional paid-in capital.
Unaudited
pro forma loss per share has been presented to reflect the capital structure
of
the Company subsequent to the Redemption Date. Pro forma basic and diluted
loss
per share has been computed by dividing the net loss by the estimated number
of
AR-CombiMatrix shares assumed to be outstanding and converted into common stock
of the Company as of the Redemption Date. The estimated number of AR-CombiMatrix
shares assumed to be outstanding includes the actual number issued and
outstanding as of September 30, 2006 of 41,405,798, plus 1,191,699 shares issued
subsequent to September 30, 2006 in connection with Acacia’s standby equity
distribution agreement with Cornell Capital Partners, LP (see Note 15) and
9,768,313 shares issued by Acacia on December 13, 2006 in connection with a
registered direct offering of AR-CombiMatrix common stock, placed by Oppenheimer
& Co., Inc. (see Note 16). Options and warrants to purchase AR-CombiMatrix
stock are assumed to be anti-dilutive as of the Redemption Date and therefore
were not included in the determination of the pro forma diluted loss per share
for the periods presented.
Upon
effectiveness of the split-off from Acacia, each of the outstanding warrants
will be exchanged for a new warrant to purchase CombiMatrix common stock, which
unlike AR-CombiMatrix stock is not redeemable. According to the terms of the
new
warrants and the classification of the related CombiMatrix common stock, the
new
warrants will be classified as permanent equity rather than as a long-term
liability. Therefore, the fair value of the outstanding warrants as of September
30, 2006 have been reflected as a component of additional paid-in capital on
the
accompanying unaudited September 30, 2006 pro forma balance sheet
presentation.
52,365,810
Shares
Common
Stock
______________
PROSPECTUS
______________
[date]
YOU
SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS
PROSPECTUS.
WE
HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT
FROM
THAT CONTAINED IN THIS PROSPECTUS.
THE
INFORMATION CONTAINED IN THIS PROSPECTUS IS ACCURATE ONLY AS OF THE
DATE
OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF DELIVERY OF THIS PROSPECTUS
OR OF ANY SALE OF OUR
COMMON
STOCK.
___________________
|
PART
II - INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM
13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The
following table sets forth the various costs and expenses payable by the
registrant in connection with the issuance of CombiMatrix common stock in the
redemption. Except for the SEC registration fee and Amex listing application
fee, all the amounts shown are estimates.
SEC
registration fee
|
|
$
|
5,603
|
|
Amex
listing application fee
|
|
|
70,000
|
|
Legal
fees and expenses
|
|
|
380,000
|
|
Accounting
fees and expenses
|
|
|
187,000
|
|
Printing
and related expenses
|
|
|
15,000
|
|
Transfer
Agent Fees
|
|
|
25,000
|
|
Miscellaneous
|
|
|
25,000
|
|
Total
|
|
$
|
707,603
|
|
ITEM
14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section
145 of the Delaware General Corporation Law provides that a corporation may
indemnify directors and officers as well as other employees and individuals
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation - a derivative action), if they acted
in
good faith and in a manner they reasonably believed to be in or not opposed
to
the best interests of the corporation and, with respect to any criminal action
or proceedings, had no reasonable cause to believe their conduct was
unlawful.
A
similar
standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys’ fees) actually
and reasonably incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation’s certificate of
incorporation, bylaws, disinterested director vote, stockholder vote, agreement
or otherwise.
Our
amended and restated certificate of incorporation permits us to, and our amended
and restated bylaws provide that we will, indemnify our officers and directors
to the fullest extent permitted by Delaware law. We have entered into separate
indemnification agreements with our directors and executive officers that could
require us, among other things, to indemnify them against liabilities that
may
arise by reason of their status or service as directors and to advance their
expenses incurred as a result of any proceeding against them as to which they
could be indemnified. We believe that the limitation of liability provision
in
our amended and restated bylaws and the indemnification agreements will
facilitate our ability to continue to attract and retain qualified individuals
to serve as directors and officers of our company.
Our
amended and restated certificate of incorporation provides that our directors
will not be liable to us or our stockholders for monetary damages for breach
of
fiduciary duty as directors except to the extent that an exemption or limitation
of liability is not permitted under Delaware Law, as in effect from time to
time. Delaware Law currently provides that directors of a company will not
be
personally liable for monetary damages for breach of their fiduciary duty as
directors, except for liability:
·
for
any
breach of their duty of loyalty to us or our stockholders;
·
for
acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law;
·
for
unlawful payment of dividend or unlawful stock repurchase or redemption, as
provided under Delaware Law; or
·
for
any
transaction from which the director derived an improper personal
benefit.
As
of the
date of this initial filing of this registration statement, certain executive
officers of CombiMatrix Corporation are covered under Acacia’s existing director
and officer insurance policy. It is our intent to obtain insurance on behalf
of
any person who is or was a director, officer, employee or agent of our company,
or is or was serving at the request of our company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or
other enterprise against any liability asserted against him and incurred by
him
in any such capacity, or arising out of his status as such, whether or not
our
company would have the power to indemnify him against such liability under
the
provisions of our company’s restated certificate of incorporation.
ITEM
15. RECENT SALES OF UNREGISTERED SECURITIES
We
have
not engaged in any unregistered offers or sales of our equity securities during
the past three years. During the past three years, Acacia Research Corporation
completed the following unregistered sales of AR-CombiMatrix stock or derivative
securities that may be converted or exchanged into AR-CombiMatrix
stock:
·
In
July 2003, Acacia issued
200,000 shares of AR-CombiMatrix stock, as reported in Acacia’s Form 10-Q for
the period ended September 30, 2003, Part II, Item 2 of which is hereby
incorporated by reference.
·
In
July
2003, Acacia issued 295,790 shares of AR-CombiMatrix stock, as reported in
Acacia’s Form 10-Q for the period ended September 30, 2003, Part II, Item 2 of
which is hereby incorporated by reference.
·
In
May
2003, Acacia completed the sale of 2,417,000 units, with each unit consisting
of
one share of AR-CombiMatrix stock and one half of a warrant to purchase a share
of AR-CombiMatrix common stock, as reported in Acacia’s Form 10-Q for the period
ended June 30, 2003, Part II, Item 2 of which is hereby incorporated by
reference.
ITEM
16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
3.1
|
Amended
and Restated Articles of Incorporation
|
3.2
|
Amended
and Restated Bylaws
|
5.1
|
Legal
Opinion of Greenberg Traurig, LLP
|
10.1
|
Tax
Allocation Agreement
|
10.2
|
Distribution
Agreement
|
10.3
|
CombiMatrix
Corporation 2006 Stock Incentive Plan
|
10.4
|
Form
of Stock Incentive Plan Agreement
|
10.5
|
Settlement
Agreement dated September 30, 2002, by and among Acacia Research
Corporation, CombiMatrix Corporation, Donald D. Montgomery, Ph.D.
and
Nanogen, Inc. (1)
|
10.6
|
Research
& Development Agreement dated September 25, 2002, between CombiMatrix
Corporation and Roche Diagnostics GmbH (1)
|
10.7
|
License
Agreement dated September 25, 2002 between CombiMatrix Corporation
and
Roche Diagnostics GmbH (1)
|
10.8
|
Form
of Indemnification Agreement
|
10.9
|
Series
A Preferred Stock Purchase Agreement dated October 1, 2004, by and
between
Leuchemix, Inc. and CombiMatrix Corporation (2)
|
10.10
|
Investor
Rights Agreement dated October 1, 2004, by and among Leuchemix, Inc.,
the
holders of Common Stock set forth on Exhibit A attached thereto,
and
CombiMatrix Corporation (2)
|
10.11
|
Voting
Agreement dated October 1, 2004, by and among Leuchemix, Inc., CombiMatrix
Corporation and the holders of the Common Stock set forth on Exhibit
A
attached thereto (2)
|
10.12
|
Right
of First Refusal and Co-Sale Agreement dated October 1, 2004, by
and among
Leuchemix, Inc., the holders of Common Stock set forth on Exhibit
A
attached thereto, and CombiMatrix Corporation (2)
|
10.13
|
Sublease
Guaranty, dated June 15, 2005 by CombiMatrix Corporation in favor of
Accupath Diagnostic Laboratories, Inc., dba U.S. Labs (3)
|
10.14
|
Research
and Development Agreement Second Amendment between Roche Diagnostics
GmbH
and CombiMatrix Corporation, dated March 25, 2003 (3)
|
10.15
|
First
Addendum to Roche/CBMX Research and Development Agreement, dated
March 25, 2003 (3)
|
10.16
|
Sublease,
dated June 15, 2005, by and between Accupath Diagnostics Labrotories,
Inc., dbs U.S. Labs, and CombiMatrix Molecular Diagnostics, Inc.
(3)
|
10.17
|
Manufacturing
and Supply Agreement with Furuno Electric Company, Ltd., effective
July 1,
2006(4)
|
10.18
|
Employee
Matters Agreement
|
21.1
|
Subsidiaries
of the Registrant
|
23.1
|
Consent
of Greenberg Traurig, LLP (included in Exhibit 5.1 hereto)
|
23.2
|
Consent
of Independent Registered Public Accounting Firm
|
24.1
|
Power
of Attorney (included on page II-5)
|
99.1
|
Notice
to Holders of Acacia Research-CombiMatrix Common Stock
|
99.2
|
Notice
to Holders of Acacia Research-CombiMatrix Options
|
99.3
|
Notice
to Holders of Acacia Research-CombiMatrix Convertible
Securities
|
___________________________
(1)
|
Incorporated
by reference to Acacia Research Corporation’s Registration Statement on
Form S-4 (SEC File No. 333-87654) which became effective on November
8,
2002.
|
(2)
|
Incorporated
by reference to Acacia Research Corporation’s Quarterly Report on Form
10-Q filed on November 5, 2004.
|
(3)
|
Incorporated
by reference to
Acacia
Research Corporation’s Annual Report on Form 10-K filed on March 16,
2006.
|
(4)
|
Incorporated
by reference to Acacia Research Corporation’s Quarterly Report on Form
10-Q filed on November 9, 2006.
|
ITEM
17. UNDERTAKING
S
The
undersigned registrant hereby undertakes:
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of our counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by us is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Mukilteo, State of
Washington, on, December 26, 2006
COMBIMATRIX
CORPORATION,
a
Delaware corporation
By:
/s/
Amit
Kumar
Amit
Kumar, President & CEO
POWER
OF ATTORNEY
KNOW
ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Amit Kumar or Scott Burell, or either of them, as
his
true and lawful attorney-in-fact and agent, with full power of substitution
and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and on
the
dates indicated.
Signature
|
Title
|
Date
|
/s/
Amit
Kumar
Amit
Kumar, Ph.D.
|
President,
Chief Executive Officer
(Principal
Executive Officer) and Director
|
|
/s/
Scott
Burell
Scott
Burell
|
Chief
Financial Officer (Principal Financial
and
Accounting Officer)
|
December
26, 2006
|
/s/
Brooke
Anderson
Brooke
Anderson, Ph.D.
|
Chief
Operating Officer and Director
|
December 26,
2006
|
/s/
Thomas
Akin
Thomas
Akin
|
Director
|
December
26, 2006
|
/s/
Rigdon
Currie
Rigdon
Currie
|
Director
|
December
26, 2006
|
/s/
John
Abeles
John
Abeles, M.D.
|
Director
|
December
26, 2006
|
EXHIBIT
INDEX
Pursuant
to Item 601(a)(2) of Regulation S-K, this exhibit index immediately precedes
the
exhibits.
3.1
|
Amended
and Restated Articles of Incorporation
|
3.2
|
Amended
and Restated Bylaws
|
5.1
|
Legal
Opinion of Greenberg Traurig, LLP
|
10.1
|
Tax
Allocation Agreement
|
10.2
|
Distribution
Agreement
|
10.3
|
CombiMatrix
Corporation 2006 Stock Incentive Plan
|
10.4
|
Form
of Stock Incentive Plan Agreement
|
10.5
|
Settlement
Agreement dated September 30, 2002, by and among Acacia Research
Corporation, CombiMatrix Corporation, Donald D. Montgomery, Ph.D.
and
Nanogen, Inc. (1)
|
10.6
|
Research
& Development Agreement dated September 25, 2002, between CombiMatrix
Corporation and Roche Diagnostics GmbH (1)
|
10.7
|
License
Agreement dated September 25, 2002 between CombiMatrix Corporation
and
Roche Diagnostics GmbH (1)
|
10.8
|
Form
of Indemnification Agreement
|
10.9
|
Series
A Preferred Stock Purchase Agreement dated October 1, 2004, by and
between
Leuchemix, Inc. and CombiMatrix Corporation (2)
|
10.10
|
Investor
Rights Agreement dated October 1, 2004, by and among Leuchemix, Inc.,
the
holders of Common Stock set forth on Exhibit A attached thereto,
and
CombiMatrix Corporation (2)
|
10.11
|
Voting
Agreement dated October 1, 2004, by and among Leuchemix, Inc., CombiMatrix
Corporation and the holders of the Common Stock set forth on Exhibit
A
attached thereto (2)
|
10.12
|
Right
of First Refusal and Co-Sale Agreement dated October 1, 2004, by
and among
Leuchemix, Inc., the holders of Common Stock set forth on Exhibit
A
attached thereto, and CombiMatrix Corporation (2)
|
10.13
|
Sublease
Guaranty, dated June 15, 2005 by CombiMatrix Corporation in favor of
Accupath Diagnostic Laboratories, Inc., dba U.S. Labs (3)
|
10.14
|
Research
and Development Agreement Second Amendment between Roche Diagnostics
GmbH
and CombiMatrix Corporation, dated March 25, 2003 (3)
|
10.15
|
First
Addendum to Roche/CBMX Research and Development Agreement, dated
March 25, 2003 (3)
|
10.16
|
Sublease,
dated June 15, 2005, by and between Accupath Diagnostics Labrotories,
Inc., dbs U.S. Labs, and CombiMatrix Molecular Diagnostics, Inc.
(3)
|
10.17
|
Manufacturing
and Supply Agreement with Furuno Electric Company, Ltd., effective
July 1,
2006(4)
|
10.18
|
Employee
Matters Agreement
|
21.1
|
Subsidiaries
of the Registrant
|
23.1
|
Consent
of Greenberg Traurig, LLP (included in Exhibit 5.1 hereto)
|
23.2
|
Consent
of Independent Registered Public Accounting Firm
|
24.1
|
Power
of Attorney (included on page II-5)
|
99.1
|
Notice
to Holders of Acacia Research-CombiMatrix Common Stock
|
99.2
|
Notice
to Holders of Acacia Research-CombiMatrix Options
|
99.3
|
Notice
to Holders of Acacia Research-CombiMatrix Convertible
Securities
|
___________________________
(1)
|
Incorporated
by reference to Acacia Research Corporation’s Registration Statement on
Form S-4 (SEC File No. 333-87654) which became effective on November
8,
2002.
|
(2)
|
Incorporated
by reference to Acacia Research Corporation’s Quarterly Report on Form
10-Q filed on November 5, 2004.
|
(3)
|
Incorporated
by reference to
Acacia
Research Corporation’s Annual Report on Form 10-K filed on March 16,
2006.
|
(4)
|
Incorporated
by reference to Acacia Research Corporation’s Quarterly Report on Form
10-Q filed on November 9, 2006.
|
II-7
EXHIBIT 3.1
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
COMBIMATRIX
CORPORATION
December
21, 2006
CombiMatrix
Corporation, a corporation organized and existing under the General Corporation
Law of the State of Delaware DOES HEREBY CERTIFY:
FIRST
:
The
original Certificate of Incorporation of CombiMatrix Corporation was filed
under
the name Combi Acquisition Corp. with the Secretary of State of the State of
Delaware on March 15, 2002.
SECOND
:
Combi
Acquisition Corp. merged with and into CombiMatrix Corporation and
simultaneously changed its name to CombiMatrix Corporation via the filing of
a
Certificate of Merger with the Secretary of State of the State of Delaware
on
December 13, 2002.
THIRD
:
The
Amended and Restated Certificate of Incorporation of CombiMatrix Corporation
in
the form attached hereto as
Exhibit
A
has been
duly adopted in accordance with the provisions of Sections 242 and 245 of the
General Corporation Law of the State of Delaware by the directors and sole
stockholder of CombiMatrix Corporation.
FOURTH
:
The
Amended and Restated Certificate of Incorporation so adopted reads in full
as
set forth in
Exhibit
A
attached
hereto and is hereby incorporated herein by this reference.
IN
WITNESS WHEREOF, CombiMatrix Corporation has caused this Certificate to be
signed by its Chief Financial Officer as of the date first written
above.
|
COMBIMATRIX
CORPORATION
|
|
By:
|
/s/
Scott Burell
|
|
Name:
Title:
|
Scott
Burell
Chief
Financial Officer
|
|
|
Exhibit
A
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION
OF
COMBIMATRIX
CORPORATION
ARTICLE
I
NAME
The
name
of the corporation is CombiMatrix Corporation (the "
Corporation
").
ARTICLE
II
ADDRESS
OF REGISTERED OFFICE;
NAME
OF
REGISTERED AGENT
The
address of the registered office of the Corporation in the State of Delaware
is
15 E. North Street, in the City of Dover, County of Kent, Delaware. The name
of
its registered agent at that address is Registered Agent Solutions,
Inc.
ARTICLE
III
PURPOSE
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation Law (the
"
DGCL
").
ARTICLE
IV
CAPITAL
STOCK
Section
1.
Authorization
.
The
total number of shares of all classes of stock that the Corporation is
authorized to issue is Two Hundred and Ten Million (210,000,000) shares,
consisting of One Hundred and Eighty Million (180,000,000) shares of Common
Stock with a par value of $.001 per share, and Thirty Million (30,000,000)
shares of Preferred Stock with a par value of $.001 per share. Upon the
effectiveness of this Amended and Restated Certificate of Incorporation, each
outstanding share of Common Stock of the Corporation shall be split and divided
into four (4) shares of Common Stock
.
No
fractional shares shall be recorded in the stock ledger of the Corporation
as a
result of the stock split provided for above. Any fractional share (a
“
Fractional
Interest
”)
that
would otherwise be issuable to a holder of Common Stock (a “
Fractional
Share Holder
”)
shall
be treated as described in the following sentence: The Fractional Interest
shall
be cancelled and the Fractional Share Holder shall be entitled to receive an
amount in cash equal to the product of the Fractional Interest to which such
Fractional Share Holder would otherwise have been entitled, multiplied by the
fair market value of one share of Common Stock immediately following the
effectiveness of the stock split provided for above, as determined by the Board
of Directors. Whether or not a Fractional Interest is to be recorded as a result
of the stock split provided for above shall be determined on the basis of the
total number of shares of Common Stock held by the record holder at the time
the
stock split occurs.
Section
2.
Preferred
Stock
.
The
Preferred Stock may be issued from time to time in one or more series, each
with
such distinctive designation as may be stated in the Certificate of
Incorporation or in any amendment hereto, or in a resolution or resolutions
providing for the issue of such stock from time to time adopted by the Board
of
Directors or a duly authorized committee thereof. The resolution or resolutions
providing for the issue of shares of a particular series shall fix, subject
to
applicable laws and the provisions of the Certificate of Incorporation, for
each
such series the number of shares constituting such series and the designation
and the voting powers, preferences and relative, participating, optional or
other special rights and the qualifications, limitations or restrictions
thereof, including, without limiting the generality of the foregoing, such
provisions as may be desired concerning voting, redemption, dividends,
dissolution or the distribution of assets, conversion or exchange, and such
other subjects or matters as may be fixed by the Board of Directors or a duly
authorized committee thereof under the DGCL. Except as otherwise required by
law, or as otherwise fixed by resolution or resolutions of the Board of
Directors with respect to one or more series of Preferred Stock, the entire
voting power and all voting rights shall be vested exclusively in the Common
Stock, and each stockholder of the Corporation who at the time possesses voting
power for any purpose shall be entitled to one vote for each share of such
stock
standing in his name on the books of the Corporation.
Section
3.
Common
Stock
.
(a)
Voting
Rights
.
Except
as may otherwise be provided in the certificate of incorporation of the
corporation (including any certificate filed with the Secretary of State of
the
State of Delaware establishing the terms of a series of Preferred Stock pursuant
to the provisions of
Article
IV
,
Section
2
hereof)
or by applicable law, each holder of Common Stock, as such, shall be entitled
to
one (1) vote for each share of Common Stock held of record by such holder on
all
matters on which stockholders generally are entitled to vote, and no holder
of
any series of Preferred Stock, as such, shall be entitled to any voting powers
in respect thereof.
(b)
Dividends
.
Subject
to applicable law and the rights, if any, of the holders of any outstanding
series of Preferred Stock provided for or fixed pursuant to the provisions
of
Article
IV
,
Section
2
hereof,
dividends may be declared and paid on the Common Stock at such times and in
such
amounts as the Board of Directors in its discretion shall determine.
(c)
Liquidation;
Dissolution
.
Upon
the dissolution, liquidation or winding-up of the corporation, subject to
applicable law and the rights, if any, of the holders of any outstanding series
of Preferred Stock provided for or fixed pursuant to the provisions of
Article
IV
,
Section
2
hereof,
the holders of the Common Stock shall be entitled to receive the assets of
the
corporation available for distribution to its stockholders ratably in proportion
to the number of shares of Common Stock held by them.
ARTICLE
V
BOARD
OF
DIRECTORS
Section
1.
Number
of Directors and Election
.
Subject
to any rights of holders of the Corporation’s preferred stock, the number of
directors will be fixed from time to time by action of not less than a majority
of the directors then in office, but in no event shall the number of directors
be less than five (5) nor more than nine (9).
Section
2.
Powers
of the Board of Directors
.
In
furtherance, and not in limitation, of the powers conferred by the laws of
the
State of Delaware, the Board of Directors is expressly authorized to adopt,
alter, amend and repeal the Bylaws of the Corporation.
Section
3.
Removal
.
Directors may be removed, with or without cause, only upon the affirmative
vote
of holders of at least two-thirds of the voting power of all then outstanding
shares of stock entitled to vote generally in the election of directors, voting
together as a single class, subject to any rights of holders of the
Corporation’s preferred stock; provided, however, that where such action is
approved by a majority of the directors the affirmative vote of only a majority
of the holders of all outstanding shares of the Corporation’s common stock will
be required for approval of such action.
ARTICLE
VI
STOCKHOLDER
ACTIONS
Section
1.
Meetings
and Records
.
Meetings of stockholders may be held within or without the State of Delaware,
as
the Bylaws of the Corporation may provide. The books of the Corporations may
be
kept (subject to the DGCL) outside of the State of Delaware at such place or
places as may be designated from time to time by the Board of Directors or
in
the Bylaws of the Corporation.
Section
2.
Special
Meetings
.
Special
meetings of stockholders may be called at any time by the Board of Directors
or
by the Chairman of the Board of Directors, or the President, and may not be
called by any other person or persons.
Section
3.
Written
Consents
.
No
action that is required or permitted to be taken by the stockholders of the
Corporation at any annual or special meeting of the stockholders may be effected
by written consent of the stockholders in lieu of a meeting of
stockholders.
Section
4.
Vacancies
.
Subject
to the rights, if any, of the holders of any outstanding series of Preferred
Stock
as
provided for or fixed pursuant to the provisions of
Article
IVSection 2
hereof,
newly
created directorships resulting from an increase in the authorized number of
directors or any vacancies on the Board of Directors resulting from death,
resignation, retirement, disqualification, removal or other cause shall be
filled solely and exclusively by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board
of Directors. Any director so chosen shall hold office until the next election
of the class for which such director shall have been chosen and until his or
her
successor shall be elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
ARTICLE
VII
LIMITATION
ON LIABILITY OF DIRECTORS
No
person
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, including without limitation
for serving on a committee of the Board of Directors, except to the extent
such
exemption from liability or limitation thereof is not permitted under the DGCL
as the same exists or hereafter may be amended. If the DGCL is amended after
the
date of the filing of this Certificate of Incorporation to authorize corporate
action further eliminating or limiting the personal liability of directors,
then
the liability of a director of the Corporation shall be eliminated or limited
to
the fullest extent permitted by the DGCL as so amended. Any amendment, repeal
or
modification of this
Article
VII
shall
not adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to such
amendment, repeal or modification.
ARTICLE
VIII
INDEMNIFICATION
The
Corporation may indemnify to the fullest extent permitted by law any person
made
or threatened to be made a party to an action or proceeding, whether criminal,
civil, administrative or investigative, by reason of the fact that such person,
his or her testator or intestate is or was a director, officer or employee
of
the Corporation or any predecessor of the Corporation or serves or served at
any
other enterprise as a director, officer or employee at the request of the
Corporation or any predecessor to the Corporation. No amendment, repeal or
modification of this
Article
VIII
by the
stockholders shall adversely affect any right or protection of a director of
the
Corporation existing by virtue of this
Article
VIII
at the
time of such amendment, repeal or modification.
ARTICLE
IX
AMENDMENT
OF CERTIFICATE OF INCORPORATION
The
Corporation hereby reserves the right from time to time to amend, alter, change
or repeal any provision contained in the Certificate of Incorporation, and
other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed by law,
and
all rights, preferences, and privileges of whatsoever nature conferred upon
the
stockholders, directors or any other persons whomsoever by or pursuant to this
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this
Article
IX
.
ARTICLE
X
CREDITORS
Whenever
a compromise or arrangement is proposed between this Corporation and its
creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof, or on the application
of
any receiver or receivers appointed for this Corporation under the provisions
of
Section 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or
of
the stockholders or class of stockholders of this Corporation, as the case
may
be, to be summoned in such manner as the said court directs. If a majority
in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and
to
any reorganization of this Corporation as a consequence of such compromise
or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may
be,
and also on this Corporation.
EXHIBIT
3.2
AMENDED
AND RESTATED BYLAWS
OF
COMBIMATRIX
CORPORATION
a
Delaware corporation
AMENDED
AND RESTATED BYLAWS
OF
COMBIMATRIX
CORPORATION
ARTICLE
1
OFFICES
Section
1.1
Registered
Office.
The
registered office of the corporation in the State of Delaware shall be in the
City of Wilmington, County of New Castle.
Section
1.2
Other
Offices.
The
corporation may also have and maintain an office or principal place of business,
or offices at such other places, both within and without the State of Delaware
as the Board of Directors may from time to time determine or the business of
the
corporation may require.
ARTICLE
2
STOCKHOLDERS’
MEETINGS
Section
2.1
Place
of Meetings.
(a)
Meetings
of stockholders may be held at such place, either within or without this State,
as may be designated by or in the manner provided in these bylaws or, if not
so
designated, as determined by the Board of Directors. The Board of Directors
may,
in its sole discretion, determine that the meeting shall not be held at any
place, but may instead be held solely by means of remote communication as
authorized by paragraph (b) of this
Section
2.1
.
(b)
If
authorized by the Board of Directors in its sole discretion, and subject to
such
guidelines and procedures as the Board of Directors may adopt, stockholders
and
proxyholders not physically present at a meeting of stockholders may, by means
of remote communication:
(1)
Participate
in a meeting of stockholders; and
(2)
Be
deemed
present in person and vote at a meeting of stockholders whether such meeting
is
to be held at a designated place or solely by means of remote communication,
provided that (A) the corporation shall implement reasonable measures to verify
that each person deemed present and permitted to vote at the meeting by means
of
remote communication is a stockholder or proxyholder, (B) the corporation shall
implement reasonable measures to provide such stockholders and proxyholders
a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings,
and
(C) if any stockholder or proxyholder votes or takes other action at the meeting
by means of remote communication, a record of such vote or other action shall
be
maintained by the corporation.
(c)
For
purposes of this
Section
2.1
,
“remote
communication” shall include (1) telephone or other voice communications
and (2) electronic mail or other form of written or visual electronic
communications, provided that the requirements of the Delaware General
Corporation Law are satisfied.
Section
2.2
Annual
Meetings.
The
annual meetings of the stockholders of the corporation, for the purpose of
election of directors and for such other business as may lawfully come before
it, shall be held on such date and at such time as may be designated from time
to time by the Board of Directors, or, if not so designated, then at 10:00
a. m.
on May 31 in each year if a business day and not a legal holiday, and, if a
legal holiday, at the same hour and place on the next succeeding business day
not a holiday.
Section
2.3
Special
Meetings.
Special
Meetings of the stockholders of the corporation may be called, for any purpose
or purposes, by the Chairman of the Board, the President or the Board of
Directors at any time.
Section
2.4
Notice
of Meetings.
(a)
Except
as
otherwise provided by law or the Certificate of Incorporation, written notice
of
each meeting of stockholders, specifying the place, if any, date and hour and
purpose or purposes of the meeting, and the means of remote communication,
if
any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such meeting, shall be given not less than 10 nor more than
60 days before the date of the meeting to each stockholder entitled to vote
thereat, directed to his address as it appears upon the books of the
corporation; except that where the matter to be acted on is a merger or
consolidation of the Corporation or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than 20
nor
more than 60 days prior to such meeting.
(b)
If
at any
meeting action is proposed to be taken which, if taken, would entitle
shareholders fulfilling the requirements of section 262(d) of the Delaware
General Corporation Law to an appraisal of the fair value of their shares,
the
notice of such meeting shall contain a statement of that purpose and to that
effect and shall be accompanied by a copy of that statutory
section.
(c)
When
a
meeting is adjourned to another time or place, notice need not be given of
the
adjourned meeting if the time, place, if any, thereof, and the means of remote
communication, if any, by which stockholders and proxyholders may be deemed
to
be present in person and vote at such adjourned meeting, are announced at the
meeting at which the adjournment is taken unless the adjournment is for more
than thirty days, or unless after the adjournment a new record date is fixed
for
the adjourned meeting, in which event a notice of the adjourned meeting shall
be
given to each stockholder of record entitled to vote at the
meeting.
(d)
Notice
of
the time, place and purpose of any meeting of stockholders may be waived in
writing, either before or after such meeting, and, to the extent permitted
by
law, will be waived by any stockholder by his attendance thereat, in person
or
by proxy. Any stockholder so waiving notice of such meeting shall be bound
by
the proceedings of any such meeting in all respects as if due notice thereof
had
been given.
(e)
Without
limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the corporation under any
provision of Delaware General Corporation Law, the certificate of incorporation,
or these bylaws shall be effective if given by a form of electronic
transmission. Notice given pursuant to this subparagraph (e) shall be deemed
given: (1) if by facsimile telecommunication, when directed to a number at
which
the stockholder has consented to receive notice; (2) if by electronic mail,
when
directed to an electronic mail address at which the stockholder has consented
to
receive notice; (3) if by a posting on an electronic network together with
separate notice to the stockholder of such specific posting, upon the later
of
(A) such posting and (B) the giving of such separate notice; and (4) if by
any
other form of electronic transmission, when directed to the stockholder. An
affidavit of the secretary or an assistant secretary or of the transfer agent
or
other agent of the corporation that the notice has been given by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein. For purposes of these bylaws, “electronic
transmission” means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be retained,
retrieved and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated
process.
Section
2.5
Quorum
and Voting.
(a)
At
all
meetings of stockholders except where otherwise provided by law, the Certificate
of Incorporation or these Bylaws, the presence, in person or by proxy duly
authorized, of the holders of a majority of the outstanding shares of stock
entitled to vote shall constitute a quorum for the transaction of business.
Shares, the voting of which at said meeting have been enjoined, or which for
any
reason cannot be lawfully voted at such meeting, shall not be counted to
determine a quorum at said meeting. In the absence of a quorum, any meeting
of
stockholders may be adjourned, from time to time, by vote of the holders of
a
majority of the shares represented thereat, but no other business shall be
transacted at such meeting. At such adjourned meeting at which a quorum is
present or represented, any business may be transacted which might have been
transacted at the original meeting. The stockholders present at a duly called
or
convened meeting at which a quorum is present may continue to transact business
until adjournment, notwithstanding the withdrawal of enough stockholders to
leave less than a quorum.
(b)
Except
as
otherwise provided by law, the Certificate of Incorporation or these Bylaws,
all
action taken by the holders of a majority of the voting power represented at
any
meeting at which a quorum is present shall be valid and binding upon the
corporation.
Section
2.6
Voting
Rights.
(a)
Except
as
otherwise provided by law, only persons in whose names shares entitled to vote
stand on the stock records of the corporation on the record date for determining
the stockholders entitled to vote at said meeting shall be entitled to vote
at
such meeting. Shares standing in the names of two or more persons shall be
voted
or represented in accordance with the determination of the majority of such
persons, or, if only one of such persons is present in person or represented
by
proxy, such person shall have the right to vote such shares and such shares
shall be deemed to be represented for the purpose of determining a
quorum.
(b)
Every
person entitled to vote or to execute consents shall have the right to do so
either in person or by an agent or agents authorized by a written proxy executed
by such person or his duly authorized agent, which proxy shall be filed with
the
Secretary of the corporation at or before the meeting at which it is to be
used.
Said proxy so appointed need not be a stockholder. No proxy shall be voted
on
after three (3) years from its date unless the proxy provides for a longer
period. Unless and until voted, every proxy shall be revocable at the pleasure
of the person who executed it or of his legal representatives or assigns, except
in those cases where an irrevocable proxy permitted by statute has been
given.
(c)
Without
limiting the manner in which a stockholder may authorize another person or
persons to act for him as proxy pursuant to subsection
(b)
of this
section, the following shall constitute a valid means by which a stockholder
may
grant such authority:
(1)
A
stockholder may execute a writing authorizing another person or persons to
act
for him as proxy. Execution may be accomplished by the stockholder or his
authorized officer, director, employee or agent signing such writing or causing
his or her signature to be affixed to such writing by any reasonable means
including, but not limited to, by facsimile signature.
(2)
A
stockholder may authorize another person or persons to act for him as proxy
by
transmitting or authorizing the transmission of a telephone, telegram,
cablegram, email or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be
the
holder of the proxy to receive such transmission, provided that any such
telephone, telegram, cablegram, email or other means of electronic transmission
must either set forth or be submitted with information from which it can be
determined that the telephone, telegram, cablegram or other electronic
transmission was authorized by the stockholder. Such authorization can be
established by the signature of the stockholder on the proxy, either in writing
or by a signature stamp or facsimile signature, or by a number or symbol from
which the identity of the stockholder can be determined, or by any other
procedure deemed appropriate by the inspectors or other persons making the
determination as to due authorization.
(3)
If
it is
determined that such telegrams, cablegrams, emails or other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such
other persons making that determination shall specify the information upon
which
they relied.
(d)
Any
copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to subsection
(c)
of this
section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
Section
2.7
Voting
Procedures and Inspectors of Elections.
(a)
The
corporation shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report thereof. The
corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act
at a
meeting of stockholders, the person presiding at the meeting shall appoint
one
or more inspectors to act at the meeting. Each inspector, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector with strict impartiality and according to the best
of
his ability.
(b)
The
inspectors shall (i) ascertain the number of shares outstanding and the voting
power of each, (ii) determine the shares represented at a meeting and the
validity of proxies and ballots, (iii) count all votes and ballots,
(iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors,
and
(v) certify their determination of the number of shares represented at the
meeting and their count of all votes and ballots. The inspectors may appoint
or
retain other persons or entities to assist the inspectors in the performance
of
the duties of the inspectors.
(c)
The
date
and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting shall be announced at the meeting by
the
person presiding over the meeting. The board of directors may adopt by
resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the board of directors, the person
presiding over any meeting of stockholders shall have the right and authority
to
convene and to adjourn the meeting, to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such presiding person,
are appropriate for the proper conduct of the meeting. Such rules, regulations
or procedures, whether adopted by the board of directors or prescribed by the
presiding person of the meeting, may include, without limitation, the following:
(i) the establishment of an agenda or order of business for the meeting; (ii)
rules and procedures for maintaining order at the meeting and the safety of
those present; (iii) limitations on attendance at or participation in the
meeting to stockholders of record of the corporation, their duly authorized
and
constituted proxies or such other persons as the presiding person of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. The presiding person at any meeting
of
stockholders, in addition to making any other determinations that may be
appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding person should so determine,
such presiding person shall so declare to the meeting and any such matter or
business not properly brought before the meeting shall not be transacted or
considered. Unless and to the extent determined by the board of directors or
the
person presiding over the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary
procedure.
(d)
In
determining the validity and counting of proxies and ballots, the inspectors
shall be limited to an examination of the proxies, any envelopes submitted
with
those proxies, any information provided in accordance with Sections 211(e)
or
212(c)(2) of the Delaware General Corporation Law, or any information provided
pursuant to Section 211(a)(2)(B)(i) or (iii) thereof, ballots and the regular
books and records of the corporation, except that the inspectors may consider
other reliable information for the limited purpose of reconciling proxies and
ballots submitted by or on behalf of banks, brokers, their nominees or similar
persons which represent more votes than the holder of a proxy is authorized
by
the record owner to cast or more votes than the stockholder holds of record.
If
the inspectors consider other reliable information for the limited purpose
permitted herein, the inspectors at the time they make their certification
pursuant to subsection
(b)
(v)
of
this section shall specify the precise information considered by them including
the person or persons from whom they obtained the information, when the
information was obtained, the means by which the information was obtained and
the basis for the inspectors’ belief that such information is accurate and
reliable.
Section
2.8
List
of Stockholders.
The
officer who has charge of the stock ledger of the corporation shall prepare
and
make, at least ten days before every meeting of stockholders, a complete list
of
the stockholders entitled to vote at said meeting, arranged in alphabetical
order, showing the address of and the number of shares registered in the name
of
each stockholder. The corporation need not include electronic mail addresses
or
other electronic contact information on such list. Such list shall be open
to
the examination of any stockholder for any purpose germane to the meeting for
a
period of at least 10 days prior to the meeting: (i) on a reasonably
accessible electronic network, provided that the information required to gain
access to such list is provided with the notice of the meeting, or
(ii) during ordinary business hours at the principal place of business of
the corporation. In the event that the corporation determines to make the list
available on an electronic network, the corporation may take reasonable steps
to
ensure that such information is available only to stockholders of the
corporation. If the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If the meeting
is to be held solely by means of remote communication, then the list shall
also
be open to the examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of the
meeting.
Section
2.9
Stockholder
Proposals at Annual Meetings.
At
an
annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors, otherwise properly brought before the meeting by or at the direction
of the Board of Directors, or otherwise properly brought before the meeting
by a
stockholder. In addition to any other applicable requirements for business
to be
properly brought before an annual meeting by a stockholder, the stockholder
must
have given timely notice thereof in writing to the Secretary of the corporation.
To be timely a stockholder’s notice must be delivered to or mailed and received
at the principal executive offices of the corporation not less than 120 days
nor
more than 180 days prior to the date on which the corporation first mailed
its
proxy materials for the previous year’s annual meeting of stockholders (or the
date on which the corporation mails its proxy materials for the current year
if
during the prior year the corporation did not hold an annual meeting or if
the
date of the annual meeting was changed more than 30 days from the prior year).
A
stockholder’s notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting
and
the reasons for conducting such business at the annual meeting, (ii) the
name and record address of the stockholder proposing such business,
(iii) the class and number of shares of the corporation which are
beneficially owned by the stockholder, and (iv) any material interest of
the stockholder in such business.
Notwithstanding
anything in the Bylaws to the contrary, no business shall be conducted at the
annual meeting except in accordance with the procedures set forth in
Section
2.1
and this
Section
2.9
,
provided, however, that nothing in this
Section
2.9
shall be
deemed to preclude discussion by any stockholder of any business properly
brought before the annual meeting in accordance with said
procedure.
The
Chairman of an annual meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the meeting in
accordance with the provisions of
Section
2.1
and this
Section
2.9
,
and if
he should so determine he shall so declare to the meeting, and any such business
not properly brought before the meeting shall not be transacted.
Nothing
in this
Section
2.9
shall
affect the right of a stockholder to request inclusion of a proposal in the
corporation’s proxy statement to the extent that such right is provided by an
applicable rule of the Securities and Exchange Commission.
Section
2.10
Nominations
of Persons for Election to the Board of Directors.
In
addition to any other applicable requirements, only persons who are nominated
in
accordance with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of
the
corporation may be made at a meeting of stockholders by or at the direction
of
the Board of Directors, by any nominating committee or person appointed by
the
Board of Directors or by any stockholder of the corporation entitled to vote
for
the election of directors at the meeting who complies with the notice procedures
set forth in this
Section
2.10
.
Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the corporation. To be timely, a stockholder’s notice must be delivered to or
mailed and received at the principal executive offices of the corporation,
not
less than 80 days nor more than 120 days prior to the date on which the
corporation first mailed its proxy materials for the previous year’s annual
meeting of shareholders (or the date on which the corporation mails its proxy
materials for the current year if during the prior year the corporation did
not
hold an annual meeting or if the date of the annual meeting was changed more
than 30 days from the prior year). Such stockholder’s notice shall set forth
(a) as to each person whom the stockholder proposes to nominate for
election or re-election as a director, (i) the name, age, business address
and residence address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of shares of the
corporation which are beneficially owned by the person, and (iv) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Rule 14a
under the Securities Exchange Act of 1934; and (b) as to the stockholder
giving the notice, (i) the name and record address of the stockholder, and
(ii) the class and number of shares of the corporation which are
beneficially owned by the stockholder. The corporation may require any proposed
nominee to furnish such other information as may reasonably be required by
the
corporation to determine the eligibility of such proposed nominee to serve
as a
director of the corporation. No person shall be eligible for election as a
director of the corporation unless nominated in accordance with the procedures
set forth herein. These provisions shall not apply to nomination of any persons
entitled to be separately elected by holders of preferred stock.
The
Chairman of the meeting shall, if the facts warrant, determine and declare
to
the meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the meeting
and
the defective nomination shall be disregarded.
Section
2.11
Action
Without Meeting.
Any
action that is required or permitted to be taken by the stockholders of the
Corporation at any annual or special meeting of the stockholders may be effected
by written consent of the stockholders in lieu of a meeting of
stockholders.
ARTICLE
3
DIRECTORS
Section
3.1
Number
and Term of Office.
The
number of directors of the corporation shall not be less than five (5) nor
more
than nine (9) until changed by amendment of the Certificate of Incorporation
or
by a Bylaw amending this
Section
3.1
duly
adopted in accordance with
ARTICLE
11
hereof.
The exact number of directors shall be fixed from time to time, within the
limits specified in the Certificate of Incorporation or in this
Section
3.1
,
by the
Board of Directors or by a bylaw or amendment thereof duly adopted in accordance
with
ARTICLE
11
hereof.
Subject to the foregoing provisions for changing the number of directors, the
number of directors of the corporation has been fixed at five (5).
Section
3.2
Powers.
The
powers of the corporation shall be exercised, its business conducted and its
property controlled by or under the direction of the Board of
Directors.
Section
3.3
Vacancies.
Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, and each director
so elected shall hold office for the unexpired portion of the term of the
director whose place shall be vacant and until his successor shall have been
duly elected and qualified. A vacancy in the Board of Directors shall be deemed
to exist under this section in the case of the death, removal or resignation
of
any director, or if the stockholders fail at any meeting of stockholders at
which directors are to be elected (including any meeting referred to in
Section
3.4
below)
to elect the number of directors then constituting the whole Board.
Section
3.4
Resignations
and Removals.
(a)
Any
director may resign at any time by delivering his resignation to the Secretary
in writing or by electronic transmission, such resignation to specify whether
it
will be effective at a particular time, upon receipt by the Secretary or at
the
pleasure of the Board of Directors. If no such specification is made it shall
be
deemed effective at the pleasure of the Board of Directors. When one or more
directors shall resign from the Board effective at a future date, a majority
of
the directors then in office, including those who have so resigned, shall have
power to fill such vacancy or vacancies, the vote thereon to take effect when
such resignation or resignations shall become effective, and each director
so
chosen shall hold office for the unexpired portion of the term of the director
whose place shall be vacated and until his successor shall have been duly
elected and qualified.
(b)
At
a
special meeting of stockholders called for the purpose in the manner hereinabove
provided, the Board of Directors or any individual director may be removed
from
office, with or without cause, and a new director or directors elected by a
vote
of stockholders holding a majority of the outstanding shares entitled to vote
at
an election of directors.
Section
3.5
Meetings.
(a)
The
annual meeting of the Board of Directors shall be held immediately after the
annual stockholders’ meeting and at the place where such meeting is held or at
the place announced by the Chairman at such meeting. No notice of an annual
meeting of the Board of Directors shall be necessary, and such meeting shall
be
held for the purpose of electing officers and transacting such other business
as
may lawfully come before it.
(b)
Except
as
hereinafter otherwise provided, regular meetings of the Board of Directors
shall
be held in the office of the corporation required to be maintained pursuant
to
Section
1.2
of
ARTICLE
1
hereof.
Regular meetings of the Board of Directors may also be held at any place, within
or without the State of Delaware, which has been designated by resolutions
of
the Board of Directors or the written consent of all directors.
(c)
Special
meetings of the Board of Directors may be held at any time and place within
or
without the State of Delaware whenever called by the Chairman of the Board
or,
if there is no Chairman of the Board, by the President, or by any of the
directors.
(d)
Written
notice of the time and place of all regular and special meetings of the Board
of
Directors shall be delivered personally to each director or sent by telegram
or
facsimile transmission or other form of electronic transmission at least
24 hours before the start of the meeting, or sent by first class mail at
least 120 hours before the start of the meeting. Notice of any meeting may
be waived in writing at any time before or after the meeting and will be waived
by any director by attendance thereat.
Section
3.6
Quorum
and Voting.
(a)
A
quorum
of the Board of Directors shall consist of a majority of the exact number of
directors fixed from time to time in accordance with
Section
3.1
of
ARTICLE
3
of these
Bylaws, but not less than one; provided, however, at any meeting whether a
quorum be present or otherwise, a majority of the directors present may adjourn
from time to time until the time fixed for the next regular meeting of the
Board
of Directors, without notice other than by announcement at the
meeting.
(b)
At
each
meeting of the Board at which a quorum is present, all questions and business
shall be determined by a vote of a majority of the directors present, unless
a
different vote be required by law, the Certificate of Incorporation, or these
Bylaws.
(c)
Any
member of the Board of Directors, or of any committee thereof, may participate
in a meeting by means of conference telephone or other communication equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting by such means shall constitute presence in person
at such meeting.
(d)
The
transactions of any meeting of the Board of Directors, or any committee thereof,
however called or noticed, or wherever held, shall be as valid as though had
at
a meeting duly held after regular call and notice if a quorum be present and
if,
either before or after the meeting, each of the directors not present shall
sign
a written waiver of notice, or a consent to holding such meeting, or an approval
of the minutes thereof. All such waivers, consents or approvals shall be filed
with the corporate records or made a part of the minutes of the
meeting.
Section
3.7
Action
Without Meeting.
Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if all
members of the Board or of such committee, as the case may be, consent thereto
in writing or by electronic transmission, and such writing or writings or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board or committee. Such filing shall be in paper form if
the
minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
Section
3.8
Fees
and Compensation.
Directors
and members of committees may receive such compensation, if any, for their
services, and such reimbursement for expenses, as may be fixed or determined
by
resolution of the Board of Directors.
Section
3.9
Committees.
(a)
Executive
Committee:
The
Board of Directors may appoint an Executive Committee of not less than one
member, each of whom shall be a director. The Executive Committee, to the extent
permitted by law, shall have and may exercise when the Board of Directors is
not
in session all powers of the Board in the management of the business and affairs
of the corporation, except such committee shall not have the power or authority
to amend these Bylaws or to approve or recommend to the stockholders any action
which must be submitted to stockholders for approval under the General
Corporation Law.
(b)
Other
Committees:
The
Board
of Directors may, from time to time appoint such other committees as may be
permitted by law. Such other committees appointed by the Board of Directors
shall have such powers and perform such duties as may be prescribed by the
resolution or resolutions creating such committee, but in no event shall any
such committee have the powers denied to the Executive Committee in these
Bylaws.
(c)
Term:
The
members of all committees of the Board of Directors shall serve a term
coexistent with that of the Board of Directors which shall have appointed such
committee. The Board, subject to the provisions of subsections (a)
or (b) of this
Section
3.8
,
may at
any time increase or decrease the number of members of a committee or terminate
the existence of a committee; provided that no committee shall consist of less
than one member. The membership of a committee member shall terminate on the
date of his death or voluntary resignation, but the Board may at any time for
any reason remove any individual committee member and the Board may fill any
committee vacancy created by death, resignation, removal or increase in the
number of members of the committee. The Board of Directors may designate one
or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee, and, in addition, in
the
absence or disqualification of any member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or
not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
(d)
Meetings:
Unless
the Board of Directors shall otherwise provide, regular meetings of the
Executive Committee or any other committee appointed pursuant to this
Section
3.8
shall be
held at such times and places as are determined by the Board of Directors,
or by
any such committee, and when notice thereof has been given to each member of
such committee, no further notice of such regular meetings need be given
thereafter; special meetings of any such committee may be held at the principal
office of the corporation required to be maintained pursuant to
Section
1.2
of
ARTICLE
1
hereof;
or at any place which has been designated from time to time by resolution of
such committee or by written consent of all members thereof, and may be called
by any director who is a member of such committee upon written notice to the
members of such committee of the time and place of such special meeting given
in
the manner provided for the giving of written notice to members of the Board
of
Directors of the time and place of special meetings of the Board of Directors.
Notice of any special meeting of any committee may be waived in writing at
any
time after the meeting and will be waived by any director by attendance thereat.
A majority of the authorized number of members of any such committee shall
constitute a quorum for the transaction of business, and the act of a majority
of those present at any meeting at which a quorum is present shall be the act
of
such committee.
ARTICLE
4
OFFICERS
Section
4.1
Officers
Designated.
The
officers of the corporation shall be a Chief Executive Officer, who shall be
the
President of the corporation, a Chief Financial Officer, who shall be the
Treasurer of the corporation, a Secretary and a Chief Operating Officer. The
Board of Directors or the Chief Executive Officer may also appoint a Chairman
of
the Board, one or more Vice-Presidents, assistant secretaries, assistant
treasurers, and such other officers and agents with such powers and duties
as it
or he shall deem necessary. The order of the seniority of the Vice- Presidents
shall be in the order of their nomination unless otherwise determined by the
Board of Directors. The Board of Directors may assign such additional titles
to
one or more of the officers as they shall deem appropriate. Any one person
may
hold any number of offices of the corporation at any one time unless
specifically prohibited therefrom by law. The salaries and other compensation
of
the officers of the corporation shall be fixed by or in the manner designated
by
the Board of Directors.
Section
4.2
Tenure
and Duties of Officers.
(a)
General:
All
officers shall hold office at the pleasure of the Board of Directors and until
their successors shall have been duly elected and qualified, unless sooner
removed. Any officer elected or appointed by the Board of Directors may be
removed at any time by the Board of Directors. If the office of any officer
becomes vacant for any reason, the vacancy may be filled by the Board of
Directors. Nothing in these Bylaws shall be construed as creating any kind
of
contractual right to employment with the corporation.
(b)
Duties
of the Chairman of the Board of Directors:
The
Chairman of the Board of Directors (if there be such an officer appointed)
when
present shall preside at all meetings of the stockholders and the Board of
Directors. The Chairman of the Board of Directors shall perform such other
duties and have such other powers as the Board of Directors shall designate
from
time to time.
(c)
Duties
of Chief Executive Officer (President):
The
Chief Executive Officer shall be the President of the corporation and shall
preside at all meetings of the stockholders and at all meetings of the Board
of
Directors, unless the Chairman of the Board of Directors has been appointed
and
is present. The Chief Executive Officer shall perform such other duties and
have
such other powers as the Board of Directors shall designate from time to
time.
(d)
Duties
of Chief Financial Officer (Treasurer):
The
Chief Financial Officer shall be the Treasurer of the corporation. The Chief
Financial Officer shall keep or cause to be kept the books of account of the
corporation in a thorough and proper manner, and shall render statements of
the
financial affairs of the corporation in such form and as often as required
by
the Board of Directors or the Chief Executive Officer. The Chief Financial
Officer, subject to the order of the Board of Directors, shall have the custody
of all funds and securities of the corporation. The Chief Financial Officer
shall perform all other duties commonly incident to his office and shall perform
such other duties and have such other powers as the Board of Directors or the
Chief Executive Officer shall designate from time to time. The Chief Executive
Officer may direct any assistant treasurer to assume and perform such duties
in
the absence or disability of the Chief Financial Officer, and each assistant
treasurer shall perform such other duties and have such other powers as the
Board of Directors or the Chief Executive Officer shall designate from time
to
time.
(e)
Duties
of Secretary:
The
Secretary shall attend all meetings of the stockholders and of the Board of
Directors and any committee thereof, and shall record all acts and proceedings
thereof in the minute book of the corporation, which may be maintained in either
paper or electronic form. The Secretary shall give notice, in conformity with
these Bylaws, of all meetings of the stockholders and of all meetings of the
Board of Directors and any Committee thereof requiring notice. The Secretary
shall perform such other duties and have such other powers as the Board of
Directors shall designate from time to time. The Chief Executive Officer may
direct any assistant secretary to assume and perform the duties of the Secretary
in the absence or disability of the Secretary, and each assistant secretary
shall perform such other duties and have such other powers as the Board of
Directors or the Chief Executive Officer shall designate from time to
time.
(f)
Duties
of Chief Operating Officer
.
The
Chief Operating Officer shall perform all duties commonly incident to his office
and shall perform such other duties and have such other powers as the Board
of
Directors or the Chief Executive Officer shall designate from time to
time.
ARTICLE
5
EXECUTION
OF CORPORATE INSTRUMENTS, AND
VOTING
OF SECURITIES OWNED BY THE CORPORATION
Section
5.1
Execution
of Corporate Instruments.
(a)
The
Board
of Directors may in its discretion determine the method and designate the
signatory officer or officers, or other person or persons, to execute any
corporate instrument or document, or to sign the corporate name without
limitation, except where otherwise provided by law, and such execution or
signature shall be binding upon the corporation.
(b)
Unless
otherwise specifically determined by the Board of Directors or otherwise
required by law, formal contracts of the corporation, promissory notes, deeds
of
trust, mortgages and other evidences of indebtedness of the corporation, and
other corporate instruments or documents requiring the corporate seal, and
certificates of shares of stock owned by the corporation, shall be executed,
signed or endorsed by the Chairman of the Board (if there be such an officer
appointed) or by the President; such documents may also be executed by any
Vice-President and by the Secretary or Treasurer or any assistant secretary
or
assistant treasurer. All other instruments and documents requiring the corporate
signature but not requiring the corporate seal may be executed as aforesaid
or
in such other manner as may be directed by the Board of Directors.
(c)
All
checks and drafts drawn on banks or other depositaries on funds to the credit
of
the corporation or in special accounts of the corporation shall be signed by
such person or persons as the Board of Directors shall authorize so to
do.
(d)
Execution
of any corporate instrument may be effected in such form, either manual,
facsimile or electronic signature, as may be authorized by the Board of
Directors.
Section
5.2
Voting
of Securities Owned by Corporation.
All
stock
and other securities of other corporations owned or held by the corporation
for
itself or for other parties in any capacity shall be voted, and all proxies
with
respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors or, in the absence of such authorization,
by the Chairman of the Board (if there be such an officer appointed), or by
the
President, or by any Vice-President.
ARTICLE
6
SHARES
OF STOCK
Section
6.1
Form
and Execution of Certificates.
The
shares of the corporation shall be represented by certificates, provided that
the Board of Directors may provide by resolution or resolutions that some or
all
of any or all classes or series of its stock shall be uncertificated shares.
Any
such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered to the corporation. Certificates for the shares
of stock of the corporation shall be in such form as is consistent with the
Certificate of Incorporation and applicable law. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the name
of
the corporation by, the Chairman of the Board (if there be such an officer
appointed), or by the President or any Vice-President and by the Treasurer
or
assistant treasurer or the Secretary or assistant secretary, certifying the
number of shares owned by him in the corporation. Any or all of the signatures
on the certificate may be a facsimile. In case any officer, transfer agent,
or
registrar who has signed or whose facsimile signature has been placed upon
a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued with the same effect as
if
he were such officer, transfer agent, or registrar at the date of issue. If
the
corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in
section 202 of the Delaware General Corporation Law, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate which the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section
6.2
Lost
Certificates.
The
Board
of Directors may direct a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the corporation alleged
to have been lost or destroyed, upon the making of an affidavit of that fact
by
the person claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to indemnify the corporation in
such
manner as it shall require and/or to give the corporation a surety bond in
such
form and amount as it may direct as indemnity against any claim that may be
made
against the corporation with respect to the certificate alleged to have been
lost or destroyed.
Section
6.3
Transfers.
Transfers
of record of shares of stock of the corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, and
upon
the surrender of a certificate or certificates for a like number of shares,
properly endorsed.
Section
6.4
Fixing
Record Dates.
(a)
In
order
that the corporation may determine the stockholders entitled to notice of or
to
vote at any meeting of stockholders or any adjournment thereof, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 60 nor less than 10
days
before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice
of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived,
at
the close of business on the day next preceding the date on which the meeting
is
held. A determination of stockholders of record entitled notice of or to vote
at
a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the
adjourned meeting.
(b)
In
order
that the corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such action.
If no
record date is fixed, the record date for determining stockholders for any
such
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
Section
6.5
Registered
Stockholders.
The
corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends and to
vote
as such owner, and shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by the laws of Delaware.
ARTICLE
7
OTHER
SECURITIES OF THE CORPORATION
All
bonds, debentures and other corporate securities of the corporation, other
than
stock certificates, may be signed by the Chairman of the Board (if there be
such
an officer appointed), or the President or any Vice-President or such other
person as may be authorized by the Board of Directors and the corporate seal
impressed thereon or a facsimile of such seal imprinted thereon and attested
by
the signature of the Secretary or an assistant secretary, or the Treasurer
or an
assistant treasurer; provided, however, that where any such bond, debenture
or
other corporate security shall be authenticated by the manual signature of
a
trustee under an indenture pursuant to which such bond, debenture or other
corporate security shall be issued, the signature of the persons signing and
attesting the corporate seal on such bond, debenture or other corporate security
may be the imprinted facsimile of the signatures of such persons. Interest
coupons appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the Treasurer or
an
assistant treasurer of the corporation, or such other person as may be
authorized by the Board of Directors, or bear imprinted thereon the facsimile
signature of such person. In case any officer who shall have signed or attested
any bond, debenture or other corporate security, or whose facsimile signature
shall appear thereon has ceased to be an officer of the corporation before
the
bond, debenture or other corporate security so signed or attested shall have
been delivered, such bond, debenture or other corporate security nevertheless
may be adopted by the corporation and issued and delivered as though the person
who signed the same or whose facsimile signature shall have been used thereon
had not ceased to be such officer of the corporation.
ARTICLE
8
CORPORATE
SEAL
The
corporate seal shall consist of a die bearing the name of the corporation and
the state and date of its incorporation. Said seal may be used by causing it
or
a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE
9
INDEMNIFICATION
OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
Section
9.1
Right
to Indemnification.
Each
person who was or is a party or is threatened to be made a party to or is
involved (as a party, witness, or otherwise), in any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative (hereinafter a “Proceeding”), by reason of the fact that he, or
a person of whom he is the legal representative, is or was a director, officer,
employee, or agent of the corporation or is or was serving at the request of
the
corporation as a director, officer, employee, or agent of another corporation
or
of a partnership, joint venture, trust, or other enterprise, including service
with respect to employee benefit plans, whether the basis of the Proceeding
is
alleged action in an official capacity as a director, officer, employee, or
agent or in any other capacity while serving as a director, officer, employee,
or agent (hereafter an “Agent”), shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended or interpreted (but, in
the
case of any such amendment or interpretation, only to the extent that such
amendment or interpretation permits the corporation to provide broader
indemnification rights than were permitted prior thereto) against all expenses,
liability, and loss (including attorneys’ fees, judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement, and any
interest, assessments, or other charges imposed thereon, and any federal, state,
local, or foreign taxes imposed on any Agent as a result of the actual or deemed
receipt of any payments under this Article) reasonably incurred or suffered
by
such person in connection with investigating, defending, being a witness in,
or
participating in (including on appeal), or preparing for any of the foregoing
in, any Proceeding (hereinafter “Expenses”);
provided,
however
,
that
except as to actions to enforce indemnification rights pursuant to
Section
9.3
of this
Article, the corporation shall indemnify any Agent seeking indemnification
in
connection with a Proceeding (or part thereof) initiated by such person only
if
the Proceeding (or part thereof) was authorized by the Board of Directors of
the
corporation. The right to indemnification conferred in this Article shall be
a
contract right.
Section
9.2
Authority
to Advance Expenses.
Expenses
incurred by an officer or director (acting in his capacity as such) in defending
a Proceeding shall be paid by the corporation in advance of the final
disposition of such Proceeding, provided, however, that if required by the
Delaware General Corporation Law, as amended, such Expenses shall be advanced
only upon delivery to the corporation of an undertaking by or on behalf of
such
director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the corporation as authorized
in
this Article or otherwise. Expenses incurred by other Agents of the corporation
(or by the directors or officers not acting in their capacity as such, including
service with respect to employee benefit plans) may be advanced upon such terms
and conditions as the Board of Directors deems appropriate. Any obligation
to
reimburse the corporation for Expense advances shall be unsecured and no
interest shall be charged thereon.
Section
9.3
Right
of Claimant to Bring Suit.
If
a
claim under
Section
9.1
or
Section
9.2
of this
Article is not paid in full by the corporation within 60 days after a
written claim has been received by the corporation, the claimant may at any
time
thereafter bring suit against the corporation to recover the unpaid amount
of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense (including attorneys’ fees) of prosecuting such
claim. It shall be a defense to any such action (other than an action brought
to
enforce a claim for expenses incurred in defending a Proceeding in advance
of
its final disposition where the required undertaking has been tendered to the
corporation) that the claimant has not met the standards of conduct that make
it
permissible under the Delaware General Corporation Law for the corporation
to
indemnify the claimant for the amount claimed. The burden of proving such a
defense shall be on the corporation. Neither the failure of the corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper under the circumstances
because he has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant had not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that claimant has
not
met the applicable standard of conduct.
Section
9.4
Provisions
Nonexclusive.
The
rights conferred on any person by this Article shall not be exclusive of any
other rights that such person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, agreement, vote of stockholders
or disinterested directors, or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such office. To
the
extent that any provision of the Certificate, agreement, or vote of the
stockholders or disinterested directors is inconsistent with these bylaws,
the
provision, agreement, or vote shall take precedence.
Section
9.5
Authority
to Insure.
The
corporation may purchase and maintain insurance to protect itself and any Agent
against any Expense, whether or not the corporation would have the power to
indemnify the Agent against such Expense under applicable law or the provisions
of this Article.
Section
9.6
Survival
of Rights.
The
rights provided by this Article shall continue as to a person who has ceased
to
be an Agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
Section
9.7
Settlement
of Claims.
The
corporation shall not be liable to indemnify any Agent under this Article
(a) for any amounts paid in settlement of any action or claim effected
without the corporation’s written consent, which consent shall not be
unreasonably withheld; or (b) for any judicial award if the corporation was
not given a reasonable and timely opportunity, at its expense, to participate
in
the defense of such action.
Section
9.8
Effect
of Amendment.
Any
amendment, repeal, or modification of this Article shall not adversely affect
any right or protection of any Agent existing at the time of such amendment,
repeal, or modification.
Section
9.9
Subrogation.
In
the
event of payment under this Article, the corporation shall be subrogated to
the
extent of such payment to all of the rights of recovery of the Agent, who shall
execute all papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents necessary to
enable the corporation effectively to bring suit to enforce such
rights.
Section
9.10
No
Duplication of Payments.
The
corporation shall not be liable under this Article to make any payment in
connection with any claim made against the Agent to the extent the Agent has
otherwise actually received payment (under any insurance policy, agreement,
vote, or otherwise) of the amounts otherwise indemnifiable
hereunder.
ARTICLE
10
NOTICES
Whenever,
under any provisions of these Bylaws, notice is required to be given to any
stockholder, the same shall be given either (1) in writing, timely and duly
deposited in the United States Mail, postage prepaid, and addressed to his
last known post office address as shown by the stock record of the corporation
or its transfer agent, or (2) by a means of electronic transmission that
satisfies the requirements of
Section
2.4(e)
of these
Bylaws. Any notice required to be given to any director may be given by either
of the methods hereinabove stated, except that such notice other than one which
is delivered personally, shall be sent to such address or (in the case of
electronic communication) such e-mail address, facsimile telephone number or
other form of electronic address as such director shall have filed in writing
or
by electronic communication with the Secretary of the corporation, or, in the
absence of such filing, to the last known post office address of such director.
If no address of a stockholder or director be known, such notice may be sent
to
the office of the corporation required to be maintained pursuant to
Section
1.2
of
ARTICLE
1
hereof.
An affidavit of mailing, executed by a duly authorized and competent employee
of
the corporation or its transfer agent appointed with respect to the class of
stock affected, specifying the name and address or the names and addresses
of
the stockholder or stockholders, director or directors, to whom any such notice
or notices was or were given, and the time and method of giving the same, shall
be conclusive evidence of the statements therein contained. All notices given
by
mail, as above provided, shall be deemed to have been given as at the time
of
mailing and all notices given by means of electronic transmission shall be
deemed to have been given as at the sending time recorded by the electronic
transmission equipment operator transmitting the same. It shall not be necessary
that the same method of giving notice be employed in respect of all directors,
but one permissible method may be employed in respect of any one or more, and
any other permissible method or methods may be employed in respect of any other
or others. The period or limitation of time within which any stockholder may
exercise any option or right, or enjoy any privilege or benefit, or be required
to act, or within which any director may exercise any power or right, or enjoy
any privilege, pursuant to any notice sent him in the manner above provided,
shall not be affected or extended in any manner by the failure of such a
stockholder or such director to receive such notice. Whenever any notice is
required to be given under the provisions of the statutes or of the Certificate
of Incorporation, or of these Bylaws, a waiver thereof in writing signed by
the
person or persons entitled to said notice, or a waiver by electronic
transmission by the person entitled to notice, whether before or after the
time
stated therein, shall be deemed equivalent thereto. Whenever notice is required
to be given, under any provision of law or of the Certificate of Incorporation
or Bylaws of the corporation, to any person with whom communication is unlawful,
the giving of such notice to such person shall not be required and there shall
be no duty to apply to any governmental authority or agency for a license or
permit to give such notice to such person. Any action or meeting which shall
be
taken or held without notice to any such person with whom communication is
unlawful shall have the same force and effect as if such notice had been duly
given. In the event that the action taken by the corporation is such as to
require the filing of a certificate under any provision of the Delaware General
Corporation Law, the certificate shall state, if such is the fact and if notice
is required, that notice was given to all persons entitled to receive notice
except such persons with whom communication is unlawful.
ARTICLE
11
AMENDMENTS
These
Bylaws may be repealed, altered or amended or new Bylaws adopted at any meeting
of the stockholders, either annual or special, by the affirmative vote of 66
2/3% of the stock entitled to vote at such meeting, unless a larger vote is
required by these Bylaws or the Certificate of Incorporation. The Board of
Directors shall also have the authority to repeal, alter or amend these Bylaws
or adopt new Bylaws (including, without limitation, the amendment of any Bylaws
setting forth the number of directors who shall constitute the whole Board
of
Directors) by written consent or at any annual, regular, or special meeting
by
the affirmative vote of a majority of the whole number of directors, subject
to
the power of the stockholders to change or repeal such Bylaws and provided
that
the Board of Directors shall not make or alter any Bylaws fixing the
qualifications, classifications, or term of office of directors.
CERTIFICATE
OF SECRETARY
The
undersigned Secretary of Combimatrix Corporation, a Delaware corporation, hereby
certifies that the foregoing is a full, true and correct copy of the Amended
and
Restated Bylaws of said corporation, with all amendments to date of this
Certificate.
WITNESS
the signature of the undersigned this 28th day of November, 2006.
|
/s/ Scott
Burell
|
|
Scott Burell, Secretary
|
21
Exhibit
5.1
December
26, 2006
Board
of
Directors
Combimatrix
Corporation
6500
Harbour Heights Parkway
Suite
301
Mukilteo,
WA 98275
Re:
CombiMatrix
Corporation
Registration
Statement on Form S-1 to be Filed with the Securities and Exchange
Commission on or about December 27, 2006
Gentlemen:
This
opinion is furnished to you in connection with the above-referenced registration
statement on Form S-1 (the “Registration Statement”), to be filed with the
Securities and Exchange Commission (“SEC”) under the Securities Act of 1933, as
amended (the “Act”), for the registration of the redemption of Acacia
Research-CombiMatrix common stock (“AR-CombiMatrix Stock”) in exchange for
common stock of CombiMatrix Corporation (the “Registrant”) pursuant to the
Amended and Restated Certificate of Incorporation of Acacia Research
Corporation.
We
have
acted as counsel for the Registrant in connection with the Registration
Statement. For purposes of this opinion, we have assumed, without independent
verification or investigation, that each instrument has been duly and validly
authorized, executed, and delivered by each of the parties thereto, the
genuineness of all of all signatures, the authenticity of all documents
submitted to us as originals, and conformity with the authentic originals of
all
documents submitted to us as copies. In rendering the opinions included herein,
we have relied upon the factual representations made by the Registrant.
We
express no opinion as to any jurisdiction other than federal securities laws
and
the Delaware General Corporation Law (including, to the extent applicable,
Delaware statutory and constitutional provisions and reported case law).
Based
on
the foregoing, and subject to the qualifications and assumptions stated herein,
we are of the opinion that when issued and transferred in the manner referred
to
in the Registration Statement, the Securities issued thereby will be legally
and
validly issued, fully paid and non-assessable.
The
opinions contained in this opinion letter merely constitute expressions of
my
reasoned professional judgment regarding the matters of law addressed herein
and
neither are intended nor should they be construed as a prediction or guarantee
that any court or other public or governmental authority will reach any
particular result or conclusion as to the matters of law addressed herein.
The
opinions expressed herein are written as of and relate solely to the date hereof
and are rendered exclusively for the benefit of the Registrant and its
stockholders in connection with the Registration. We assume no obligation to
advise you of facts, circumstances, events or developments which hereafter
may
be brought to our attention and which may alter, affect or modify the opinions
expressed herein.
We
hereby
consent to use this opinion as an exhibit to the Registration Statement and
to
the use of our name therein and in the related prospectus under the caption
“Legal Matters.” In giving such consent, we do not thereby admit that we come
within the category of persons whose consent is required under Section 7 of
the Act, or the Rules and Regulations of the SEC thereunder.
It
is
understood that this opinion is to be used only in connection with the offer
and
sale of the Securities while the Registration Statement is in effect.
Very
truly yours,
/s/
Dennis J. Rasor
EXHIBIT 10.1
TAX
ALLOCATION AGREEMENT
by
and between
ACACIA
RESEARCH CORPORATION
and
COMBIMATRIX
CORPORATION
TABLE
OF CONTENTS
Page
ARTICLE I DEFINITIONS
|
1
|
Section
1.01
General
|
1
|
Section
1.02
Schedules,
etc
|
6
|
|
|
ARTICLE II FILING OF TAX RETURNS; PAYMENT
OF
TAXES; REFUNDS
|
6
|
Section
2.01
Preparation
of Tax Returns
|
6
|
Section
2.02
Payment
of Taxes
|
8
|
Section
2.03
Tax
Refunds and Carrybacks
|
10
|
Section
2.04
Allocation
of Straddle Period Taxes
|
11
|
|
|
ARTICLE III TAX INDEMNIFICATION; TAX
CONTESTS
|
12
|
Section
3.01
Indemnification
|
12
|
Section
3.02
CombiMatrix
Tax Acts
|
13
|
Section
3.03
Notice
of Indemnity
|
14
|
Section
3.04
Payments
|
14
|
Section
3.05
Tax
Contests
|
16
|
|
|
ARTICLE IV OPTIONS; COMPENSATION PAYMENTS; INTEREST
CHARGE FOR LATE PAYMENTS; CURRENCY CALCULATIONS;
EFFECTIVE
TIME OF TRANSACTIONS
|
16
|
Section
4.01
Stock
Options; Restricted Shares
|
16
|
Section
4.02
Compensation
Payments
|
18
|
Section
4.03
Change
in Law
|
18
|
Section
4.04
Interest
Charge for Late Payments
|
18
|
Section
4.05
Currency
Calculations
|
19
|
Section
4.06
Effective
Time of Transaction
|
19
|
|
|
ARTICLE V COOPERATION AND EXCHANGE OF
INFORMATION
|
19
|
Section
5.01
Inconsistent
Actions
|
19
|
Section
5.02
Cooperation
and Exchange of Information
|
19
|
Section
5.03
Tax
Records
|
20
|
|
|
ARTICLE VI MISCELLANEOUS
|
20
|
Section
6.01
Entire
Agreement; Construction
|
20
|
Section
6.02
Effectiveness
|
21
|
Section
6.03
Survival
of Agreements
|
21
|
Section
6.04
Governing
Law
|
21
|
Section
6.05
Notices
|
21
|
Section
6.06
Amendments
|
21
|
Section
6.07
Successors
and Assigns
|
21
|
Section
6.08
Captions;
Currency
|
21
|
Section
6.09
Severability
|
21
|
Section
6.10
Parties
in Interest
|
22
|
Section
6.11
Schedules
|
22
|
Section
6.12
Termination
|
22
|
Section
6.13
Waivers;
Remedies
|
22
|
Section
6.14
Counterparts
|
22
|
Section
6.15
Performance
|
22
|
Section
6.16
Interpretation
|
22
|
Section
6.17
Dispute
Resolution
|
23
|
SCHEDULE
1.01
|
COMBIMATRIX
TAX GROUP MEMBERS
|
SCHEDULE
2.01(f)
|
TAX
RETURNS TO BE FILED BY NON-RESPONSIBLE PARTY
|
SCHEDULE
3.02(a)
|
COMBIMATRIX
TAX ACT
|
SCHEDULE
3.02(b)
|
COMBIMATRIX
TAX REPRESENTATION LETTER
|
SCHEDULE
3.02(c)
|
PRE-DISTRIBUTION
TAX-FREE TRANSACTIONS
|
TAX
ALLOCATION AGREEMENT
THIS
TAX
ALLOCATION AGREEMENT (this “
Agreement
”)
is
made and entered into as of December 21, 2006, by and between ACACIA RESEARCH
CORPORATION, a Delaware corporation (“
Acacia
”),
and
COMBIMATRIX CORPORATION, a Delaware corporation and, as of the date hereof,
a
wholly-owned subsidiary of Acacia (“
CombiMatrix
”).
RECITALS
A.
The
Acacia Board (as defined herein) has determined that it is appropriate and
desirable, subject to the terms and conditions contained in the Distribution
Agreement by and between Acacia and CombiMatrix dated as of the date hereof
(“
Distribution
Agreement
”)
for
Acacia to distribute on a pro rata basis to holders of shares of CBMX Tracking
Stock (as defined herein) the outstanding shares of CombiMatrix Common Stock
(as
defined herein) owned by Acacia.
B.
Acacia
and CombiMatrix wish to provide for and agree upon the allocation between the
Acacia Tax Group (as defined herein) and the CombiMatrix Tax Group (as defined
herein) of all responsibilities, liabilities and benefits relating to or
affecting Taxes (as defined herein) paid or payable by either of them for all
taxable periods, whether beginning before, on or after the Distribution Date
(as
defined herein).
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and of the respective agreements
contained in this Agreement, the parties hereto hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01
General
.
As used
in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of
the
terms defined). Any capitalized term not otherwise defined in this Agreement
shall have the meaning ascribed to it in the Distribution
Agreement.
“
Acacia
”
shall
have the meaning ascribed thereto in the preamble.
“
Acacia
Board
”
shall
mean the Board of Directors of Acacia or a duly authorized committee
thereof.
“
Acacia
Business
”
shall
have the meaning ascribed thereto that term in the Distribution
Agreement.
“
Acacia/CombiMatrix
Tax Group
”
shall
mean any corporation or other legal entity which is a member of the Acacia
Tax
Group or the CombiMatrix Tax Group but only with respect to taxable periods
(or
portions thereof) ending on or before or including the Distribution
Date.
“
Acacia
Group Employees and Former Employees
”
shall
mean individuals (i) who are employees of any member of the Acacia Tax
Group on the date of the event giving rise to a deduction in respect of any
Compensation Payments made to such individuals or Stock Options or Restricted
Stock held by such individuals, or (ii) whose most recent employment with any
member of the Acacia Tax Group or the CombiMatrix Tax Group prior to such date
was more closely associated with the Acacia Business or some other business
rather than the CombiMatrix Business.
“
Acacia
Restricted Stock
”
shall
mean shares of CBMX Tracking Stock subject to restrictions on transferability
and subject to a substantial risk of forfeiture.
“
Acacia
Tax Group
”
shall
mean (i) Acacia, (ii) any corporation or other legal entity which Acacia
directly or indirectly owns immediately following the Distribution Date other
than a member of the CombiMatrix Tax Group, and (iii) any other corporation
or
other legal entity which Acacia directly or indirectly owned at any time prior
to the Distribution Date (but only with respect to the period such corporation
or other entity was so owned by Acacia) other than a member of the CombiMatrix
Tax Group.
“
Actually
Realized
”
shall
mean, for purposes of determining the timing of any Taxes (or related Tax cost
or benefit) relating to any payment, transaction, occurrence or event, the
time
at which the amount of Taxes (including estimated Taxes) payable by any person
is increased above or reduced below, as the case may be, the amount of Taxes
that such person would be required to pay but for the payment, transaction,
occurrence or event.
“
CBMX
Tracking Stock
”
shall
mean the Acacia Research-CombiMatrix Common, par value of $0.001 per share,
of
Acacia.
“
CBMX
Stock Options
”
shall
mean options to acquire CBMX Tracking Stock.
“
Code
”
shall
mean the Internal Revenue Code of 1986, as amended, or any successor
legislation.
“
CombiMatrix
”
shall
have the meaning ascribed thereto in the preamble.
“
CombiMatrix
Business
”
shall
have the meaning ascribed thereto that term in the Distribution
Agreement.
“
CombiMatrix
Common Stock
”
shall
mean the Common Stock, par value $0.001 per share, of CombiMatrix.
“
CombiMatrix
Common Stock Options
”
shall
mean options to acquire CombiMatrix Common Stock.
“
CombiMatrix
Group Employees and Former Employees
”
shall
mean individuals (i) who are employees of any member of the CombiMatrix Tax
Group on the date of the event giving rise to a deduction in respect of any
Compensation Payments made to such individuals or Stock Options held by such
individuals or (ii) whose most recent employment with any member of the Acacia
Tax Group or the CombiMatrix Tax Group prior to such date was more closely
associated with the CombiMatrix Business or some other business rather than
the
Acacia Business.
“
CombiMatrix
Tax Act
”
shall
have the meaning set forth in Section 3.02(a).
“
CombiMatrix
Tax Group
”
shall
mean (i) CombiMatrix and (ii) any corporation or other legal entity set forth
on
Schedule 1.01.
“
CombiMatrix
Tax Representation Letter
”
shall
mean the letter delivered by CombiMatrix to Acacia on the Distribution Date,
substantially in the form set forth in Schedule 3.02(b).
“
Compensation
Payments
”
shall
mean all non-qualified employee benefit plan and welfare benefit plan payments
made under the Employee Matters Agreement dated the date hereof by and between
Acacia and CombiMatrix.
“
Distribution
”
shall
mean the distribution of the CombiMatrix Common Stock on a pro rata basis to
holders of CBMX Tracking Stock on the Distribution Date pursuant to the
Distribution Agreement.
“
Distribution
Agreement
”
shall
have the meaning ascribed thereto in Recital A of this Agreement.
“
Distribution
Transaction
”
shall
mean any transaction undertaken in connection with the
Distribution.
“
Distribution
Date
”
shall
mean the date on which the Distribution occurs (or, if different, the date
on
which the Distribution is deemed to occur for U.S. federal Income Tax purposes).
For purposes of this Agreement, the Distribution shall be deemed effective
as of
5:00 p.m. (Pacific Standard Time) on the Distribution Date.
“
Foreign
Income Tax
”
shall
mean any Income Tax other than a U.S. federal, state or local Income
Tax.
“
Foreign
Income Tax Returns
”
shall
mean any Income Tax Return which is not a U.S. federal, state or local Income
Tax Return.
“
Income
Tax
”
shall
mean (a) any Tax based upon, measured by, or calculated with respect to (i)
net
income or profits (including, but not limited to, any capital gains, minimum
Tax
and any Tax on items of Tax preference, but not including sales, use, real
or
personal property, gross or net receipts, transfer or similar Taxes) or (ii)
multiple bases (including, but not limited to, corporate franchise, doing
business or occupation Taxes) if one or more of the bases upon which such Tax
may be based, measured by, or calculated with respect to, is described in clause
(i) above, or (b) any U.S. state or local franchise Tax; including in the case
of each of (a) and (b) any related interest and any penalties, additions to
such
Tax or additional amounts imposed with respect thereto by any Tax
Authority.
“
Income
Tax Benefit
”
shall
mean for any taxable period the excess of (i) the hypothetical Income Tax
liability of the taxpayer for the taxable period calculated as if the Timing
Difference or Reverse Timing Difference, as the case may be, had not occurred
but with all other facts unchanged, over (ii) the actual Income Tax liability
of
the taxpayer for the taxable period, calculated taking into account the Timing
Difference or Reverse Timing Difference, as the case may be (treating an Income
Tax refund or credit as a negative Income Tax liability for purposes of such
calculation).
“
Income
Tax Detriment
”
shall
mean for any taxable period the excess of (i) the actual Income Tax liability
of
the taxpayer for the taxable period, calculated taking into account the Timing
Difference or Reverse Timing Difference, as the case may be, over (ii) the
hypothetical Income Tax liability of the taxpayer for the taxable period,
calculated as if the Timing Difference or Reverse Timing Difference, as the
case
may be, had not occurred but with all other facts unchanged (treating an Income
Tax refund or credit as a negative Income Tax liability for purposes of such
calculation).
“
Income
Tax Return
”
shall
mean any Tax Return that relates to Income Taxes.
“
Indemnitee
”
shall
have the meaning set forth in Section 3.03.
“
Indemnitor
”
shall
have the meaning set forth in Section 3.03.
“
Indemnity
Issue
”
shall
have the meaning set forth in Section 3.03.
“
IRS
”
shall
mean the Internal Revenue Service.
“
Non-Income
Tax
”
shall
mean any Tax other than an Income Tax.
“
Person
”
shall
mean any individual, partnership, joint venture, corporation, limited liability
entity, trust, unincorporated organization or other entity (including a
governmental entity).
“
Post-Distribution
Taxable Period
”
shall
mean a taxable period beginning after the Distribution Date.
“
Post-Distribution
Tax Act
”
shall
have the meaning set forth in Section 3.01(a).
“
Post-Tax
Indemnification Period
”
shall
mean any Post-Distribution Taxable Period and that portion of any Straddle
Period that begins on the day after the Distribution Date.
“
Pre-Distribution
Taxable Period
”
shall
mean a taxable period ending on or before the Distribution Date.
“
Restricted
Stock
”
shall
mean CBMX Restricted Stock or CombiMatrix Restricted Stock.
“
Reverse
Timing Difference
”
shall
mean an increase in income, gain or recapture, or a decrease in deduction,
loss
or credit, as calculated for Income Tax purposes, of the taxpayer for the Tax
Indemnification Period coupled with an increase in deduction, loss or credit,
or
a decrease in income, gain or recapture, of the taxpayer for any Post-Tax
Indemnification Period.
“
Rights
”
shall
have the meaning ascribed thereto in the Distribution Agreement.
“
Separation
Agreements
”
shall
have the meaning ascribed thereto in the Distribution Agreement.
“
Stock
Options
”
shall
mean CombiMatrix Common Stock Options or CBMX Tracking Stock
Options.
“
Straddle
Period
”
shall
mean a taxable period that includes but does not end on the Distribution
Date.
“
Tax
”
and
“
Taxes
”
shall
mean all forms of taxation, whenever created or imposed, and whether of the
United States or elsewhere, and whether imposed by a federal, state, municipal,
governmental, territorial, local, foreign or other body, and without limiting
the generality of the foregoing, shall include net income, gross income, gross
receipts, sales, use, value added, ad valorem, transfer, recording, franchise,
profits, license, lease, service, service use, payroll, wage, withholding,
employment, unemployment insurance, workers compensation, social security,
excise, severance, stamp, business license, business organization, occupation,
premium, property, environmental, windfall profits, customs, duties, alternative
minimum, estimated or other taxes, fees, premiums, assessments or charges of
any
kind whatever imposed or collected by any governmental entity or political
subdivision thereof, together with any related interest and any penalties,
additions to such tax or additional amounts imposed with respect thereto by
any
Tax Authority.
“
Tax
Authority
”
shall
mean, with respect to any Tax, any governmental entity, quasi-governmental
body
or political subdivision thereof that imposes such Tax and the agency (if any)
charged with the determination or collection of such Tax for such entity, body
or subdivision.
“
Tax
Group
”
shall
mean the Acacia Tax Group or the CombiMatrix Tax Group, as the case may
be.
“
Tax
Indemnification Period
”
shall
mean any Pre-Distribution Taxable Period and that portion of any Straddle Period
that ends on the Distribution Date.
“
Tax
Return
”
shall
mean any return, filing, questionnaire, information return, election or other
document required or permitted to be filed, including requests for extensions
of
time, filings made with respect to estimated tax payments, claims for refund
and
amended returns that may be filed, for any period with any Tax Authority
(whether domestic or foreign) in connection with any Tax (whether or not a
payment is required to be made with respect to such filing).
“
Timing
Difference
”
means
an increase in income, gain or recapture, or a decrease in deduction, loss
or
credit, as calculated for Income Tax purposes, of the taxpayer for any Post-Tax
Indemnification Period coupled with an increase in deduction, loss or credit,
or
a decrease in income, gain or recapture, of the taxpayer for the Tax
Indemnification Period.
Section
1.02
Schedules,
etc
.
References to a “
Schedule
”
are,
unless otherwise specified, to a Schedule attached to this Agreement; references
to “
Section
”
or
“
Article
”
are,
unless otherwise specified, to one of the Sections or Articles of this
Agreement; references to “
sub-section
”
are,
unless the context otherwise requires, references to the section in which the
reference appears; and references to this Agreement include the
Schedules.
ARTICLE
II
FILING
OF TAX RETURNS; PAYMENT OF TAXES; REFUNDS
Section
2.01
Preparation
of Tax Returns
.
(a)
United
States Federal Income Tax Returns
.
(i)
Acacia
shall prepare and file or cause to be prepared and filed all U.S. federal Income
Tax Returns (including amendments thereto) which are required to be filed in
respect of (A) a member of the Acacia/CombiMatrix Tax Group for any
Pre-Distribution Taxable Period or Straddle Period or (B) a member of the Acacia
Tax Group for any Post-Distribution Taxable Period. CombiMatrix hereby
irrevocably designates, and agrees to cause each of its affiliates to so
designate, Acacia as its agent to take any and all actions necessary or
incidental to the preparation and filing of such U.S. federal Income Tax Returns
of Acacia’s affiliated group.
(ii)
All
U.S.
federal Income Tax Returns (including amendments thereto) required to be filed
in respect of a member of the CombiMatrix Tax Group which are not the
responsibility of the Acacia Tax Group are the responsibility of the CombiMatrix
Tax Group.
(b)
United
States State and Local Income Tax Returns
.
(i)
Acacia
shall prepare and file or cause to be prepared and filed all U.S. state and
local Income Tax Returns (including amendments thereto) which are required
to be
filed in respect of (A) a member of the Acacia/CombiMatrix Tax Group for any
Pre-Distribution Taxable Period or Straddle Period including consolidated,
combined and unitary Tax Returns including a member of the CombiMatrix Tax
Group, (B) any member of the CombiMatrix Tax Group for any Pre-Distribution
Period or Straddle Period in which it conducts or has conducted both an Acacia
business and a CombiMatrix business or (C) a member of the Acacia Tax Group
for
any Post-Distribution Taxable Period. CombiMatrix hereby irrevocably designates,
and agrees to cause each of its affiliates to so designate, Acacia as its agent
to take any and all actions necessary or incidental to the preparation and
filing of such U.S. state and local Income Tax Returns of members of the Acacia
Tax Group.
(ii)
All
U.S.
state and local Income Tax Returns (including amendments thereto) required
to be
filed in respect of a member of the CombiMatrix Tax Group which are not the
responsibility of the Acacia Tax Group shall be the responsibility of the
CombiMatrix Tax Group.
(c)
Foreign
Income Tax Returns
.
(i)
Acacia
shall prepare and file or cause to be prepared and filed all Foreign Income
Tax
Returns (including amendments thereto) which are required to be filed in respect
of (A) a member of the Acacia Tax Group for any Pre-Distribution Taxable Period
or Straddle Period, (B) a member of the CombiMatrix Tax Group for any
Pre-Distribution Period or Straddle Period in which it conducts, or has
conducted, both an Acacia business and a CombiMatrix business, or (C) a member
of the Acacia Tax Group for any Post-Distribution Taxable Period. CombiMatrix
hereby irrevocably designates, and agrees to cause each of its affiliates to
so
designate, Acacia as its agent to take any and all actions necessary or
incidental to the preparation and filing of such Foreign Income Tax Returns
of
members of the Acacia Tax Group.
(ii)
All
Foreign Income Tax Returns (including amendments thereto) required to be filed
in respect of a member of the CombiMatrix Tax Group which are not the
responsibility of the Acacia Tax Group shall be the responsibility of the
CombiMatrix Tax Group.
(d)
Non-Income
Tax Returns
.
(i)
Acacia
shall prepare and file or cause to be prepared and filed all Tax Returns
(including amendments thereto) which are Non-Income Tax Returns which are
required to be filed in respect of (A) a member of the Acacia Tax Group for
any
Pre-Distribution Taxable Period or Straddle Period), (B) any member of the
CombiMatrix Tax Group for any Pre-Distribution Period or Straddle Period in
which it conducts or has conducted both an Acacia business and a CombiMatrix
business or (C) a member of the Acacia Tax Group for any Post-Distribution
Taxable Period. CombiMatrix hereby irrevocably designates, and agrees to cause
each of its affiliates to so designate, Acacia as its agent to take any and
all
actions necessary or incidental to the preparation and filing of such non-U.S.
federal Income Tax Returns.
(ii)
All
Non-Income Tax Returns (including amendments thereto) required to be filed
in
respect of a member of the CombiMatrix Tax Group which are not the
responsibility of the Acacia Tax Group shall be the responsibility of the
CombiMatrix Tax Group.
(e)
Consistent
with Past Practice; Review by Non-Responsible Party
.
Unless
Acacia and CombiMatrix otherwise agree in writing, all Tax Returns (including
amendments thereto) described in this Section 2.01 filed after the date of
this
Agreement for Pre-Distribution Taxable Periods or Straddle Periods, in the
absence of a controlling change in law or circumstances, shall be prepared
on a
basis consistent with the elections, accounting methods, conventions and
principles of taxation used for the most recent taxable periods for which Tax
Returns involving similar matters have been filed. Upon the request of the
non-responsible party, the party responsible under this Section 2.01 for
preparation of a particular Tax Return for Pre-Distribution Taxable Periods
or
Straddle Periods shall make available a draft of such Tax Return (or relevant
portions thereof) for review and comment by such non-responsible party. Subject
to the provisions of this Agreement, all decisions relating to the preparation
of Tax Returns shall be made in the sole discretion of the party responsible
under this Agreement for such preparation.
(f)
Responsibility
for Filing
.
Although, pursuant to this Agreement, Acacia or CombiMatrix may be responsible
for filing a particular Tax Return, Acacia and CombiMatrix have agreed that
the
actual preparation and filing of certain Tax Returns will be done by the
non-responsible party. Schedule 2.01(f) attached hereto sets forth a schedule
specifying such Tax Returns. Acacia and CombiMatrix may agree from time to
time
to additions to or deletions from Schedule 2.01(f).
Section
2.02
Payment
of Taxes
.
(a)
United
States Federal Income Taxes
.
Except
as otherwise provided in this Agreement:
(i)
Acacia
shall pay or cause to be paid, on a timely basis, all Taxes due with respect
to
the consolidated U.S. federal Income Tax liability for (A) all members of the
Acacia Tax Group for any Pre-Distribution Taxable Period or Straddle Period,
including consolidated Tax Returns also including a member of the CombiMatrix
Tax Group, and (B) any member of the Acacia Tax Group for any Post-Distribution
Taxable Period,
provided
,
however
,
that
CombiMatrix, on behalf of the CombiMatrix Tax Group hereby assumes and agrees
to
pay directly to or at the direction of Acacia, at least five days prior to
the
date payment (including estimated payment) thereof is due, the share of such
U.S. federal Income Tax liability of any member of the CombiMatrix Tax Group
attributable to the CombiMatrix business, assets or activities allocated between
the Acacia Tax Group, on the one hand, and the CombiMatrix Tax Group, on the
other hand, determined in a manner analogous to that set forth in Treasury
Regulation Section 1.1552-1(a)(2).
(ii)
CombiMatrix
shall pay or cause to be paid, on a timely basis, all U.S. federal Income Taxes
of the CombiMatrix Tax Group which are not the responsibility of the Acacia
Tax
Group.
(b)
United
States State and Local Income Taxes
.
Except
as otherwise provided in this Agreement:
(i)
Acacia
shall pay or cause to be paid, on a timely basis, all Taxes due with respect
to
the state and local Income Tax liability for (A) all members of the Acacia
Tax
Group for any Pre-Distribution Taxable Period or Straddle Period, including
consolidated, combined and unitary Tax Returns also including a member of the
CombiMatrix Tax Group, (B) any member of the CombiMatrix Tax Group for any
Pre-Distribution Period or Straddle Period in which it conducts or has conducted
both an Acacia business and a CombiMatrix business, and (C) any member of
the Acacia Tax Group for any Post-Distribution Taxable Period,
provided
,
however
,
that
CombiMatrix, on behalf of the CombiMatrix Tax Group hereby assumes and agrees
to
pay directly to or at the direction of Acacia, at least five days prior to
the
date payment (including estimated payment) thereof is due, the share of such
U.S. state and local Income Tax liability of any member of the CombiMatrix
Tax
Group attributable to the CombiMatrix business, assets or activities allocated
between the Acacia Tax Group, on the one hand, and the CombiMatrix Tax Group,
on
the other hand, determined in a manner analogous to that set forth in Treasury
Regulation Section 1.1552-1(a)(2).
(ii)
CombiMatrix
shall pay or cause to be paid, on a timely basis, all U.S. state and local
Income Taxes of the CombiMatrix Tax Group which are not the responsibility
of
the Acacia Tax Group.
(c)
Foreign
Income Taxes
.
Except
as otherwise provided in this Agreement:
(i)
Acacia
shall pay or cause to be paid, on a timely basis, all Taxes due with respect
to
the Foreign Income Tax liability for (A) all members of the Acacia Tax Group
for
any Pre-Distribution Taxable Period or Straddle Period, (B) any member of the
CombiMatrix Tax Group for any Pre-Distribution Period or Straddle Period in
which it conducts, or has conducted, both an Acacia business and a CombiMatrix
business, or (C) any member of the Acacia Tax Group for any Post-Distribution
Taxable Period,
provided
,
however
,
that
CombiMatrix, on behalf of the CombiMatrix Tax Group hereby assumes and agrees
to
pay directly to or at the direction of Acacia, at least five days prior to
the
date payment (including estimated payment) thereof is due, the share of such
Foreign Income Tax liability of any member of the CombiMatrix Tax Group
attributable to the CombiMatrix business, assets or activities allocated between
the Acacia Tax Group, on the one hand, and the CombiMatrix Tax Group, on the
other hand, determined in a manner analogous to that set forth in Treasury
Regulation Section 1.1552-1(a)(2).
(ii)
CombiMatrix
shall pay or cause to be paid, on a timely basis, all Foreign Income Taxes
which
are not the responsibility of the Acacia Tax Group.
(d)
Non-Income
Taxes
.
Except
as otherwise provided in this Agreement:
(i)
Acacia
shall pay or cause to be paid, on a timely basis, all Taxes which are Non-Income
Taxes due with respect to the Tax liability for (A) all members of the Acacia
Tax Group for any Pre-Distribution Taxable Period, Straddle Period or
Post-Distribution Taxable Period, (B) any member of the CombiMatrix Tax Group
for any Pre-Distribution Period or Straddle Period in which it conducts or
has
conducted both an Acacia business and a CombiMatrix business and (C) a member
of
the Acacia Tax Group for any Post-Distribution Taxable Period,
provided
,
however
,
that
CombiMatrix, on behalf of the CombiMatrix Tax Group hereby assumes and agrees
to
pay directly to or at the direction of Acacia, at least five days prior to
the
date payment (including estimated payment) thereof is due, the share of such
Non-Income Tax liability of any member of the CombiMatrix Tax Group,
attributable to the CombiMatrix business, assets or activities.
(ii)
CombiMatrix
shall pay or cause to be paid, on a timely basis, all Taxes which are Non-Income
Taxes which are not the responsibility of the Acacia Tax Group.
(e)
Employment
Taxes
.
CombiMatrix shall pay or cause to be paid, on a timely basis, all employment
Taxes for all Pre-Distribution Taxable Periods, Straddle Periods and
Post-Distribution Taxable Periods attributable to (I) any employee of the
CombiMatrix Tax Group on the day following the Distribution Date or (II) any
individual who was neither an employee of the CombiMatrix Tax Group or the
Acacia Tax Group on the day following the Distribution Date but whose most
recent employment prior to the Distribution Date with any member of the
CombiMatrix Tax Group or the Acacia Tax Group was more closely associated with
the CombiMatrix Business rather than the Acacia Business.
(f)
Post-Distribution
Date Taxes
.
Except
as otherwise provided in this Agreement, all Taxes for all Post-Distribution
Taxable Periods shall be paid or caused to be paid by the party responsible
under this Agreement for filing the Tax Returns pursuant to which such Taxes
are
due or, if no such Tax Returns are due, by the party liable for such
Taxes.
(g)
Credit
for Prior Tax Payments
.
To the
extent any member of a Tax Group has made a payment of Taxes (including
estimated Taxes) on or before the Distribution Date, the party liable for paying
such Taxes under this Agreement shall be entitled to treat the payment as having
been paid or caused to have been paid by such party, and such party shall not
be
required to reimburse the party which actually paid such Taxes.
(h)
Responsibility
for Payment; Notice of Payment Due
.
Although Acacia or CombiMatrix may be responsible for paying a particular Tax
liability, Acacia and CombiMatrix may agree that the actual payment to a Taxing
Authority of certain Tax liabilities will be made by the non-responsible party.
Acacia and CombiMatrix may agree to prepare a schedule setting forth such Tax
liabilities and may agree from time to time to additions to or deletions from
such schedule. In each case where Acacia or CombiMatrix, as the case may be,
is
required to make payment of Taxes to the other party, Acacia or CombiMatrix,
as
the case may be shall notify the other party as to the amount of Taxes due
from
the other party at least five days prior to the date payment (including
estimated payment) is due.
Section
2.03
Tax
Refunds and Carrybacks
.
(a)
Retention
and Payment of Tax Refunds
.
Except
as otherwise provided in this Agreement, Acacia shall be entitled to retain,
and
to receive within ten days after Actually Realized by the CombiMatrix Tax Group,
the portion of all refunds or credits of Taxes for which the Acacia Tax Group
is
liable pursuant to Section 2.02 or Section 3.01(a) or is treated as having
paid
or caused to have been paid pursuant to Section 2.02(d), and CombiMatrix shall
be entitled to retain, and to receive within ten days after Actually Realized
by
the Acacia Tax Group, the portion of all refunds or credits of Taxes for which
the CombiMatrix Tax Group is liable pursuant to Section 2.02 or Section 3.01(b)
or is treated as having paid or caused to have been paid pursuant to Section
2.02(d). The amount of any refund or credit of Taxes to which Acacia or
CombiMatrix is entitled to retain or receive pursuant to the foregoing sentence
shall be reduced to take account of any Taxes incurred by the CombiMatrix Tax
Group, in the case of a refund or credit to which Acacia is entitled, or the
Acacia Tax Group, in the case of a refund or credit to which CombiMatrix is
entitled, upon the receipt of such refund or credit.
(b)
Carrybacks;
Carryforwards
.
Unless
the parties otherwise agree in writing, CombiMatrix shall elect and shall cause
each member of the CombiMatrix Tax Group to elect, where permitted by law,
to
carry forward any net operating loss, net capital loss, charitable contribution
or other item arising after the Distribution Date that could, in the absence
of
such election, be carried back to a Pre-Distribution Taxable Period. Except
as
otherwise provided in this Agreement, notwithstanding the provisions of Section
2.03(a), (i) any refund or credit of Taxes resulting from the carryback of
any
item of Taxes attributable to the CombiMatrix Tax Group arising in a Post-Tax
Indemnification Period to a Tax Indemnification Period shall be for the account
and benefit of the CombiMatrix Tax Group, (ii) any refund or credit of Taxes
resulting from the carryback of any item of Taxes attributable to the Acacia
Tax
Group arising in a Post-Tax Indemnification Period to a Tax Indemnification
Period shall be for the account and benefit of the Acacia Tax Group, and (iii)
any refund or credit of Taxes resulting from a carryback of any item of federal
Income Taxes attributable to the Acacia/CombiMatrix Tax Group (including
derivative state and local refunds or credits) shall be for the account and
benefit of the party to this Agreement that generated such benefit, which shall
be determined on a case-by-case basis by a nationally recognized accounting
firm
selected by Acacia and reasonably satisfactory to CombiMatrix.
(c)
Refund
Claims
.
Acacia
shall be permitted to file at Acacia’s sole expense, and CombiMatrix shall
reasonably cooperate with Acacia in connection with, any claims for refund
of
Taxes to which Acacia is entitled pursuant to this Section 2.03 or any other
provision of this Agreement. Acacia shall reimburse CombiMatrix for any
reasonable out-of-pocket costs and expenses incurred by any member of the
CombiMatrix Tax Group in connection with such cooperation. CombiMatrix shall
be
permitted to file at CombiMatrix’s sole expense, and Acacia shall reasonably
cooperate with CombiMatrix in connection with, any claims for refunds of Taxes
to which CombiMatrix is entitled pursuant to this Section 2.03 or any other
provision of this Agreement. CombiMatrix shall reimburse Acacia for any
reasonable out-of-pocket costs and expenses incurred by any member of the Acacia
Tax Group in connection with such cooperation.
Section
2.04
Allocation
of Straddle Period Taxes
.
In the
case of any Straddle Period:
(a)
Periodic
Taxes
.
(i) The
periodic Taxes of a member of the Acacia Tax Group or the CombiMatrix Tax Group
or its business, assets or activities that are not based on income or receipts
(
e.g.
,
property Taxes) for the portion of any Straddle Period ending on the
Distribution Date shall be computed based on the ratio of the number of days
in
such portion of the Straddle Period and the number of days in the entire taxable
period; and (ii) the periodic taxes of a member of the Acacia Tax Group or
the
CombiMatrix Tax Group or its business, assets or activities that are not based
on income or receipts for the portion of any Straddle Period beginning on the
day after the Distribution Date shall be computed based on the ratio of the
number of days in such portion of the Straddle Period and the number of days
in
the entire taxable period.
(b)
Non-Periodic
Taxes
.
(i) The
Taxes of a member of the Acacia Tax Group or the CombiMatrix Tax Group or its
business, assets or activities for that portion of any Straddle Period ending
on
the Distribution Date (other than Taxes described in Section 2.04(a) above),
shall be computed on a “closing-of-the-books” basis as if such taxable period
ended as of the close of business on the Distribution Date, and, in the case
of
any Taxes of a member of the Acacia Tax Group or the CombiMatrix Tax Group
or
its business, assets or activities with respect to any equity interest in any
partnership or other “flowthrough” entity, as if the taxable period of such
partnership or other “flowthrough” entity ended on the Distribution Date; and
(ii) the Taxes of a member of the Acacia Tax Group or the CombiMatrix Tax Group
or its business, assets or activities for that portion of any Straddle Period
beginning after the Distribution Date (other than Taxes described in Section
2.04(a) above), shall be computed on a “closing-of-the-books” basis as if such
taxable period began on the day after the Distribution Date, and, in the case
of
any Taxes of a member of the Acacia Tax Group or the CombiMatrix Tax Group
or
its business, assets or activities with respect to any equity interest in any
partnership or other “flowthrough” entity, as if the taxable period of such
partnership or other “flowthrough” entity began as of the day after the
Distribution Date.
(c)
The
Taxes
of the Acacia Tax Group and the CombiMatrix Tax Group with respect to any Tax
Return for a Straddle Period which includes a member of each of the Acacia
Tax
Group and the CombiMatrix Tax Group or their respective businesses, assets
or
activities shall be allocated between the Acacia Tax Group, on the one hand,
and
the CombiMatrix Tax Group, on the other hand, determined in a manner analogous
to that set forth in Treasury Regulation Section 1.1552-1(a)(2).
ARTICLE
III
TAX
INDEMNIFICATION; TAX CONTESTS
Section
3.01
Indemnification
.
(a)
Acacia
Indemnification
.
Subject
to Section 3.01(b) and Section 3.02, Acacia shall indemnify, defend and hold
harmless each member of the CombiMatrix Tax Group and each of their respective
shareowners, directors, officers, employees and agents and each of the heirs,
executors, successors and assigns of any of the foregoing from and
against:
(i)
all
Taxes
of the Acacia Tax Group other than any Taxes for which CombiMatrix is liable
pursuant to Section 2.02(e);
(ii)
all
Taxes
of the CombiMatrix Tax Group for all Pre-Distribution Taxable Periods and all
Straddle Periods for which Acacia is liable pursuant to Section 2.02 or
3.02;
(iii)
all
liability as a result of Treasury Regulation Section 1.1502-6(a) (which imposes
several liability on members of an affiliated group that file a U.S. federal
consolidated Income Tax return) or comparable U.S. state or local provision
for
Income Taxes of any person which is or has ever been affiliated with any member
of the Acacia/CombiMatrix Tax Group or with which any member of the
Acacia/CombiMatrix Tax Group joins or has ever joined (or is or has ever been
required to join) in filing any consolidated, combined or unitary Income Tax
Return for any Tax period ending on or before or including the Distribution
Date
except to the extent the CombiMatrix Tax Group is liable for such Taxes pursuant
to Section 2.02 or 3.02;
(iv)
all
Taxes
for any Tax period (whether beginning before, on or after the Distribution
Date)
that would not have been payable but for the breach by any member of the Acacia
Tax Group of any representation, warranty, covenant or obligation under this
Agreement;
(v)
all
liability for a breach by any member of the Acacia Tax Group of any
representation, warranty, covenant or obligation under this
Agreement;
(vi)
all
Taxes
imposed in connection with the transactions contemplated by the Separation
Agreements or any other agreement entered into for the purpose of implementing
the Distribution;
(vii)
all
Taxes
for which Acacia is liable pursuant to Section 3.02; and
(viii)
all
liability for any reasonable legal, accounting, appraisal, consulting or similar
fees and expenses relating to the foregoing.
Notwithstanding
the foregoing and subject to Section 3.01(b) and Section 3.02, Acacia shall
not
indemnify, defend or hold harmless any member of the CombiMatrix Tax Group
from
any liability for Taxes attributable to any action (including the making of
an
election under Section 338 of the Code) taken by any member of the CombiMatrix
Tax Group after the Distribution (other than any such action expressly required
or otherwise expressly contemplated by the Separation Agreements or any other
agreement entered into for the purpose of implementing the Distribution or
taken
in the ordinary course of business) (a “
Post-Distribution
Tax Act
”).
(b)
CombiMatrix
Indemnification
.
CombiMatrix shall be liable for, and shall indemnify, defend and hold harmless
each member of the Acacia Tax Group and each of the respective shareowners,
directors, officers, employees and agents and each of the heirs, executors,
successors and assigns of any of the foregoing from and against:
(i)
all
Taxes
of any member of the CombiMatrix Tax Group (other than Taxes for which Acacia
provides indemnification pursuant to Section 3.01(a));
(ii)
all
Taxes
for which CombiMatrix is liable pursuant to Section 2.02(e).
(iii)
all
Taxes
for any Tax period (whether beginning before, on or after the Distribution
Date)
that would not have been payable but for the breach by any member of the
CombiMatrix Tax Group of any representation, warranty, covenant or obligation
under this Agreement;
(iv)
all
liability for a breach by any member of the CombiMatrix Tax Group of any
representation, warranty, covenant or obligation under this
Agreement;
(v)
all
Taxes
for which CombiMatrix is liable pursuant to Section 3.02;
(vi)
all
Taxes
attributable to a Post-Distribution Tax Act; and
(vii)
all
liability for any reasonable legal, accounting, appraisal, consulting or similar
fees and expenses relating to the foregoing.
Section
3.02
CombiMatrix
Tax Acts
.
(a)
Notwithstanding
Section 3.01, CombiMatrix agrees to indemnify, defend and hold harmless each
member of the Acacia Tax Group and each of the respective shareowners,
directors, officers, employees and agents and each of the heirs, executors,
successors and assigns of any of the foregoing from and against any Taxes
resulting from any CombiMatrix Tax Act. A CombiMatrix Tax Act shall mean any
action specified on Schedule 3.02(a) attached hereto.
(b)
CombiMatrix
shall, and shall cause each member of the CombiMatrix Tax Group to, comply
with
and take no action inconsistent with the CombiMatrix Tax Representation Letter,
unless, pursuant to a favorable ruling letter obtained from the IRS which is
satisfactory to Acacia or the advice of Greenberg Traurig, LLP or other
nationally recognized tax counsel to Acacia, which advice shall be satisfactory
to Acacia, such act or omission would not adversely affect the U.S. federal
Income Tax consequences of the Distribution to Acacia or the shareowners of
Acacia. Notwithstanding Sections 3.01(b)(iv), 3.01(b)(v), and 3.01(b)(vii),
the
parties intend that the sole remedy for breach of the covenants contained in
this Section 3.02(b) shall be as set forth in Section 3.02(a).
(c)
Notwithstanding
the foregoing, a CombiMatrix Tax Act shall not include any transaction or action
specifically disclosed or specifically described in any of the Separation
Agreements or, except as specifically set forth in Schedule 3.02(c) occurring
on
or prior to the Distribution Date, any action taken on or prior to the
Distribution Date. A CombiMatrix Tax Act shall not include any action on the
part of any member of the Acacia Tax Group.
Section
3.03
Notice
of Indemnity
.
Whenever a party hereto (hereinafter an “
Indemnitee
”)
becomes aware of the existence of an issue raised by any Tax Authority which
could reasonably be expected to result in a determination that would increase
the liability for any Tax of the other party hereto or any member of its Tax
Group for any Tax period or require a payment hereunder by the other party
(hereinafter an “
Indemnity
Issue
”),
the
Indemnitee shall in good faith promptly give notice to such other party
(hereinafter the “
Indemnitor
”)
of
such Indemnity Issue. The failure of the Indemnitee to give such notice shall
not relieve the Indemnitor of its obligations under this Agreement, except
to
the extent such Indemnitor or a member of its Tax Group is actually prejudiced
by such failure to give notice.
Section
3.04
Payments
.
(a)
Timing
Adjustments
.
(i)
Timing
Differences
.
If a
Tax audit proceeding or an amendment of a Tax Return results in a Timing
Difference, and such Timing Difference results in a decrease in an indemnity
obligation Acacia has or would otherwise have under Section 3.01(a) and/or
an
increase in the amount of a Tax refund or credit to which Acacia is entitled
under Section 2.03, then in each Post-Tax Indemnification Period in which the
CombiMatrix Tax Group Actually Realizes an Income Tax Detriment, Acacia shall
pay to CombiMatrix an amount equal to such Income Tax Detriment;
provided
,
however
,
that
the aggregate payments which Acacia shall be required to make under this Section
3.04(a)(i) with respect to any Timing Difference shall not exceed the aggregate
amount of the Income Tax Benefits realized by the Acacia Tax Group for all
taxable periods and the CombiMatrix Tax Group for all Tax Indemnification
Periods as a result of such Timing Difference. Acacia shall make all such
payments within ten days after CombiMatrix notifies Acacia that the relevant
Income Tax Detriment has been Actually Realized.
(ii)
Reverse
Timing Differences
.
If a
Tax audit proceeding or an amendment to a Tax Return results in a Reverse Timing
Difference, and such Reverse Timing Difference results in an increase in an
indemnity payment obligation of Acacia under Section 3.01(a) and/or a decrease
in the amount of a Tax refund or credit to which Acacia is or would otherwise
be
entitled under Section 2.03, then in each Post-Tax Indemnification Period in
which the CombiMatrix Tax Group Actually Realizes an Income Tax Benefit,
CombiMatrix shall pay to Acacia within ten days after CombiMatrix has Actually
Realized such Income Tax Benefit an amount equal to such Income Tax Benefit,
provided
,
however
,
that
the aggregate payments which CombiMatrix shall be required to make under this
Section 3.04(a)(ii) with respect to Reverse Timing Differences shall not exceed
the aggregate amount of the Income Tax Detriments realized by the CombiMatrix
Tax Group and the Acacia Tax Group for all Tax Indemnification Periods as a
result of such Reverse Timing Difference.
(b)
Time
for Payment
.
Except
as otherwise provided in this Section 3.04(b), any indemnity payment required
to
be made pursuant to this Agreement shall be paid within thirty days after the
indemnified party makes written demand upon the indemnifying party, provided
that in no event shall such payment be required to be made earlier than five
(5)
Business Days prior to the date on which the relevant Taxes (including estimated
Taxes) are required to be paid (or would be required to be paid if no such
Taxes
are due) to the relevant Tax Authority.
(c)
Payments
Net of Taxes and Tax Benefits
.
The
amount of any payment under this Agreement shall be (i) reduced to take into
account any net Tax benefit realized by the recipient’s Tax Group arising from
the incurrence or payment by such recipient’s Tax Group of any amount in respect
of which such payment is made and (ii) increased to take into account any net
Tax cost incurred by the recipient’s Tax Group as a result of the receipt or
accrual of payments hereunder (grossed-up for such increase), in each case
determined by treating the recipient as recognizing all other items of income,
gain, loss, deduction or credit before recognizing any item arising from the
receipt of accrual of any payment hereunder. Except as otherwise provided in
this Agreement or unless the parties otherwise agree to an alternative method
for determining the present value of any such anticipated Tax benefit or Tax
cost, any payment hereunder shall initially be made without regard to this
section and shall be increased or reduced to reflect any such net Tax cost
(including gross-up) or net Tax benefit only after the recipient’s Tax Group has
Actually Realized such Tax cost or Tax benefit.
(d)
Right
to Offset
.
Any
party making a payment under this Agreement shall have the right to reduce
any
such payment by any undisputed amounts owed to it by the other party to this
Agreement.
(e)
Characterization
of Payments
.
It is
the intention of the parties to this Agreement that payments made pursuant
to
this Agreement are to be treated as relating back to the Distribution as an
adjustment to capital (
i.e.
,
capital
contribution or distribution), and the parties shall not take any position
inconsistent with such intention before any Tax Authority, except to the extent
that a final determination (as defined in Section 1313 of the Code) with respect
to the recipient party causes any such payment not to be so
treated.
Section
3.05
Tax
Contests
.
The
Indemnitor and its representatives, at the Indemnitor’s expense, shall be
entitled to participate (a) in all conferences, meetings and proceedings with
any Tax Authority, the subject matter of which is or includes an Indemnity
Issue
and (b) in all appearances before any court, the subject matter of which is
or
includes an Indemnity Issue. The party who has responsibility for filing the
Tax
Return under this Agreement (the “
Responsible
Party
”)
with
respect to which there could be an increase in liability for any Tax or with
respect to which a payment could be required hereunder shall have the right
to
decide as between the parties hereto how such matter is to be dealt with and
finally resolved with the appropriate Tax Authority and shall control all audits
and similar proceedings. If no Tax Return is or was required to be filed in
respect of an Indemnity Issue, the Indemnitor shall be treated as the
Responsible Party with respect thereto. The Responsible Party agrees to
cooperate in the settlement of any Indemnity Issue with the other party and
to
take such other party’s interests into account.
ARTICLE
IV
OPTIONS;
COMPENSATION PAYMENTS;
INTEREST
CHARGE FOR LATE PAYMENTS;
CURRENCY
CALCULATIONS; EFFECTIVE TIME OF TRANSACTIONS
Section
4.01
Stock
Options; Restricted Shares
.
(a)
Stock
Option Adjustments
.
CBMX
Tracking Stock Options outstanding at the time of the Distribution will be
adjusted in accordance with the terms of the Employee Matters Agreement. Acacia
Restricted Shares outstanding at the time of the Distribution will be adjusted
in accordance with the terms of the underlying plan and award for such Acacia
Restricted Shares and the Distribution Agreement.
(b)
Tax
Deductions
.
Notwithstanding anything to the contrary in this Agreement, unless the IRS
issues a contrary private letter ruling to Acacia or CombiMatrix, or Acacia
and
CombiMatrix otherwise agree in writing, (i) the Acacia Tax Group (and not the
CombiMatrix Tax Group) shall claim any Post-Distribution Date Tax deductions
in
respect of CBMX Tracking Stock Options exercised by, or Acacia Restricted Shares
held by, Acacia Group Employees and Former Employees, (ii) the Acacia Tax Group
(and not the CombiMatrix Tax Group) shall claim any Post-Distribution Date
Tax
deductions in respect of CombiMatrix Common Stock Options exercised by, or
CombiMatrix Restricted Shares held by, Acacia Group Employees and Former
Employees and Acacia shall pay to CombiMatrix the amount received as a result
of
any Tax benefit realized in respect of such Tax deductions within ten days
after
such amount is Actually Realized by Acacia, (iii) the CombiMatrix Tax Group
(and
not the Acacia Tax Group) shall claim any Post-Distribution Date Tax deductions
in respect of CBMX Tracking Stock Options exercised by, or Acacia Restricted
Shares held by, CombiMatrix Group Employees and Former Employees and CombiMatrix
shall pay to Acacia the amount received as a result of any Tax benefit realized
in respect of such Tax deductions within ten days after such amount is Actually
Realized by CombiMatrix, and (iv) the CombiMatrix Tax Group (and not the Acacia
Tax Group) shall claim the Post-Distribution Date Tax deductions in respect
of
the CombiMatrix Common Stock Options exercised by, or CombiMatrix Restricted
Shares held by, CombiMatrix Group Employees and Former Employees.
(c)
Notices,
Withholding, Reporting
.
(i)
Acacia
shall promptly notify CombiMatrix of any post-Distribution Date event giving
rise to income to any CombiMatrix Group Employees and Former Employees in
connection with the CBMX Tracking Stock Options and Acacia Restricted Shares
and, if required by law, CombiMatrix shall withhold applicable Taxes and satisfy
applicable Tax reporting obligations in connection therewith. Acacia shall
within ten days of demand thereof reimburse CombiMatrix for all reasonable
out-of-pocket expenses incurred in connection with the CBMX Tracking Stock
Options and Acacia Restricted Shares, including with respect to incremental
Tax
reporting obligations and any incremental employment Tax obligations; provided
that CombiMatrix shall use reasonable efforts to collect any such amounts
required to be paid by CombiMatrix Group Employees and Former Employees from
such CombiMatrix Group Employees and Former Employees.
(ii)
CombiMatrix
shall promptly notify Acacia of any post-Distribution Date event giving rise
to
income to any non-CombiMatrix Group Employees and Former Employees in connection
with the CombiMatrix Common Stock Options and CombiMatrix Restricted Shares
and,
if required by law, Acacia shall withhold applicable Taxes and satisfy
applicable Tax reporting obligations in connection therewith. CombiMatrix shall
within ten days of demand thereof reimburse Acacia for all reasonable
out-of-pocket expenses incurred in connection with the CombiMatrix Common Stock
Options and CombiMatrix Restricted Shares, including with respect to incremental
Tax reporting obligations and any incremental employment Tax obligations;
provided that Acacia shall use reasonable efforts to collect any such amounts
required to be paid by non-CombiMatrix Group Employees and Former Employees
from
such non-CombiMatrix Group Employees and Former Employees.
(d)
Tax
Audit Adjustments
.
Notwithstanding the provisions of Section 4.01(b), in the event a Tax audit
proceeding shall determine (by settlement or otherwise), or the parties
otherwise determine pursuant to Section 4.03, that all or a portion of the
Tax
deductions in respect of CBMX Tracking Stock Options and Acacia Restricted
Shares or CombiMatrix Common Stock Options and CombiMatrix Restricted Shares
should have been claimed by the CombiMatrix Tax Group or the Acacia Tax Group,
respectively, the CombiMatrix Tax Group or the Acacia Tax Group, respectively,
shall claim such Tax deductions (by an amended Tax Return or otherwise) and
shall pay to Acacia or CombiMatrix, as the case may be, the amount of any Tax
refund or credit arising in respect of such Tax deduction within ten days after
such Tax refund or credit is Actually Realized by the CombiMatrix Tax Group
or
the Acacia Tax Group, as the case may be.
(e)
Status
of Directors
.
For
purposes of this Section 4.01 (except as it relates to employment and
withholding Taxes), (i) Acacia or CombiMatrix Common Stock Options and
Restricted Shares held by present or former non-employee members of the Acacia
Board of Directors shall be treated as held by present or former employees
of
Acacia, (ii) Acacia or CombiMatrix Common Stock Options and Restricted Shares
held by present or former non-employee members of the CombiMatrix Board of
Directors shall be treated as held by present or former employees of
CombiMatrix, and (iii) notwithstanding (i) or (ii) above, Acacia or CombiMatrix
Common Stock Options and Restricted Shares held by individuals who, as of the
Distribution Date, were both non-employee members of the Acacia Board of
Directors and non-employee members of the CombiMatrix Board of Directors shall
be treated as (A) employees of Acacia with respect to CBMX Tracking Stock
Options exercised by, or Acacia Restricted Shares held by, such individuals
and
(B) employees of CombiMatrix with respect to CombiMatrix Common Stock Options
exercised by, or CombiMatrix Restricted Shares held by, such
individuals.
Section
4.02
Compensation
Payments
.
(a)
Tax
Deductions
.
Notwithstanding anything to the contrary in this Agreement, unless Acacia and
CombiMatrix otherwise agree in writing, (i) the CombiMatrix Tax Group (and
not
the Acacia Tax Group) shall claim the Post-Distribution Date Tax deductions
in
respect of Compensation Payments paid by the CombiMatrix Tax Group to all other
CombiMatrix Group Employees and Former Employees, and (ii) the Acacia Tax Group
(and not the CombiMatrix Tax Group) shall claim the Post-Distribution Date
Tax
deductions in respect of Compensation Payments paid by the Acacia Tax Group
to
all other CombiMatrix Group Employees and Former Employees.
(b)
Notices,
Withholding, Reporting
.
The
party responsible for making the Compensation Payments pursuant to the Employee
Matters Agreement shall withhold applicable Taxes and satisfy applicable Tax
reporting obligations in connection with the Compensation Payments made to
all
CombiMatrix Group Employees and Former Employees.
(c)
Tax
Audit Adjustments
.
Notwithstanding the provisions of Section 4.02(a), in the event a Tax audit
proceeding shall determine (by settlement or otherwise), or the parties
otherwise determine pursuant to Section 4.03, that all or a portion of the
Tax
deductions in respect of Compensation Payments paid to CombiMatrix Group
Employees and Former Employees was not available to the party claiming the
Tax
deduction, then the appropriate party shall claim such Tax deductions (by an
amended Tax Return or otherwise) and shall pay to the party which had previously
claimed such Tax deduction, within ten days after such Tax deduction has been
Actually Realized by the such appropriate party, the amount of the resulting
Tax
benefit to such appropriate party.
Section
4.03
Change
in Law
.
Notwithstanding the agreement with respect to reporting of Tax items and the
claiming of the deductions set forth in Article 4 of this Agreement, neither
the
CombiMatrix Tax Group nor the Acacia Tax Group shall have any obligation to
report any such Tax items or claim such deductions as set forth in such Article
in the event that either such party determines, based on an opinion of
nationally recognized tax counsel, which opinion shall be satisfactory to the
other party, that there is no substantial authority to support reporting such
Tax items or claiming such deductions on a Tax Return filed by such party as
a
result of a change in or amendment to any law or regulation, or any change
in
the official interpretation thereof, effective or occurring after the date
of
this Agreement, and such Tax Group provides prompt notice to the other Tax
Group
of any such determination.
Section
4.04
Interest
Charge for Late Payments
.
Any
amount due and owing by one party to the other party pursuant to this Agreement
that is not paid when due shall bear interest from the due date thereof until
paid at a rate equal to the JPMorgan Chase Bank base rate in effect from time
to
time during such period plus 1%.
Section
4.05
Currency
Calculations
.
All
currency calculations shall be made in accordance with Section 7.09 of the
Distribution Agreement.
Section
4.06
Effective
Time of Transaction
.
Acacia
and CombiMatrix agree that any transaction that, pursuant to the Distribution
Agreement, is expressly effective immediately after the Time of Distribution
shall be treated for federal Income Tax purposes as occurring at the beginning
of the day following the Distribution Date.
ARTICLE
V
COOPERATION
AND EXCHANGE OF INFORMATION
Section
5.01
Inconsistent
Actions
.
Each
party to this Agreement agrees (i) to, and to cause each of the relevant members
of its Tax Group to, report the Distribution as a transaction described in
Section 368(a)(1)(D) of the Code on all Tax Returns and other filings, (ii)
to
use its best efforts to ensure that the Distribution receives such treatment
for
U.S. federal Income Tax purposes and (iii) that, unless it has obtained the
prior written consent of the other party, it (and the members of its Tax Group)
shall not take any action inconsistent with, or fail to take any action required
by, the Separation Agreements.
Section
5.02
Cooperation
and Exchange of Information
.
Each
party hereto agrees to provide, and to cause each member of its Tax Group to
provide, such cooperation and information as such other party shall request,
on
a timely basis, in connection with the preparation or filing of any Tax Return
or claim for Tax refund not inconsistent with this Agreement or in conducting
any Tax audit, Tax dispute, or otherwise in respect of Taxes or to carry out
the
provisions of this Agreement. To the extent necessary to carry out the purposes
of this Agreement and subject to the other provisions of this Agreement, such
cooperation and information shall include without limitation the non-exclusive
designation of an officer of Acacia as an officer of CombiMatrix and each of
its
affiliates (for the purpose of signing Tax Returns, cashing refund checks,
pursuing refund claims, dealing with Tax Authorities and defending audits);
promptly forwarding to the other party, where relevant, copies of appropriate
notices and forms or other communications received from or sent to any Tax
Authority which relate to the Tax Indemnification Period; providing copies
of
all relevant Tax Returns for the Tax Indemnification Period, together with
accompanying schedules and related workpapers, documents relating to rulings
or
other determinations by Tax Authorities, including without limitation, foreign
Tax Authorities, and records concerning the ownership and Tax basis of property,
which either party may possess; and making its employees involved in the
research and development process available to the other party and having such
employees provide such assistance as the other party may require for such
purposes, provided, however, that neither party shall be obligated to provide
the other party Tax Returns, documentation or other information of a proprietary
or confidential nature for purposes of verifying any calculation, and provided
further, that in any such case where one party does not provide the other party
with Tax Returns, documentation or information because it is proprietary or
confidential, both parties shall cooperate in developing mutually acceptable
procedures including retaining a mutually agreeable accounting firm to review
such Tax Returns, documentation or information for purposes of verifying such
calculation. Subject to the rights of the CombiMatrix Tax Group under the other
provisions of this Agreement, such officer shall have the authority to execute
powers of attorney (including Form 2848) on behalf of each member of the
CombiMatrix Tax Group with respect to Tax Returns for the Tax Indemnification
Period. Each party to this Agreement shall make, or shall cause its affiliates
to make, its employees and facilities available on a mutually convenient basis
to provide an explanation of any documents or information provided
hereunder.
Section
5.03
Tax
Records
.
(a)
Acacia
and CombiMatrix agree to (and to cause each member of their respective Tax
Group
to) (i) retain all Tax Returns, related schedules and workpapers, and all
material records and other documents as required under Section 6001 of the
Code
and the regulations promulgated thereunder relating thereto existing on the
date
hereof or created through the Distribution Date, for a period of at least ten
years following the Distribution Date and (ii) allow the party to this
Agreement, at times and dates reasonably acceptable to the retaining party,
to
inspect, review and make copies of such records, as Acacia and CombiMatrix
may
reasonably deem necessary or appropriate from time to time. In addition, after
the expiration of such ten-year period, such Tax Returns, related schedules
and
workpapers, and material records shall not be destroyed or otherwise disposed
of
at any time, unless, prior to such destruction or disposal, (A) the party
proposing to destroy or otherwise dispose of such records shall provide no
less
than 30 days’ prior written notice to the other party, specifying in reasonable
detail the records proposed to be destroyed or disposed of and (B) if a
recipient of such notice shall request in writing prior to the scheduled date
for such destruction or disposal that any of the records proposed to be
destroyed or disposed of be delivered to such requesting party, the party
proposing the destruction or disposal shall promptly arrange for the delivery
of
such requested records at the expense of the party requesting such
records.
(b)
Notwithstanding
anything in this Agreement to the contrary, if any party fails to comply with
the requirements of Section 5.05(a) hereof, the party failing so to comply
shall
be liable for, and shall hold the other party, harmless from, any Taxes
(including without limitation, penalties for failure to comply with the record
retention requirements of the Code) and other costs resulting from such party’s
failure to comply.
ARTICLE
VI
MISCELLANEOUS
Section
6.01
Entire
Agreement; Construction
.
This
Agreement, the Distribution Agreement, the other Separation Agreements,
including any annexes, schedules and exhibits hereto or thereto, and other
agreements and documents referred to herein and therein, will together
constitute the entire agreement between the parties with respect to the subject
matter hereof and thereof and will supersede all prior negotiations, agreements
and understandings of the parties of any nature, whether oral or written, with
respect to such subject matter. Notwithstanding any other provisions in the
Separation Agreements to the contrary, in the event and to the extent that
there
is a conflict relating to Taxes between the provisions of this Agreement and
the
provisions of the Distribution Agreement or any other Separation Agreement,
the
provisions of this Agreement will control.
Section
6.02
Effectiveness
.
All
covenants and agreements of the parties contained in this Agreement shall be
subject to and conditioned upon the Distribution becoming
effective.
Section
6.03
Survival
of Agreements
.
Except
as otherwise contemplated by the Separation Agreements, all covenants and
agreements of the parties contained in this Agreement will remain in full force
and effect and survive the Time of Distribution.
Section
6.04
Governing
Law
.
This
Agreement will be governed by and construed in accordance with the internal
laws
of the State of Delaware applicable to contracts made and to be performed
entirely within such State, without regard to the conflicts of law principles
of
such State.
Section
6.05
Notices
.
All
notices, requests, claims, demands and other communications required or
permitted to be given hereunder will be in writing and will be delivered by
hand, telecopied, e-mailed or sent, postage prepaid, by registered, certified
or
express mail or reputable overnight courier service and will be deemed given
when so delivered by hand or telecopied, when e-mail confirmation is received
if
delivered by e-mail, or three (3) Business Days after being so mailed (one
(1)
Business Day in the case of express mail or overnight courier service). All
such
notices, requests, claims, demands and other communications will be addressed
as
set forth in Section 7.04 of the Distribution Agreement, or pursuant to such
other instructions as may be designated in writing by the party to receive
such
notice.
Section
6.06
Amendments
.
This
Agreement may not be amended, modified or supplemented except by a written
agreement executed by Acacia and CombiMatrix.
Section
6.07
Successors
and Assigns
.
Neither
party to this Agreement will convey, assign or otherwise transfer any of its
rights or obligations under this Agreement without the prior written consent
of
the other party in its sole and absolute discretion other than as expressly
provided herein, any party may (without obtaining any consent) assign any of
its
rights hereunder to a successor to all or any part of its business. Any such
conveyance, assignment or transfer requiring the prior written consent of
another party which is made without such consent will be void
ab
initio
.
No
assignment of this Agreement will relieve the assigning party of its obligations
hereunder.
Section
6.08
Captions;
Currency
.
The
article, section and paragraph captions herein and the table of contents hereto
are for convenience of reference only, do not constitute part of this Agreement
and will not be deemed to limit or otherwise affect any of the provisions
hereof. Unless otherwise specified, all references herein to numbered articles
or sections are to articles and sections of this Agreement and all references
herein to schedules are to schedules to this Agreement. Unless otherwise
specified, all references contained in this Agreement or in any schedule
referred to herein to dollars or “$” shall mean U.S. dollars.
Section
6.09
Severability
.
If any
provision of this Agreement or the application thereof to any person or
circumstance is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof, or the application
of
such provision to persons or circumstances other than those as to which it
has
been held invalid or unenforceable, will remain in full force and effect and
will in no way be affected, impaired or invalidated thereby. If the economic
or
legal substance of the transactions contemplated hereby is affected in any
manner adverse to any party as a result thereof, the parties will negotiate
in
good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
Section
6.10
Parties
in Interest
.
Except
for the provisions of Article III relating to Tax Indemnification, this
Agreement is solely for the benefit of the parties hereto and the respective
members of their Tax Group and should not be deemed to confer upon third parties
(including any employee of Acacia or CombiMatrix or of any Acacia or CombiMatrix
subsidiary) any remedy, claim, reimbursement, claim of action or other right
in
excess of those existing without reference to this Agreement.
Section
6.11
Schedules
.
All
schedules attached hereto are hereby incorporated in and made a part of this
Agreement as if set forth in full herein. Capitalized terms used in the
schedules hereto but not otherwise defined therein will have the respective
meanings assigned to such terms in this Agreement.
Section
6.12
Termination
.
This
Agreement may be terminated and the Distribution abandoned at any time prior
to
the Distribution Date by and in the sole discretion of the Acacia Board without
the approval of CombiMatrix or Acacia’s shareowners. In the event of such
termination, neither party will have any liability of any kind to the other
party on account of such termination.
Section
6.13
Waivers;
Remedies
.
No
failure or delay by any party hereto in exercising any right, power or privilege
hereunder will operate as a waiver thereof, nor will any waiver on the part
of
any party hereto of any right, power or privilege hereunder operate as a waiver
of any other right, power or privilege hereunder, nor will any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder. Subject to Section 6.17, the rights and remedies herein provided
are
cumulative and are not exclusive of any rights or remedies which the parties
may
otherwise have at law or in equity.
Section
6.14
Counterparts
.
This
Agreement may be executed in separate counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts will together
constitute the same agreement. This Agreement may be executed and delivered
by
telecopier with the same force and effect as if it were a manually executed
and
delivered counterpart.
Section
6.15
Performance
.
Each
party hereto will cause to be performed, and hereby guarantees the performance
of all actions, agreements and obligations set forth herein to be performed
by
any subsidiary or any member of such party’s Tax Group.
Section
6.16
Interpretation
.
Any
reference to any federal, state, local, or foreign law shall be deemed also
to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. For the purposes of this Agreement, (i) words in the
singular shall be held to include the plural and
vice
versa
and
words of one gender shall be held to include the other gender as the context
requires, (ii) the terms “hereof”, “herein”, and “herewith” and words of similar
import shall, unless otherwise stated, be construed to refer to this Agreement
as a whole and not to any particular provision of this Agreement and (iii)
the
word “including” and words of similar import when used in this Agreement shall
mean “including, without limitation”.
Section
6.17
Dispute
Resolution
.
Any
dispute, claim or controversy arising out of or relating to any provision of
this Agreement or the breach, performance or validity thereof will be resolved
in accordance with the procedures set forth in Section 7.05 of the Distribution
Agreement.
[Signature
Page to Tax Allocation Agreement]
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly
authorized officers of the parties as of the date first hereinabove
written.
|
ACACIA
RESEARCH CORPORATION
By:
/s/ Paul
Ryan
Name:
Paul
Ryan
Title:
President
and Chairman of Board
|
|
COMBIMATRIX
CORPORATION
By:
/s/ Amit
Kumar
Name:
Amit
Kumar
Title:
President
|
Schedule
1.01
CombiMatrix
Tax Group, Members
Existing
Companies
|
Country
|
1.
CombiMatrix Corporation
|
US
|
2.
CombiMatrix K.K.
|
Japan
|
3.
Advanced Material Sciences
|
US
|
4.
CombiMatrix Molecular Diagnostics, Inc.
|
US
|
5.
CombiMatrix International Holding Corporation
|
US
|
6.
Leuchemix, Inc.
|
US
|
Schedule
2.01(f)
Tax
Returns To Be Filed By Non-Responsible Party
None
Schedule
3.02(a)
CombiMatrix
Tax Act
The
actions which shall constitute a “
CombiMatrix
Tax Act
”
shall
mean:
§ 355
Split-off Reorganization of CombiMatrix
|
--
|
The
failure of CombiMatrix to directly continue the active conduct of
the
historic businesses conducted throughout the five-year period prior
to the
Distribution Date using its employees and/or those of its subsidiaries
to
perform active and substantial management and operational
functions.
|
|
--
|
The
consummation of any transaction or transactions (including making
any
change in equity structure (in terms of either value or voting power),
or
transactions pursuant to any agreement, understanding, arrangement
or
substantial negotiations of any member of the Acacia Tax Group or
any
member of the CombiMatrix Tax Group occurring prior to, on or after
the
Distribution) pursuant to which one or more persons acquire directly
or
indirectly stock possessing 50% or more of the total combined voting
power
of all classes of stock of CombiMatrix (or any successor thereto)
entitled
to vote or stock possessing 50% or more of the total value of all
classes
of stock of CombiMatrix (or are treated as acquiring such interest
pursuant to Section 355(e) as a result of the acquisition of assets
of
CombiMatrix or otherwise) taking into account as may be relevant
under
Section 355(e) acquisitions of stock of Acacia or CombiMatrix (or
any
successor thereto) occurring prior to, on or after the
Distribution.
|
|
--
|
The
liquidation or partial liquidation of CombiMatrix, the merger into
or
consolidation with any corporation, or the sale or other disposition
of
the assets of CombiMatrix, other than (i) sales or dispositions in
the
ordinary course of business or (ii) transactions described in Section
368(a)(2)(C) of the Code.
|
|
--
|
The
failure of the Distribution to qualify as a Code Section 368(a)(1)(D)
split-off reorganization because of a transfer of assets held by
CombiMatrix to an affiliate in a transaction described in Section
351 or
Section 118 of the Code.
|
|
--
|
The
failure of CombiMatrix to satisfy the “active trade or business” test of
Section 355(b) of the Code.
|
|
--
|
The
failure of the distribution of the stock of CombiMatrix to satisfy
the
Code Section 355 “control” requirement because of negotiations, agreements
or arrangements prior to the Distribution that are associated with
a
post-Distribution event.
|
|
--
|
Any
act or conduct undertaken by CombiMatrix or any member of the CombiMatrix
Tax Group which causes the Distribution to be taxable to Acacia or
any
member of the Acacia Tax Group.
|
Schedule
3.02(b)
CombiMatrix
Tax Representation Letter
CombiMatrix
Corporation
6500
Harbour Heights Parkway
Suite
301
Mukilteo,
WA 98275
December
[__], 2006
Acacia
Research Corporation
500
Newport Center Dr., 7th Floor
Newport
Beach, CA 92660
Dear
Sirs:
In
connection with the proposed Distribution, as that term is defined and described
in the Distribution Agreement dated as of December [___], 2006 (the
“Distribution Agreement”), between Acacia Research Corporation., a Delaware
corporation (“Acacia”), and CombiMatrix Corporation, a Delaware corporation and
a wholly owned subsidiary of Acacia (“CombiMatrix”), Greenberg Traurig, LLP
(“GT”) will render its opinion (“Opinion”) with respect to certain United States
federal income tax consequences of the Distribution. In connection with the
issuance of the Opinion, GT has requested from Acacia, and Acacia has agreed
to
provide to GT, certain representations and warranties concerning CombiMatrix
and
the Distribution (“Acacia Tax Representations”). Acacia, in turn, has requested
from CombiMatrix certain representation and warranties to enable Acacia to
provide the Acacia Tax Representations.
Accordingly,
the undersigned officer of CombiMatrix hereby represents and certifies to
Acacia, after due inquiry and investigation, that the facts which are described
herein are true, correct and complete in all material respects, and further
certifies as follows (capitalized terms used herein and not otherwise defined
herein shall have the respective meanings attributed thereto in the Tax
Allocation Agreement, dated as of December [___], 2006 (the “Tax Allocation
Agreement”) between Acacia and CombiMatrix):
1.
CombiMatrix
was incorporated in California in 1995, reincorporated in Delaware in 2000,
and
reorganized on December 13, 2002, as the result of a forward triangular tax-free
merger into a wholly-owned subsidiary of Acacia. CombiMatrix files its federal
income tax returns on a December 31 year basis.
2.
Immediately
prior to the Distribution, CombiMatrix will have outstanding one class of stock,
the CombiMatrix Common Stock, all of which will be owned by Acacia.
3.
To
the
best of CombiMatrix’s knowledge, CombiMatrix has not been a United States real
property holding corporation, as defined in Section 897(c)(2) of the Code,
at
any time during the five-year period ending on the date of the Distribution,
and
CombiMatrix will not be a United States real property holding corporation
immediately after the Distribution.
4.
To
the
best of CombiMatrix’s knowledge, there are no planned or intended stock
issuances, redemptions or dispositions of the stock of CombiMatrix aside from
(i) any necessary recapitalization of CombiMatrix Common Stock prior to the
Distribution so that the number of outstanding shares of CombiMatrix Common
Stock are equal to the number of outstanding shares of Acacia
Research--CombiMatrix common stock (the “Tracking Stock”), (ii) the payment
of cash in lieu of fractional shares in the Distribution, (iii) the
issuance of any CombiMatrix Common Stock in connection with various benefit
plans or upon the exercise of any warrants (described in 10 below), and
(iv) the issuance of shares in a financing that is not part of a plan or
series of related transactions pursuant to which one or more persons will
acquire, directly or indirectly, a 50% or greater interest (measured by either
vote or value) in CombiMatrix. The payment of cash in lieu of fractional
shares of CombiMatrix is solely for the purposes of avoiding the expense and
inconvenience to CombiMatrix of issuing fractional shares and does not represent
separately bargained-for consideration. The method used for handling fractional
share interests is designed to limit the amount of cash received by any one
shareholder to less than the value of one full share of CombiMatrix Common
Stock.
5.
Acacia
has maintained “control” of CombiMatrix within the meaning of Sections
368(a)(1)(D) and 368(c) of the Code since December 13, 2002. Taking into account
the CombiMatrix fractional shares, as described above, Acacia’s shareholders
will be in “control” of CombiMatrix immediately after the
Distribution.
6.
The
fair
market value of the CombiMatrix Common Stock and other consideration to be
received by each shareholder of Acacia will be approximately equal to the fair
market value of the CombiMatrix Tracking Stock surrendered by the shareholders
in the exchange.
7.
Immediately
prior to the Distribution, Acacia will recapitalize CombiMatrix so that the
number of outstanding shares of CombiMatrix Common Stock are equal to the number
of outstanding shares of CombiMatrix Tracking Stock.
8.
CombiMatrix
will not have any debt (long-term or short-term) owed to unrelated third party
creditors at the time of the Distribution.
9.
Any
intercompany debt owed by CombiMatrix and its subsidiaries to Acacia and its
subsidiaries will be settled and eliminated. No intercompany debt will exist
between the Acacia Tax Group and the CombiMatrix Tax Group immediately after
the
Distribution other than (1) intercompany debt that will be repaid in connection
with the Distribution and (ii) certain obligations pursuant to the Distribution
Agreement.
10.
At
the
time of Distribution, CombiMatrix will issue to the persons specified on
Schedule
1
,
warrants to purchase a number of shares of CombiMatrix Common Stock
(“CombiMatrix Warrant”), in respect of a warrant currently held by such persons
to purchase the number of shares of CombiMatrix Tracking Stock (“AR-CBMX
Warrant”). At the time of the Distribution, the AR-CBMX Warrant will be adjusted
to become, in addition to the AR-CBMX Warrant, the CombiMatrix Warrant. The
exercise prices of the CombiMatrix Warrant and the AR-CBMX Warrant and the
number of shares subject to such warrants will be adjusted using a formula
that
will ensure that (1) the aggregate intrinsic values of the warrants
immediately before and after the Distribution are the same, (2) the ratio
of the exercise price per warrant to the market value per share is the same
immediately before and after the Distribution, and (3) the vesting
provisions and exercise period of the CombiMatrix Warrant are the same as the
original vesting provisions and exercise period of the AR-CBMX
Warrant.
11.
None
of
the CombiMatrix Warrants should be considered a stock interest.
12.
Aside
from the CombiMatrix Common Stock outstanding at the time of the Distribution,
CombiMatrix will have no stock interests outstanding at the time of the
Distribution.
13.
None
of
the shareholders of Acacia will receive debt securities of CombiMatrix in the
Distribution.
14.
Acacia
has no debt security holders. No debt securities are to be exchanged in the
Distribution.
15.
The
stock
options to be issued by CombiMatrix as compensation to employees, directors
and/or independent contractors (i) will contain customary terms and
conditions, (ii) will be granted in connection with the performance of
services for CombiMatrix or a person related to the grantor under section
355(d)(7)(A) of the Code, (iii) will not be excessive by reference to the
services performed, (iv) will be nontransferable within the meaning of
Treasury Regulation Section 1.83-3(d) immediately after the Distribution or
within six months thereafter, and (v) will not have a readily ascertainable
fair market value as defined in Treasury Regulation Section 1.83-7(b)
immediately after the Distribution and within six months
thereafter.
16.
For
each
of the past five years, (a) CombiMatrix has directly conducted the
CombiMatrix Business, and (b) the CombiMatrix Business has had gross
receipts and operating expenses representative of the active conduct of a trade
or business, and, in this connection, has had employees performing active and
substantial management and operational functions. There have been no substantial
operational changes to the CombiMatrix Business since August 30, 2006, the
date
Internal Revenue Service issued a Private Letter Ruling to Acacia regarding
the
Distribution, a copy of which is attached as
Exhibit
1
hereto.
17.
The
employee payroll expense, headcount information and description of employees’
titles, functions and types of duties set forth in
Exhibit
2
attached
hereto and relating to the CombiMatrix Business are true, correct and complete
in all material respects.
18.
There
has
not been a substantial change in the type of business conducted or the method
of
conducting the CombiMatrix Business during the five-year period ending on the
date hereof.
19.
The
assets and businesses which were acquired within the past five (5) years in
taxable transactions, do not form part of the assets and businesses upon which
CombiMatrix or any of its businesses relies to satisfy the active conduct of
a
trade or business test set forth in Section 355(b)(2).
20.
None
of
the real property, intellectual property, or other intangible property
historically occupied or used by the CombiMatrix Business will be separated
in
the transaction from its business.
21.
The
gross
assets of the CombiMatrix Business trade or business to be directly conducted
by
CombiMatrix and relied upon by CombiMatrix to satisfy the active trade or
business requirement of Section 355(b) will have a fair market value that is
five percent (5%) or more of the total fair market value of the gross assets
of
CombiMatrix immediately following the Distribution.
22.
Following
the Distribution, Acacia and CombiMatrix will each continue the active conduct
of its business, independently and with its separate employees. Additionally,
following the Distribution, neither Acacia nor CombiMatrix will share the
services of any employees, and there are no planned or intended substantial
reductions in business activity for any active business.
23.
Payments,
if any, made in connection with all continuing transactions between Acacia
and
CombiMatrix (or any of their affiliates) after the Distribution will be for
fair
market value based on terms and conditions arrived at by the parties bargaining
at arm’s length.
24.
CombiMatrix
has no plan or intention not to continue, and during the one-year period
following the Distribution will continue, the active conduct of its businesses,
as constituted immediately after the Distribution, independently and with its
separate employees, and it will use a significant portion of its business assets
as so constituted in such businesses.
25.
CombiMatrix
is not an investment company within the meaning the Section 368(a)(2)(F)(iii)
and (iv) of the Code.
26.
CombiMatrix
has no plan or intention to, and will not during the one-year period following
the Distribution, liquidate, merge with any other corporation or sell or
otherwise dispose of any of its historic assets or businesses subsequent to
the
Distribution, except for (a) sales or dispositions in the ordinary course
of business, (b) transactions described in Section 368(a)(2)(C) of the
Code, or (c) sales or other dispositions of assets of such corporation
having a gross fair market value (determined based on disposition proceeds,
including the assumption of debt) that in the aggregate does not exceed fifty
percent (50%) of the total fair market value of such company’s
assets.
27.
At
the
time of the Distribution, CombiMatrix will not have outstanding any warrants,
options, convertible securities, or any other type of right pursuant to which
any person could acquire stock in CombiMatrix, except for certain employee
stock
options and the AR-CBMX Warrants.
28.
CombiMatrix
has no plan or intention to, and for a period of one (1) year following the
Distribution will not, transfer or cause to be transferred any assets held
by
CombiMatrix to an affiliate in a transaction described in Section 351 or Section
118 of the Code.
29.
The
Distribution transaction is not used principally as a device for the
distribution of the earnings and profits of Acacia or CombiMatrix or
both.
30.
For
purposes of Section 355(d), immediately after the Distribution, no person
(determined after applying Section 355(d)(7)) will hold stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of
CombiMatrix stock entitled to vote, or fifty percent (50%) or more of the total
value of shares of all classes of CombiMatrix stock, that was acquired by
purchase (as defined in Sections 355(d)(5) and (8)) during the five-year period
(determined after applying Section 355(d)(6)) ending on the date of the
Distribution.
31.
The
Distribution is not part of a plan or series of related transactions (within
the
meaning of Section 1.355-7T) pursuant to which one or more persons will acquire,
directly or indirectly, stock possessing a 50-percent or greater interest
(within the meaning of Section 355(d)(4)) in Acacia or CombiMatrix (including
any predecessor or successor of any such corporation).
32.
During
the two (2)-year period beginning on the Distribution Date, CombiMatrix will
not
engage in any transaction or transactions which is part of a plan (or series
of
related transactions) related to the Distribution pursuant to which one or
more
persons acquire directly or indirectly stock representing a fifty percent (50%)
or greater interest in CombiMatrix or will be treated as acquiring such interest
pursuant to Section 355(e) as a result of the acquisition of assets of
CombiMatrix or otherwise, all within the meaning of Section 355(e).
IN
WITNESS WHEREOF, I have, on behalf of the Company, executed this CombiMatrix
Tax
Representation Letter this December [___], 2006.
|
/s/ Amit
Kumar
Amit Kumar
President and Chief Executive
Officer
|
Schedule
3.02(c)
Pre-Distribution
Tax-Free Transactions
Contribution
of stock of CombiMatrix K.K. by Acacia to CombiMatrix Corporation. Contribution
of stock of Advanced Material Sciences by Acacia to CombiMatrix
Corporation.
EXHIBIT 10.2
DISTRIBUTION
AGREEMENT
by
and between
ACACIA
RESEARCH CORPORATION
and
COMBIMATRIX
CORPORATION
December
21, 2006
TABLE
OF CONTENTS
Article I DEFINITIONS
|
|
Page
|
Section 1.01
|
General
|
|
1
|
Article II THE
CONTRIBUTION
|
|
1
|
Section 2.01
|
Intercorporate
Reorganization
|
14
|
Section 2.02
|
Financial Instruments
|
16
|
Section 2.03
|
Intercompany Accounts and
Arrangements
|
17
|
Section 2.04
|
The CombiMatrix Board
|
18
|
Section 2.05
|
Resignations, Transfer of
Stock
Held as Nominee
|
19
|
Section 2.06
|
CombiMatrix Certificate
of
Incorporation and Bylaws
|
19
|
Section 2.07
|
Consents
|
|
19
|
Article III THE
DISTRIBUTION
|
|
20
|
Section 3.01
|
The Distribution
|
|
20
|
Section 3.02
|
Fractional Shares
|
|
21
|
Section 3.03
|
Cooperation Prior to the
Distribution
|
21
|
Section 3.04
|
Acacia Board Action Conditions
to
the Distribution
|
22
|
Section 3.05
|
Waiver of Conditions
|
23
|
Article IV MUTUAL RELEASE;
INDEMNIFICATION; EXPENSES
|
23
|
Section 4.01
|
Mutual Release
|
|
23
|
Section 4.02
|
Indemnification by Acacia
|
24
|
Section 4.03
|
Indemnification by
CombiMatrix
|
24
|
Section 4.04
|
Limitations on Indemnification
Obligations
|
25
|
Section 4.05
|
Procedures Relating to
Indemnification
|
26
|
Section 4.06
|
Remedies Cumulative
|
27
|
Section 4.07
|
Indemnification Under Tax
Allocation Agreement
|
28
|
Section 4.08
|
Expenses
|
|
28
|
Article V CERTAIN OTHER
MATTERS
|
29
|
Section 5.01
|
Insurance
|
|
29
|
Section 5.02
|
Use of Names, Trademarks,
etc.
|
31
|
Section 5.03
|
CombiMatrix Warrants
|
32
|
Article VI ACCESS TO
INFORMATION
|
33
|
Section 6.01
|
Provision of Corporate
Records
|
33
|
Section 6.02
|
Access to Information
|
33
|
Section 6.03
|
Production of Witnesses
|
34
|
Section 6.04
|
Retention of Records
|
34
|
Section 6.05
|
Confidentiality
|
|
35
|
Article VII MISCELLANEOUS
|
35
|
Section 7.01
|
Entire Agreement;
Construction
|
35
|
Section 7.02
|
Survival of Agreements
|
36
|
Section 7.03
|
Governing Law
|
|
36
|
Section 7.04
|
Notices
|
|
36
|
Section 7.05
|
Dispute Resolution
|
37
|
Section 7.06
|
Consent to Jurisdiction
|
37
|
Section 7.07
|
Amendments
|
|
38
|
Section 7.08
|
Assignment
|
|
38
|
Section 7.09
|
Captions; Currency
|
38
|
Section 7.10
|
Severability
|
|
|
Section 7.11
|
Parties in Interest
|
|
39
|
Section 7.12
|
Schedules
|
|
39
|
Section 7.13
|
Termination
|
|
39
|
Section 7.14
|
Waivers; Remedies
|
39
|
Section 7.15
|
Further Assurances
|
39
|
Section 7.16
|
Counterparts
|
|
39
|
Section 7.17
|
Performance
|
|
40
|
Section 7.18
|
Interpretation
|
|
40
|
|
|
|
SCHEDULES
Schedule
1.01(a)
|
|
Acacia
Liabilities
|
Schedule
1.01(b)
|
-
|
Bylaws
|
Schedule
1.01(c)
|
-
|
Certificate
of Incorporation
|
Schedule
1.01(d)
|
-
|
CombiMatrix
Assets
|
Schedule
1.01(e)
|
-
|
CombiMatrix
Liabilities
|
Schedule
1.01(f)
|
-
|
CombiMatrix
Real Property
|
Schedule
1.01(g)
|
-
|
CombiMatrix
Subsidiary
|
Schedule
2.01(c)
|
-
|
Acacia
Actions
|
Schedule
2.03(a)
|
-
|
Elimination
of Intercompany Agreements
|
Schedule
2.03(b)
|
-
|
Intercompany
Agreements
|
Schedule
2.04
|
-
|
CombiMatrix
Board of Directors
|
Schedule
2.05
|
-
|
Exceptions
to Acacia Resignations
|
Schedule
5.03(a)
|
-
|
CombiMatrix/May
2003 Warrant
|
Schedule
5.03(b)
|
-
|
CombiMatrix/Piper
2005 Warrant
|
Schedule
5.03(c)
|
-
|
CombiMatrix/Oppenheimer
Warrant
|
DISTRIBUTION
AGREEMENT
This
Distribution Agreement
(this
“
Agreement
”)
is
made and entered into as of December 21, 2006, by and between
Acacia
Research Corporation
,
a
Delaware corporation (“
Acacia
”),
and
CombiMatrix
Corporation
,
a
Delaware corporation and, as of the date hereof, a wholly-owned subsidiary
of
Acacia (“
CombiMatrix
”).
Capitalized terms used in this Agreement shall have the meanings set forth
in
Section 1.01.
RECITALS
A.
The
Acacia Board has determined that it is appropriate and desirable to distribute
all outstanding shares of CombiMatrix Common Stock on a pro rata basis to the
holders of CombiMatrix Tracking Stock.
B.
Subject
to the terms and conditions contained herein, immediately prior to the
Distribution, Acacia and the Acacia Subsidiaries will transfer the CombiMatrix
Subsidiaries to CombiMatrix as more fully described in this Agreement (the
“
Contribution
”).
C.
Acacia
and CombiMatrix have determined that it is appropriate and desirable to set
forth the principal corporate transactions required to effect the Contribution
and the Distribution and certain other agreements that will govern certain
matters relating to the Contribution and the Distribution and the relationship
of Acacia, CombiMatrix and the respective members of the Acacia Group and the
CombiMatrix Group following the Contribution and the Distribution.
AGREEMENT
Accordingly
,
in
consideration of the premises and of the respective agreements and covenants
contained in this Agreement, the parties hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01
General
.
As used
in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of
the
terms defined):
“
Acacia
”
shall
have the meaning set forth in the preamble.
“
Acacia
Assets
”
means
the following:
(a)
all
rights of any member of the Acacia Group under any Separation Agreement to
which
it is or becomes a party;
(b)
all
Assets which are expressly allocated to any member of the Acacia Group pursuant
to the Employee Matters Agreement or the Tax Allocation Agreement;
(c)
the
following specifically enumerated Assets which immediately prior to the Time
of
Distribution are owned by Acacia or any of its Subsidiaries (including Persons
comprising the CombiMatrix Group), in each case whether or not such Assets
are
used in or relate to the Acacia Business or the CombiMatrix
Business:
(i)
all
Acacia Bank Accounts;
(ii)
all
Acacia Cash;
(iii)
all
Accounts Receivable other than CombiMatrix Accounts Receivable;
(iv)
all
Inventories other than CombiMatrix Inventories;
(v)
all
Securities;
(vi)
all
Machinery and Equipment other than CombiMatrix Machinery and
Equipment;
(vii)
all
Real
Property other than CombiMatrix Real Property;
(viii)
all
Patents and Trademarks other than those set forth on Schedule
1.01(d);
(ix)
all
rights in, and to the use of, the Acacia Marks, other than as provided for
in
Section 5.02;
(x)
all
Policies and all rights, benefits and privileges thereunder and related thereto
(including the right to receive any and all return premiums with respect
thereto), other than rights with respect to Policies to the extent provided
in
Sections 5.01(b) and 5.01(c); and
(d)
all
other
Assets which immediately prior to the Time of Distribution are owned by Acacia
or any of its Subsidiaries (including Persons comprising the CombiMatrix Group)
that are not CombiMatrix Assets; and
(e)
all
rights, causes of action and claims of Acacia or any of its Subsidiaries
(including Persons comprising the CombiMatrix Group) to the extent relating
to
any asset described in clauses (a) through (d) above.
Anything
contained herein to the contrary notwithstanding, assets described in paragraphs
(b) and (c) of the definition of “CombiMatrix Assets” will not be included in
Acacia Assets.
“
Acacia
Bank Accounts
”
means
all bank accounts of Acacia or any of its Subsidiaries (including Persons
comprising the CombiMatrix Group) immediately prior to the Time of Distribution,
other than CombiMatrix Bank Accounts.
“
Acacia
Board
”
means
the Board of Directors of Acacia or a duly authorized committee
thereof.
“
Acacia
Business
”
means
(a) the businesses and operations engaged in prior to the Time of
Distribution by Persons comprising the Pre-Distribution Group (but with respect
to each such Person who has ceased to be an Affiliate of Acacia or its
predecessors, only businesses engaged in prior to the time that such Person
comprising the Pre-Distribution Group ceased to be an Affiliate of Acacia or
its
predecessors) of acquiring, developing, licensing and enforcing patents rights,
including (i) assisting patent holders in developing additional claims for
their patents, (ii) assisting patent holders in protecting their patented
inventions from unauthorized use, and (iii) generating revenue from the
licensing of patents and, if necessary, enforcing patents; and
(b) activities related primarily to the foregoing, other than any
businesses, operations or activities included in the CombiMatrix
Business.
“
Acacia
Cash
”
means
all (i) cash (including cash in bank accounts), cash on hand, cash equivalents,
funds, certificates of deposit, similar instruments and travelers checks held
by
Acacia or any of its Subsidiaries and Affiliates (including Persons comprising
the CombiMatrix Group) immediately prior to the Time of Distribution and (ii)
cash deposits held by third parties securing or otherwise collateralizing
obligations of Acacia or any of its Subsidiaries or Affiliates (including
Persons comprising CombiMatrix Group) immediately prior to the Time of
Distribution, other than, in the case of each of the foregoing clauses (i)
and
(ii), CombiMatrix Cash.
“
Acacia
Expenses
”
means
all out-of-pocket fees, costs and expenses of Acacia or any of its Subsidiaries
(including Persons comprising the CombiMatrix Group) incurred prior to the
Time
of Distribution in connection with effecting the Contribution, the Distribution,
the preparation, execution and delivery of the Separation Agreements and the
consummation of the Contribution and the Distribution, other than CombiMatrix
Expenses.
“
Acacia
Group
”
means
Acacia and the Acacia Subsidiaries.
“
Acacia
Indemnitees
”
mean
each member of the Acacia Group and each of their respective Representatives
and
Affiliates and each of the heirs, executors, successors and permitted assigns
of
any of the foregoing.
“
Acacia
Liabilities
”
means
the following:
(a)
all
Liabilities of any member of the Acacia Group under any Separation Agreement
to
which it is or becomes a party;
(b)
all
Liabilities for which any member of the Acacia Group is expressly made
responsible pursuant to the Employee Matters Agreement or the Tax Allocation
Agreement;
(c)
the
specifically enumerated Liabilities of Acacia or any of its Subsidiaries
(including Persons comprising the CombiMatrix Group) identified on Schedule
1.01(a), in each case whether or not such Liabilities relate to the Acacia
Business, Acacia Assets, the CombiMatrix Business or CombiMatrix
Assets:
(d)
all
other
Liabilities of Acacia or any of its Subsidiaries (including Persons comprising
the CombiMatrix Group) in respect of operations engaged in prior to the Time
of
Distribution that are not CombiMatrix Liabilities.
Anything
contained herein to the contrary notwithstanding, Liabilities described in
paragraphs (b) and (c) of the definition of “CombiMatrix Liabilities” will not
be included in Acacia Liabilities.
“
Acacia
Marks
”
means
the names, trademarks, trade names, domain names and service marks “Acacia”,
“Acacia Research Corporation”, Digital Media Technology”, “Digital Media” and
“DMT” and all corporate symbols and logos related thereto and all names,
trademarks, trade names, domain names and service marks which include the words
“Acacia”, “Acacia Research Corporation”, “Digital Media Technology” and “DMT” or
any derivatives thereof and any other name, mark or symbol of the Acacia Group,
including, without limitation, names, marks or symbols connoting “Acacia” or
“DMT” which constitute a formative thereof.
“
Acacia
Subsidiary
”
means
each Subsidiary of Acacia other than CombiMatrix and the CombiMatrix
Subsidiaries.
“
Action
”
means,
with respect to any Person, any actual or threatened or future action, suit,
arbitration, inquiry, proceeding or investigation by or before any Governmental
Entity or any claims or other legal matters that have been or may be asserted
by
or against, or otherwise affect, such Person.
“
Affiliate
”
means,
with respect to any specified Person, any other Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by,
or is
under common control with, such specified Person;
provided
,
however
,
that
for purposes of the Separation Agreements, following the Time of Distribution,
neither Acacia nor any Acacia Subsidiary shall be deemed to be an Affiliate
of
any member of the CombiMatrix Group and neither CombiMatrix nor any CombiMatrix
Subsidiary shall be deemed to be an Affiliate of any member of the Acacia Group.
For purposes of the immediately preceding sentence, the term “control”
(including, with correlative meanings, the terms “controlled by” and “under
common control with”), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through ownership of voting
securities, by contract or otherwise.
“
Agreement
”
shall
have the meaning set forth in the preamble.
“
American
Stock Exchange
”
means
the American Stock Exchange LLC.
“
Asset/Liability
Allocation Matter
”
shall
have the meaning set forth in Section 2.01(b).
“
Assigning
Party
”
shall
have the meaning set forth in Section 2.07.
“
Business
Day
”
means
any day other than a Saturday, Sunday or other day when banks are authorized
or
required by law to be closed in California.
“
Bylaws
”
means
CombiMatrix’s amended Bylaws in the form attached hereto as Schedule
1.01(b).
“
CBMX
Tracking Stock
”
means
Acacia Research-CombiMatrix Common Stock, par value $0.001 per
share.
“
Certificate
of Incorporation
”
means
CombiMatrix’s restated certificate of incorporation in the form attached hereto
as Schedule 1.01(c).
“
Claims
Administration
”
means
the processing of claims made under Policies, including the reporting of claims
to the insurance carrier, management and defense of claims, and providing for
appropriate releases upon settlement of claims.
“
Claims
Made Policies
”
shall
have the meaning set forth in Section 5.01(b)(ii).
“
Code
”
means
the Internal Revenue Code of 1986, as amended, or any successor
legislation.
“
CombiMatrix
”
shall
have the meaning set forth in the preamble.
“
CombiMatrix
Accounts Receivable
”
mean
the Accounts Receivable set forth on the CombiMatrix Accounting Ledgers
immediately prior to the Time of Distribution.
“
CombiMatrix
Assets
”
means
the following:
(a)
all
rights of any member of the CombiMatrix Group under any Separation Agreement
to
which it is or becomes a party;
(b)
all
Assets which are expressly allocated to any member of the CombiMatrix Group
pursuant to the Employee Matters Agreement or the Tax Allocation
Agreement;
(c)
the
following specifically enumerated Assets which immediately prior to the Time
of
Distribution are owned by Acacia or any of its Subsidiaries (including Persons
comprising the CombiMatrix Group):
(i)
the
CombiMatrix Bank Accounts;
(ii)
the
CombiMatrix Cash (subject to Section 2.04(b));
(iii)
the
CombiMatrix Accounts Receivable;
(iv)
the
CombiMatrix Inventories;
(v)
the
CombiMatrix Machinery and Equipment;
(vi)
the
CombiMatrix Real Property;
(vii)
the
Patents and Trademarks set forth on Schedule 1.01(d);
(viii)
all
assets identified in Schedule 1.01(d) as CombiMatrix’s;
(d)
the
following Assets (other than those described in paragraphs (b) and (c) of the
definition of “Acacia Assets”) which immediately prior to the Time of
Distribution are owned by Acacia or any of its Subsidiaries (including Persons
comprising the CombiMatrix Group) and which are used exclusively in or relate
exclusively to the CombiMatrix Business, as the same shall exist as of such
time:
(i)
Contracts;
(ii)
advances,
performance and surety bonds, and interests as beneficiary under letters of
credit and other similar instruments and all proceeds thereof;
(iii)
Permits;
(iv)
credits,
prepayments and prepaid expenses;
(v)
claims,
causes of action, rights under express or implied warranties, guarantees and
indemnities and similar rights, rights of recovery, rights of set-off, rights
of
subrogation and all other rights of any kind (including the right to receive
mail and other communications); and
(vi)
goodwill,
going concern value and other intangible assets not otherwise included in
clauses (a) through (q) of the definition of “Assets”;
(e)
the
following Assets (other than those described in paragraphs (b) and (c) of the
definition of “Acacia Assets”) which immediately prior to the Time of
Distribution are owned by Acacia or any of its Subsidiaries (including Persons
comprising the CombiMatrix Group) and which are used 75% or more in or relate
75% or more to the CombiMatrix Business, as the same shall exist as of such
time:
(i)
Data
and
Records; and
(ii)
Trade
Secrets; and
(f)
all
rights, causes of action and claims of Acacia or any of its Subsidiaries
(including Persons comprising the CombiMatrix Group) to the extent relating
to
any asset described in clauses (a) through (e) above.
Anything
contained herein to the contrary notwithstanding, assets described in paragraphs
(b) and (c) of the definition of “Acacia Assets” will not be included in
CombiMatrix Assets.
“
CombiMatrix
Bank Accounts
”
means
all bank accounts which are solely in the name of one or more members of the
CombiMatrix Group immediately prior to the Time of Distribution.
“
CombiMatrix
Board
”
means
the Board of Directors of CombiMatrix.
“
CombiMatrix
Business
”
means
(a) the business and operations engaged in prior to the Time of
Distribution by the members of the Pre-Distribution Group (but with respect
to
each such member who has ceased to be an Affiliate of Acacia or its
predecessors, only businesses engaged in prior to the time that such member
of
the Pre-Distribution Group ceased to be an Affiliate of Acacia or its
predecessors) of (i) developing and licensing products for use by academic
and industrial researchers to develop various pharmaceutical, biotechnology
and
other applications and (ii) developing and licensing additional proprietary
products that have, and can be used for, such diverse applications as drug
target discovery and validations, genotyping, pathogen detection and/or
agricultural analysis; and (b) activities related primarily to the
foregoing.
“
CombiMatrix
Cash
”
means
(i) the following to the extent set forth on the CombiMatrix Accounting
Ledgers immediately prior to the Time of Distribution or located at Locations
of
the CombiMatrix Business at the Time of Distribution: cash in CombiMatrix Bank
Accounts, cash on hand, cash equivalents, funds, certificates of deposits,
similar instruments and travelers checks and (ii) cash deposits held by
third parties securing or otherwise collateralizing obligations relating to
the
CombiMatrix Business immediately prior to the Time of Distribution.
“
CombiMatrix
Common Stock
”
means
the common stock, par value $.00l per share, of CombiMatrix.
“
CombiMatrix
Expenses
”
means
the following out-of-pocket fees, costs and expenses of Acacia or any of its
Subsidiaries (including Persons comprising the CombiMatrix Group), in each
case,
whether incurred and/or paid before, at or after the Time of Distribution:
all
out-of-pocket fees, costs and expenses of the transfer agent and registrar
for
the CombiMatrix Common Stock.
“
CombiMatrix
Financial Instruments
”
means
those credit facilities, guaranties, foreign currency forward exchange
contracts, comfort letters, letters of credit and similar instruments related
to
the CombiMatrix Business under which any member of the Acacia Group has any
primary, secondary, contingent, joint, several or other Liability.
“
CombiMatrix
Group
”
means
CombiMatrix and the CombiMatrix Subsidiaries.
“
CombiMatrix
Indemnitees
”
means
each member of the CombiMatrix Group and each of their respective
Representatives and Affiliates and each of the heirs, executors, successors
and
permitted assigns of any of the foregoing.
“
CombiMatrix
Inventories
”
means
the Inventories set forth on the CombiMatrix Accounting Ledgers immediately
prior to Time of Distribution.
“
CombiMatrix
Liabilities
”
means
the following:
(a)
all
Liabilities of any Person comprising the CombiMatrix Group under any Separation
Agreement to which it is or becomes a party;
(b)
all
Liabilities for which any Person comprising the CombiMatrix Group is expressly
made responsible pursuant to the Employee Matters Agreement or the Tax
Allocation Agreement;
(c)
the
specifically enumerated Liabilities of CombiMatrix or any of its Subsidiaries
set forth on Schedule 1.01(e), in each case whether or not such Liabilities
relate to the Acacia Business, Acacia Assets, the CombiMatrix Business or
CombiMatrix Assets; and
(d)
all
Liabilities (other than those described in paragraphs (b) and (c) of the
definition of “Acacia Liabilities”) of Acacia or any of its Subsidiaries
(including Persons comprising the CombiMatrix Group) to the extent based upon,
arising out of or relating to the CombiMatrix Assets or the CombiMatrix
Business, including:
(i)
all
Liabilities (including Liabilities arising out of any breaches or violations)
to
the extent relating to the CombiMatrix’s Business based upon, arising out of or
relating to Contracts (whether or not such Contracts constitute CombiMatrix
Assets) (including any primary, secondary, contingent or other obligations,
such
as under guaranties or indemnities, in respect of such Contracts); and
(ii)
the
Actions set forth on Schedule 1.01(e).
Anything
contained herein to the contrary notwithstanding, Liabilities described in
paragraphs (b) and (c) of the definition of “Acacia Liabilities” will not be
included in CombiMatrix Liabilities.
“
CombiMatrix
Machinery and Equipment
”
means
the Machinery and Equipment set forth on the CombiMatrix Accounting Ledgers
immediately prior to the Time of Distribution.
“
CombiMatrix
Real Property
”
means
the Real Property set forth on Schedule 1.01(f)
“
CombiMatrix
Subsidiary
”
means
each Person listed on Schedule 1.01(g).
“
CombiMatrix/May
2003 Warrant
”
shall
have the meaning set forth in Section 5.03(a).
“
CombiMatrix/Piper
2005 Warrant
”
shall
have the meaning set forth in Section 5.03(b).
“
CombiMatrix/Oppenheimer
Warrant
”
shall
have the meaning set forth in Section 5.03(c).
“
Commission
”
means
the Securities and Exchange Commission.
“
Consents
”
means
consents, approvals, waivers, clearances, exemptions, allowances, novations,
authorizations, filings, registrations and notifications.
“
Contracts
”
means
all agreements, personal property leases, contracts (including employee
contracts), licenses, memoranda of understanding, letters of intent, sales
orders, purchase orders, open bids and other commitments, including in each
case, all amendments, modifications and supplements thereto and waivers and
consents thereunder, but excluding real property leases.
“
Contribution
”
shall
have the meaning set forth in the recitals.
“
Conveyance
Instruments
”
means,
collectively, the various agreements, stock powers, certificates of title,
instruments of conveyance and assignment, and other instruments and documents
to
be entered into to effect the transfer of Subsidiaries contemplated by the
transactions described in Sections 2.01(b) and (c).
“
Data
and Records
”
means
financial, accounting, corporate, operating, design, manufacturing, test and
other data and records (in each case, in whatever form or medium, including
electronic media), including books, records, notes, sales and sales promotional
material and data, advertising materials, credit information, cost and pricing
information, customer, supplier and agent lists, other records pertaining to
customers, business plans, reference catalogs, payroll and personnel records
and
procedures, blue-prints, research and development files, data and laboratory
books, sales order files, litigation files, minute books, stock ledgers, stock
transfer records and other similar data and records.
“
Dispute
”
shall
have the meaning set forth in Section 7.05.
“
Distribution
”
means
the distribution, on the basis provided for in Section 3.01, to the holders
of
CBMX Tracking Stock of the shares of CombiMatrix Common Stock owned by Acacia
on
the Distribution Date.
“
Distribution
Agent
”
means
the distribution agent selected by Acacia to distribute CombiMatrix Common
Stock
in connection with the Distribution.
“
Distribution
Date
”
means
the date determined by the Acacia Board in accordance with Section 3.01 as
the
date as of which the Distribution will be effected.
“
Employee
Matters Agreement
”
means
the Employee Matters Agreement dated as of the date hereof entered into prior
to
the Time of Distribution by and between Acacia and CombiMatrix.
“
Former
Business
”
means
any corporation, partnership, entity, division, business unit, business, assets,
plants, product line, operations or contract (including any assets and
liabilities comprising the same) that has been sold, conveyed, assigned,
transferred or otherwise disposed of or divested (in whole or in part) by any
member of the Pre-Distribution Group or the operations, activities or production
of which has been discontinued, abandoned, completed or otherwise terminated
(in
whole or in part) by any member of the Pre-Distribution Group.
“
Governmental
Entity
”
means
any government or any court, arbitral tribunal, administrative agency or
commission or other governmental or regulatory authority or agency, federal,
state, local, domestic, foreign or international.
“
Group
”
means
the Acacia Group or the CombiMatrix Group, as applicable.
“
Indemnifiable
Losses
”
means
any and all losses, Liabilities, claims, damages, deficiencies, obligations,
fines, payments, Taxes, Liens, costs and expenses, matured or unmatured,
absolute or contingent, accrued or unaccrued, liquidated or unliquidated, known
or unknown, whenever arising and whether or not resulting from Third Party
Claims (including the costs and expenses of any and all Actions; all amounts
paid in connection with any demands, assessments, judgments, settlements and
compromises relating thereto; interest and penalties with respect thereto;
out-of-pocket expenses and reasonable attorneys’, accountants’ and other
experts’ fees and expenses reasonably incurred in investigating, preparing for
or defending against any such Actions or in asserting, preserving or enforcing
an Indemnitee’s rights hereunder; and any losses that may result from the
granting of injunctive relief as a result of any such Actions).
“
Indemnifying
Party
”
shall
have the meaning set forth in Section 4.04(a).
“
Indemnitee
”
means
any of the Acacia Indemnitees or the CombiMatrix Indemnitees who or which is
entitled to seek indemnification under this Agreement.
“
Indemnity
Reduction Amounts
”
shall
have the meaning set forth in Section 4.04(a).
“
Information
”
means
all records, books, contracts, instruments, computer data and other data and
information (in each case, in whatever form or medium, including electronic
media).
“
Insurance
Proceeds
”
means
monies (a) received by an insured from an insurance carrier, (b) paid by an
insurance carrier on behalf of an insured or (c) received from any third party
in the nature of insurance, contribution or indemnification in respect of any
Liability.
“
Liabilities
”
means
any and all claims, debts, liabilities, commitments and obligations of whatever
nature, whether fixed, contingent or absolute, matured or unmatured, liquidated
or unliquidated, accrued or not accrued, known or unknown, due or to become
due,
whenever or however arising and whether or not the same would be required by
generally accepted accounting principles to be reflected as a liability in
financial statements or disclosed in the notes thereto, including all costs
and
expenses relating thereto and those claims, debts, liabilities, commitments
and
obligations:
(a)
based
upon, arising out of or relating to any law, statute, rule, regulation,
judgment, order, decision or consent decree of any Governmental Entity or any
noncompliance therewith or breach or violation of any thereof;
(b)
in
respect of
accounts payable;
(c)
in
respect of outstanding checks;
(d)
based
upon, arising out of or relating to workers’ compensation, automobile liability,
general liability, product liability, intellectual property liability and other
claims and matters (whether direct or for indemnification of any Person or
otherwise, and whether insured or uninsured);
(e)
based
upon, arising out of or relating to Actions or any award of any arbitrator
of
any kind;
(f)
in
respect of salary, bonuses, incentive payments, severance payments and other
compensation payments and all Taxes and withholdings related
thereto;
(g)
in
respect of employee welfare and fringe benefits (including claims for medical
and disability benefits);
(h)
based
upon, arising out of or relating to environmental matters (including the
presence, release or threatened release of hazardous materials or any other
environmental conditions or the violation of any environmental laws), including
all removal, remediation and cleanup costs, investigatory costs, settlement
costs, governmental response costs, natural resources damages, property damages,
personal injury damages and all other costs and damages;
(i)
based
upon, arising out of or relating to Contracts;
(j)
based
upon, arising out of or relating to torts (whether based on negligence, strict
liability or otherwise) or infringements; and
(k)
in
respect of products and services, including warranty liabilities, deferred
revenues, product liability claims and liabilities in respect of the return,
repair or replacement of products.
“
Liability
Allocation Matter
”
shall
have the meaning set forth in Section 2.01(b).
“
Lien
”
means
any lien, security interest, pledge, mortgage, charge, restriction, retention
of
title agreement or other encumbrance of whatever nature.
“
Machinery
and Equipment
”
means
machinery, equipment, tooling, vehicles, furniture and fixtures (other than
real
property fixtures), leasehold improvements, repair parts, tools, plant,
laboratory and office equipment and supplies, computer hardware and software,
computer networking equipment, engineering and design equipment, test equipment
and other tangible personal property (other than tangible personal property
included in other categories of assets in the definition of “Assets”), together
with any rights or claims arising out of maintenance or service contracts
relating thereto or the breach of any express or implied warranty by the
manufacturers or sellers of any of such assets or any component part
thereof.
“
Occurrence
Basis Policies
”
shall
have the meaning set forth in Section 5.01(b)(i).
“
Oppenheimer
Warrant
”
means
any warrant issued in Acacia’s registered direct offering in December 2006 in
which Oppenheimer & Co. Inc. acted as the placement agent.
“
Permits
”
means
licenses, permits, authorizations, Consents, certificates, registrations,
variances, franchises and other approvals from any Governmental Entity,
including those relating to environmental matters.
“
Person
”
means
any individual, partnership, joint venture, corporation, limited liability
entity, trust, unincorporated organization or other entity (including a
Governmental Entity).
“
May
2003 Warrant
”
means
any warrant issued in Acacia’s May 2003 private placement
transaction.
“
Piper
2005 Warrant
”
means
any warrant issued in Acacia’s registered direct offering in September 2005 in
which Piper Jaffrey & Co. acted as the placement agent.
“
Policies
”
means
all insurance policies, insurance contracts and claim administration contracts
of any kind of Acacia and its Subsidiaries (including Persons comprising the
CombiMatrix Group) and their predecessors which were or are in effect at any
time at or prior to the Time of Distribution (other than insurance policies,
insurance contracts and claim administration contracts established in
contemplation of the Distribution to cover only CombiMatrix and its Subsidiaries
after the Time of Distribution), including primary, excess and umbrella,
commercial general liability, fiduciary liability, product liability,
automobile, aircraft, property and casualty, business interruption, directors
and officers liability, employment practices liability, workers’ compensation,
crime, errors and omissions, special accident, cargo and employee dishonesty
insurance policies and captive insurance company arrangements, together with
all
rights, benefits and privileges thereunder.
“
Pre-Distribution
Group
”
means
(a) each of Acacia, the Subsidiaries of Acacia existing immediately prior to
the
Time of Distribution (including Persons comprising the CombiMatrix Group) and
Persons that have ceased to be Subsidiaries of Acacia prior to the Time of
Distribution, (b) each of the predecessors of each of the foregoing and
(c) each of the Persons that have ceased to be Subsidiaries and other
Affiliates of each of the foregoing and their predecessors prior to the Time
of
Distribution.
“
Privileged
Information
”
means,
with respect to a Group, Information regarding a member of such Group, or any
of
its operations, employees, assets or Liabilities (whether in documents or stored
in any other form or known to its employees or agents) that is or may be
protected from disclosure pursuant to the attorney-client privilege, the work
product doctrine or other applicable privileges, that a member of the other
Group has or may come into possession of or has obtained or may obtain access
to
pursuant to this Agreement or otherwise.
“
Real
Property
”
means
real property (including land, plants, buildings, real property fixtures and
improvements) and real property interests (including real property leases,
easements and rights of way, occupancy or use).
“
Recipient
Party
”
shall
have the meaning set forth in Section 2.08.
“
Record
Date
”
means
the close of business on the forty-fifth (45
th
)
Trading
Day following the effective date of the Registration Statement.
“
Representative
”
means,
with respect to any Person, any of such Person’s directors, officers, employees,
agents, consultants, advisors, accountants, attorneys and
representatives.
“
Registration
Statement
”
means
the registration statement on Form S-1 filed by CombiMatrix with the Commission
to effect the registration of the CombiMatrix Common Stock pursuant to the
Securities Act, including all amendments thereto filed by CombiMatrix with
the
Commission prior to the Time of Distribution.
“
Securities
”
means
all short-term and long-term investments, banker’s acceptances, shares of stock,
notes, bonds, debentures, evidences of indebtedness, certificates of interest
or
participation in profit-sharing agreements, collateral-trust certificates,
preorganization certificates or subscriptions, transferable shares, puts, calls,
straddles, options, investment contracts, voting trusts and certificates and
other securities of any kind (other than ownership interests in
Subsidiaries).
“
Securities
Act
”
means
the Securities Act of 1933, as amended.
“
Separation
Agreements
”
means,
collectively, this Agreement, the Employee Matters Agreement, the Tax Allocation
Agreement, the Conveyance Instruments, and any other agreement entered into
between Acacia and CombiMatrix in connection with the Contribution and the
Distribution.
“
Subsidiary
”
means,
with respect to any Person, any corporation or other organization, whether
incorporated or unincorporated, of which such Person or any Subsidiaries of
such
Person controls or owns, directly or indirectly, more than 50% of the stock
or
other equity interest, or more than 50% of the voting power entitled to vote
on
the election of members to the board of directors or similar governing body.
Notwithstanding the foregoing, the term “Subsidiary” shall also mean, with
respect to CombiMatrix, the following entities: (i) Leuchemix, a California
corporation, and (ii) CombiMatrix K.K., a Japanese corporation.
“
Tax
”
and
“
Taxes
”
shall
have the meaning set forth in the Tax Allocation Agreement.
“
Tax
Allocation Agreement
”
means
the Tax Allocation Agreement dated as of the date hereof entered into prior
to
the Time of Distribution by and between Acacia and CombiMatrix.
“
Third
Party Claim
”
shall
have the meaning set forth in Section 4.05(a).
“
Time
of Distribution
”
means
the close of business on the Distribution Date.
“
Trade
Secrets
”
means
(a) trade secrets and confidential business and technical information (including
ideas, research and development, know-how, formulas, technology, compositions,
manufacturing and production processes and techniques, technical data,
engineering, production and other designs, drawings, engineering notebooks,
industrial models, mask works, semiconductor chip topographies, software and
specifications and any other information meeting the definition of a trade
secret under the Uniform Trade Secrets Act); (b) computer and electronic data
processing programs and software, both source code and object code (including
data and related documentation, flow charts, diagrams, descriptive texts and
programs, computer print-outs, underlying tapes, computer databases and similar
items), computer applications and operating programs; and (c) all copies and
tangible embodiments of any or all of the foregoing (in whatever form or medium,
including electronic media).
“
Trading
Day
”
shall
have the meaning as set forth in Acacia’s Amended and Restated Certificate of
Incorporation.
ARTICLE
II
THE
CONTRIBUTION
Section
2.01
Intercorporate
Reorganization
.
(a)
Prior
to
the Time of Distribution, Acacia and CombiMatrix will take all actions necessary
to increase the outstanding shares of CombiMatrix Common Stock so that,
immediately prior to the Distribution, Acacia will hold a number of shares
of
CombiMatrix Common Stock (rounded down to the nearest whole share) equal to
the
aggregate number of shares of CombiMatrix Tracking Stock (excluding treasury
shares held by Acacia) issued and outstanding as of the Record
Date.
(b)
As
of the
Time
o
f
Distribution
(i)
Acacia
and each Acacia Subsidiary shall convey, assign and transfer, or cause to be
conveyed, assigned and transferred, to CombiMatrix any and all right, title
and
interest of Acacia and each of the Acacia Subsidiaries in the CombiMatrix
Subsidiaries;
(ii)
CombiMatrix
and the CombiMatrix Subsidiaries shall not have any right, title or interest
in
or to any Acacia Subsidiary or Acacia Asset;
(iii)
Acacia
shall unconditionally assume and undertake to pay, perform and discharge, in
a
timely manner and in accordance with the terms thereof, all Liabilities of
CombiMatrix and the CombiMatrix Subsidiaries that are Acacia Liabilities;
and
(iv)
CombiMatrix
shall unconditionally assume and undertake to pay, perform and discharge, in
a
timely manner and in accordance with the terms thereof, all Liabilities of
Acacia and the Acacia Subsidiaries that are CombiMatrix
Liabilities.
If
at any
time or from time to time (whether at or after the Time of Distribution) any
member of the Acacia Group shall receive or otherwise possess any CombiMatrix
Asset or interest in a CombiMatrix Subsidiary, such member will promptly convey,
assign and transfer, or cause to be conveyed, assigned and transferred, such
CombiMatrix Asset or interest in a CombiMatrix Subsidiary to CombiMatrix. If
at
any time or from time to time (whether at or after the Time of Distribution)
any
member of the CombiMatrix Group shall receive or otherwise possess any Acacia
Asset or interest in an Acacia Subsidiary, such member will promptly convey,
assign and transfer, or cause to be conveyed, assigned and transferred, such
Acacia Asset or interest in an Acacia Subsidiary to Acacia. Prior to any such
transfer, the Person receiving or possessing such Asset or interest in a
Subsidiary will hold such Asset or interest in a Subsidiary in trust for the
benefit of the Person entitled thereto (at the expense of the Person entitled
thereto).
If
at any
time or from time to time (whether at or after the Time of Distribution) either
Acacia or CombiMatrix determines that the other party (or any member of such
other party’s respective Group) shall not have unconditionally assumed any
Liabilities that are allocated to such other party (or a member of such other
party’s respective Group) pursuant to this Agreement, the Employee Matters
Agreement or the Tax Allocation Agreement, such other party will promptly
execute and deliver, or cause to be executed and delivered, all such documents
and instruments and will take, or cause to be taken, all such actions as the
requesting party may reasonably request to unconditionally assume, or cause
to
be unconditionally assumed, such Liabilities.
Solely
for purposes of implementing the terms of this Agreement, during the period
beginning on the date of this Agreement and ending twelve months after the
Distribution Date, Acacia and CombiMatrix agree to discuss the allocation of
any
Asset or Liability of Acacia and its Subsidiaries (including Persons comprising
the CombiMatrix Group) that either of them reasonably believes should be or
should have been allocated differently than pursuant to the terms of this
Agreement (an “
Asset/Liability
Allocation Matter
”).
The
Acacia Chief Executive Officer will designate an employee of Acacia and the
CombiMatrix Chief Executive Officer will designate an employee of CombiMatrix
who will discuss an appropriate resolution of any Asset/Liability Allocation
Matter. If within thirty days of the receipt of the notification of an
Asset/Liability Allocation Matter by either Acacia or CombiMatrix pursuant
to
this paragraph, or such other time as Acacia and CombiMatrix may agree, the
designees have not reached a mutually acceptable resolution of the
Asset/Liability Allocation Matter, the matter will be referred for discussion
to
the Acacia Chief Executive Officer and the CombiMatrix Chief Executive Officer.
Should a mutually acceptable resolution of the Asset/Liability Allocation Matter
not be reached within thirty days following the referral to them, the terms
and
conditions of this Agreement shall remain in full force and effect, unamended,
unmodified and unsupplemented. In no event shall the terms and conditions of
this Agreement be amended, modified or supplemented other than in accordance
with the provisions of Section 7.07. Nothing in this paragraph shall affect
the
right of any party to resort to the dispute resolution provisions of Section
7.05 in respect of any dispute, claim or controversy arising out of an alleged
breach of any provision of this Agreement.
(c)
Acacia
will take, or cause to be taken, the actions described on Schedule 2.01(c)
in connection with the operation of the Acacia Business.
(d)
In
connection with the transfers of Subsidiaries and the assumptions of Liabilities
contemplated by subsections (b) and (c) of this Section 2.01, Acacia
and CombiMatrix will execute or cause to be executed by the appropriate entities
the Conveyance Instruments. The transfer of capital stock contemplated by such
subsections will be effected by means of delivery of stock certificates duly
endorsed or accompanied by duly executed stock powers and notation on the stock
record books of the corporation or other legal entities involved and, to the
extent required by applicable law, by notation on appropriate
registries.
(e)
Each
of
Acacia (on behalf of itself and each other member of the Acacia Group) and
CombiMatrix (on behalf of itself and each other member of the CombiMatrix Group)
understands and agrees that, except as expressly set forth in any Separation
Agreement or any other agreement or document contemplated by any Separation
Agreement, no party to any Separation Agreement, or any other agreement or
document contemplated by any Separation Agreement either has or is, in such
agreement or otherwise, representing or warranting in any way as to Assets,
Subsidiaries, businesses or Liabilities retained, conveyed, assigned,
transferred or assumed as contemplated hereby or thereby, as to any consents
or
approvals required in connection with the transactions contemplated by the
Separation Agreements, as to the value or freedom from any Lien of, or any
other
matter concerning any Assets, Liabilities or Subsidiaries of, such party, or
as
to the absence of any defenses or rights of setoff or freedom from counterclaim
with respect to any claim or other Assets or Subsidiaries of any party, or
as to
the legal sufficiency of any assignment, document or instrument delivered
hereunder or thereunder to convey title to any Asset or Subsidiary or thing
of
value upon the execution, delivery or filing thereof. Except as may expressly
be
set forth in any Separation Agreement, all Assets and Subsidiaries being
transferred or retained as contemplated by any Separation Agreement are being
transferred, or are being retained, on an “as is”, “where is” basis and the
respective transferees shall bear the economic and legal risks that any
conveyance shall prove to be insufficient or that the title to any Asset or
Subsidiary shall be other than good and marketable and free and clear of any
Lien.
(f)
It
is the
intention of the parties that payments made by the parties to each other after
the Time of Distribution pursuant to this Agreement, the Employee Matters
Agreement or the Tax Allocation Agreement are to be treated as relating back
to
the transactions occurring prior to the Time of Distribution pursuant to this
Section 2.01 as an adjustment to the transfers of Assets, Subsidiaries and
Liabilities contemplated by this Section 2.01, and Acacia and CombiMatrix
will, and will cause the Acacia Subsidiaries and the CombiMatrix Subsidiaries,
respectively, to, take positions consistent with such intention with any Tax
authority, unless with respect to any payment any party receives an opinion
of
counsel reasonably acceptable to the other party to the effect that there is
no
substantial authority for such a position.
Section
2.02
Financial
Instruments
.
(a)
CombiMatrix
will (from and after the Time of Distribution, at its expense) take or cause
to
be taken all actions, and enter into (or cause the CombiMatrix Subsidiaries
to
enter into) such agreements and arrangements, as shall be necessary to effect
the release of and substitution for each member of the Acacia Group, effective
as of the Time of Distribution, from all primary, secondary, contingent, joint,
several and other Liabilities in respect of CombiMatrix Financial Instruments
(it being understood that all Liabilities in respect of CombiMatrix Financial
Instruments are CombiMatrix Liabilities).
(b)
CombiMatrix’s
obligations under Section 2.02(a) will continue to be applicable to all
CombiMatrix Financial Instruments identified at any time by Acacia, whether
before, at or after the Time of Distribution.
Section
2.03
Intercompany
Accounts and Arrangements
.
(a)
Elimination
of Intercompany Accounts
.
(i)
Except
as
set forth in Section 2.03(a)(ii) or on Schedule 2.03(a), Acacia, on behalf
of
itself and each other member of the Acacia Group, on the one hand, and
CombiMatrix, on behalf of itself and each other member of the CombiMatrix Group,
on the other hand, hereby settle and eliminate, by cancellation or transfer
to a
member of the other Group (whether to cancel or transfer and the manner thereof
will be determined by Acacia), effective as of the Time of Distribution, all
intercompany receivables, payables and other balances (including intercompany
cash management balances) existing immediately prior to the Time of Distribution
between Acacia and/or any Acacia Subsidiary, on the one hand, and CombiMatrix
and/or any CombiMatrix Subsidiary, on the other hand.
(ii)
The
provisions of Section 2.03(a)(i) will not apply to any intercompany receivables,
payables and other balances arising under any Separation Agreement, including
those arising under Section 2.04 or incurred in connection with the payment
by
any party of any expenses which are required to be paid or reimbursed by the
other party pursuant to Section 4.08.
(b)
Intercompany
Agreements
.
(i)
Except
as
set forth in Section 2.03(b)(ii), in furtherance of the releases and other
provisions of Section 4.01, CombiMatrix, on behalf of itself and each other
member of the CombiMatrix Group, and Acacia, on behalf of itself and each other
member of the Acacia Group, hereby terminate any and all agreements,
arrangements, commitments or understandings in existence as of the Time of
Distribution, whether or not in writing, between or among CombiMatrix and/or
any
CombiMatrix Subsidiary, on the one hand, and Acacia and/or any Acacia
Subsidiary, on the other hand. No such terminated agreement, arrangement,
commitment or understanding (including any provision thereof which purports
to
survive termination) shall be of any further force or effect after the Time
of
Distribution.
(ii)
The
provisions of Section 2.03(b)(i) will not apply to any of the following
agreements, arrangements, commitments or understandings (or to any of the
provisions thereof): (A) the Separation Agreements and each other
agreement, instrument or document expressly contemplated by any Separation
Agreement to be entered into by any party hereto or any of the members of their
respective Groups; (B) any agreements, arrangements, commitments or
understandings listed or described on Schedule 2.03(b); (C) any agreements,
arrangements, commitments or understandings to which any Person other than
the
parties hereto and their respective Affiliates is a party; and (D) any
other agreements, arrangements, commitments or understandings that any
Separation Agreement expressly contemplates will survive the Time of
Distribution.
(c)
Funding
of Outstanding Checks
.
(i)
CombiMatrix
or a CombiMatrix Subsidiary will fund all amounts in respect of checks that
are
outstanding immediately prior to the Time of Distribution and presented for
payment at or after the Time of Distribution in CombiMatrix Bank
Accounts.
(ii)
Acacia
or
an Acacia Subsidiary will fund all amounts in respect of checks that are
outstanding immediately prior to the Time of Distribution and presented for
payment at or after the Time of Distribution in Acacia Bank
Accounts.
(iii)
The
provisions of this Section 2.04(c) with respect to funding of outstanding checks
will not affect in any way, and will be subject to, all other provisions of
this
Agreement providing for the reimbursement of any amounts or the allocation
of
any Liabilities, including Section 4.08.
(d)
Payments
.
(i)
CombiMatrix
will, and will cause the CombiMatrix Subsidiaries to, forward to Acacia (for
the
account of Acacia or the applicable Acacia Subsidiary) any payments in respect
of accounts receivable constituting Acacia Assets received by CombiMatrix or
any
of the CombiMatrix Subsidiaries after the Time of Distribution, whether received
in lock boxes, via wire transfer or otherwise, by the first Business Day of
the
week after the week during which such payment is received. Such amounts will
be
forwarded by wire transfer (to an Acacia’s bank account designated in writing by
Acacia) in the case of payments received within thirty days after the Time
of
Distribution and by check in the case of payments received
thereafter.
(ii)
Acacia
will, and will cause the Acacia Subsidiaries to, forward to CombiMatrix (for
the
account of CombiMatrix or the applicable CombiMatrix Subsidiary) any payments
in
respect of accounts receivable constituting CombiMatrix Assets received by
Acacia or any of the Acacia Subsidiaries after the Time of Distribution, whether
received in lock boxes, via wire transfer or otherwise, by the first business
day of the week after the week during which such payment is received. Such
amounts will be forwarded by wire transfer (to a CombiMatrix’s bank account
designated in writing by CombiMatrix) in the case of payments received within
thirty days after the Time of Distribution and by check in the case of payments
received thereafter.
Section
2.04
The
CombiMatrix Board
.
Prior
to the Time of Distribution, CombiMatrix and Acacia will take all actions which
may be required to elect or otherwise appoint as directors of CombiMatrix the
persons named on Schedule 2.04 to constitute the board of directors of
CombiMatrix at the Time of Distribution.
Section
2.05
Resignations,
Transfer of Stock Held as Nominee
.
(a)
Acacia
will cause all of its employees and directors and all of the employees and
directors of each other member of the Acacia Group to resign, effective not
later than the Time of Distribution, from all boards of directors or similar
governing bodies of CombiMatrix or any other member of the CombiMatrix Group
on
which they serve, and from all positions as officers of CombiMatrix or any
other
member of the CombiMatrix Group in which they serve, except as otherwise
specified on Schedule 2.05. CombiMatrix will cause all of its employees and
directors and all of the employees and directors of each other member of the
CombiMatrix Group to resign, effective not later than the Time of Distribution,
from all boards of directors or similar governing bodies of Acacia or any other
member of the Acacia Group on which they serve, and from all positions as
officers of Acacia or any other member of the Acacia Group in which they serve,
except as otherwise specified on Schedule 2.05.
(b)
Acacia
will cause each of its employees, and each of the employees of the other members
of the Acacia Group, who holds stock or similar evidence of ownership of any
CombiMatrix Group entity as nominee for such entity pursuant to the laws of
the
country in which such entity is located to transfer such stock or similar
evidence of ownership to the Person so designated by CombiMatrix to be such
nominee as of and after the Time of Distribution. CombiMatrix will cause each
of
its employees, and each of the employees of the other members of the CombiMatrix
Group, who holds stock or similar evidence of ownership of any Acacia Group
entity as nominee for such entity pursuant to the laws of the country in which
such entity is located to transfer such stock or similar evidence of ownership
to the Person so designated by Acacia to be such nominee as of and after the
Time of Distribution.
(c)
Acacia
will cause each of its employees and each of the employees of the other members
of the Acacia Group to revoke or withdraw their express written authority,
if
any, to act on behalf of any CombiMatrix Group entity as an agent or
representative therefor after the Time of Distribution. CombiMatrix will cause
each of its employees and each of the employees of the other members of the
CombiMatrix Group to revoke or withdraw their express written authority, if
any,
to act on behalf of any Acacia Group entity as an agent or representative
therefor after the Time of Distribution.
Section
2.06
CombiMatrix
Certificate of Incorporation and Bylaws
.
Prior
to the Time of Distribution, (a) the CombiMatrix Board will
(i) approve the Certificate of Incorporation and will cause the same to be
filed with the Secretary of State of the State of Delaware and (ii) adopt
the Bylaws, and (b) Acacia, as sole shareholder of CombiMatrix, will
approve the Certificate of Incorporation.
Section
2.07
Consents
.
Prior
to and after the Distribution Date, Acacia and CombiMatrix will, and will cause
the Acacia Subsidiaries and the CombiMatrix Subsidiaries, respectively, to,
use
their commercially reasonable efforts (as requested by the other party) to
obtain, or to cause to be obtained, all Consents necessary for the transfer
of
all Assets, Subsidiaries and Liabilities contemplated to be transferred pursuant
to this Article II;
provided
,
however
,
that
none of Acacia (or any of the Acacia Subsidiaries) or CombiMatrix (or any of
the
CombiMatrix Subsidiaries) shall be obligated to pay any consideration or offer
or grant any financial accommodation in connection therewith. Anything contained
herein to the contrary notwithstanding, this Agreement shall not constitute
an
agreement to assign any Contract or Permit if an assignment or attempted
assignment of the same without the Consent of any other party or parties thereto
or other required Consent would constitute a breach thereof or of any applicable
law or in any way impair the rights of any member of the Acacia Group or the
CombiMatrix Group thereunder. If any such Consent is not obtained or if an
attempted assignment would be ineffective or would impair any rights of any
member of either
Group
under any such Contract or Permit so that the contemplated assignee hereunder
(the “
Recipient
Party
”)
would
not receive all such rights, then after the Time of Distribution (x) the party
contemplated hereunder to assign such Contract or Permit (the “
Assigning
Party
”)
will
use commercially reasonable efforts (it being understood that such efforts
shall
not include any requirement of the Assigning Party to pay any consideration
or
offer or grant any financial accommodation) to provide or cause to be provided
to the Recipient Party the benefits of any such Contract or Permit and the
Assigning Party will promptly pay or cause to be paid to the Recipient Party
when received all moneys and properties received by the Assigning Party with
respect to any such Contract or Permit and (y) the Recipient Party will pay,
perform and discharge on behalf of the Assigning Party all of the Assigning
Party’s Liabilities thereunder in a timely manner and in accordance with the
terms thereof. If and when such Consents are obtained, the transfer of the
applicable Contract or Permit shall be effected as promptly following the Time
of Distribution as shall be practicable in accordance with the terms of this
Agreement. To the extent that any transfers and assumptions contemplated by
this
Article II shall not have been consummated on or prior to the Time of
Distribution, the parties shall cooperate to effect such transfers as promptly
following the Time of Distribution as shall be practicable, it nonetheless
being
agreed and understood by the parties that no party shall be liable in any manner
to any other party for any failure of any of the transfers contemplated by
this
Article II to be consummated prior to the Time of Distribution.
ARTICLE
III
THE
DISTRIBUTION
Section
3.01
The
Distribution
.
(a)
Subject
to Section 3.04, prior to the Time of Distribution, Acacia will deliver to
the
Distribution Agent, for the benefit of holders of record of CombiMatrix Tracking
Stock as of the Record Date, a number of shares of CombiMatrix Common Stock
(rounded down to the nearest whole share) equal to the number of shares of
CombiMatrix Tracking Stock issued and outstanding as of the Record Date
(excluding treasury shares held by Acacia), and Acacia will instruct the
Distribution Agent to make book-entry credits on the Distribution Date or as
soon thereafter as practicable for each holder of record of CombiMatrix Tracking
Stock as of the Record Date, or the designated transferee or transferees of
such
holder, for a number of shares of CombiMatrix Common Stock (rounded down to
the
nearest whole share) equal to the number of shares of CombiMatrix Tracking
Stock
so held by such holder of record as of the Record Date (excluding treasury
shares held by Acacia). The Distribution will be effective as of the Time of
Distribution.
(b)
Acacia
and CombiMatrix each will provide to the Distribution Agent all information
(including information necessary to make appropriate book-entry credits) and
share certificates, in each case, as may be required in order to complete the
Distribution on the basis of one share of CombiMatrix Common Stock for every
one
share of CombiMatrix Tracking Stock (excluding treasury shares held by
Acacia).
Section
3.02
Fractional
Shares
.
Anything contained herein to the contrary notwithstanding, no fractional shares
of CombiMatrix Common Stock will be distributed to holders of CombiMatrix
Tracking Stock in the Distribution. Holders that are otherwise entitled to
receive less than one whole share of CombiMatrix Common Stock in the
Distribution will receive cash in lieu of such fractional share as contemplated
hereby. As soon as practicable after the Distribution Date, Acacia will direct
the Distribution Agent to determine in accordance with its customary practice
the number of fractional shares of CombiMatrix Common Stock otherwise allocable
to holders of record or beneficial owners of CombiMatrix Tracking Stock as
of
the Record Date, to aggregate all such fractional shares and sell as soon as
practicable the whole shares obtained by aggregating such fractional shares
either in open market transactions or otherwise, in each case at then prevailing
trading prices, and to cause to be distributed to each such holder or for the
benefit of each such beneficial owner, in lieu of any fractional share, such
holder’s or owner’s ratable share of the proceeds of such sale, after making
appropriate deductions of the amount required to be withheld for federal income
tax purposes and after deducting an amount equal to all brokerage charges,
commissions and transfer taxes attributed to such sale. Acacia will direct
the
Distribution Agent to seek to aggregate the shares of CombiMatrix Tracking
Stock
that may be held by any such beneficial owner thereof through more than one
account in determining the fractional share allocable to such beneficial
owner.
Section
3.03
Cooperation
Prior to the Distribution
.
Prior
to the Distribution:
(a)
Acacia
and CombiMatrix will prepare the Registration Statement which will include
appropriate disclosure concerning CombiMatrix, its business, operations and
management, the Contribution, the Distribution and such other matters as Acacia
and CombiMatrix may determine and as may be required by law. Acacia and
CombiMatrix will prepare, and CombiMatrix will file with the Commission, the
Registration Statement. CombiMatrix will use its commercially reasonable efforts
to cause the Registration Statement to become effective under the Securities
Act
as soon as practicable following the filing thereof. Promptly after
effectiveness of the Registration Statement and prior to the Distribution,
Acacia will mail to the holders of CombiMatrix Tracking Stock the Registration
Statement.
(b)
Acacia
and CombiMatrix will cooperate in preparing, filing with the Commission and
causing to become effective any registration statements or amendments thereof
which are required to reflect the establishment of, or amendments to, any
employee benefit and other plans contemplated by the Employee Matters
Agreement.
(c)
Acacia
and CombiMatrix will take all such action as may be necessary or appropriate
under the securities or “blue sky” laws of the states or other political
subdivisions of the United States and the securities laws of any applicable
foreign countries or other political subdivisions thereof in connection with
the
transactions contemplated by this Agreement.
(d)
Acacia
and CombiMatrix will cause to be prepared, and CombiMatrix will file and use
its
commercially reasonable efforts to have approved, an application for the listing
on the American Stock Exchange or another exchange approved by each of Acacia
and CombiMatrix of the CombiMatrix Common Stock to be distributed in the
Distribution.
Section
3.04
Acacia
Board Action Conditions to the Distribution
.
The
Acacia Board will in its discretion establish the Record Date and the
Distribution Date and all appropriate procedures in connection with the
Distribution, but in no event will the Distribution occur prior to such time
as
each of the following conditions shall have been satisfied or shall have been
waived by the Acacia Board in accordance with Section 3.05:
(a)
the
Acacia Board shall be reasonably satisfied that (i) Acacia will have
sufficient surplus under Section 170 of the Delaware General Corporation Law
to
permit the Distribution and (ii) after giving effect to the Contribution
and the Distribution, each of Acacia and CombiMatrix will not be insolvent
and
will not have unreasonably small capital with which to engage in its respective
businesses;
(b)
the
Acacia Board shall have given final approval of the Distribution;
(c)
the
Acacia Board shall have received a favorable opinion issued by Greenberg Traurig
LLP confirming that the Distribution should qualify as a tax-free reorganization
within the meaning of Section 368(a)(i)(d) of the Code;
(d)
the
Acacia Board shall have received a favorable private letter ruling issued by
the
Internal Revenue Service confirming that the Distribution will qualify as a
tax-free reorganization within the meaning of Section 368(a)(i)(d) of the
Code;
(e)
all
material Consents which are required to effect the Contribution and the
Distribution shall have been obtained and shall be in full force and effect;
(f)
the
Registration Statement shall have become effective under the Securities
Act;
(g)
the
Certificate of Incorporation and the Bylaws each shall have been adopted and
be
in effect;
(h)
the
transactions contemplated by Section 2.01, and Section 2.03(a) shall have
been consummated in all material respects;
(i)
Acacia
and CombiMatrix shall have entered into each of the Separation Agreements to
which they are parties and each such agreement shall be in full force and
effect;
(j)
no
order,
injunction or decree issued by any court of competent jurisdiction or other
legal restraint or prohibition preventing consummation of the Contribution
or
the Distribution shall be in effect;
(k)
no
suit,
action or proceeding by or before any court of competent jurisdiction or other
Governmental Entity shall have been commenced and be pending to restrain or
challenge the Contribution or Distribution, and no inquiry shall have been
received that in the reasonable judgment of the Acacia Board may lead to such
a
suit, action or proceeding; and provided, that the satisfaction of such
conditions will not create any obligation on the part of Acacia to effect or
seek to effect the Contribution or the Distribution or in any way limit Acacia’s
right to terminate this Agreement set forth in Section 7.13 or alter the
consequences of any such termination from those specified in
Section 7.13.
Section
3.05
Waiver
of Conditions
.
Any or
all of the conditions set forth in Section 3.04 may be waived, in whole or
in part, in the sole discretion of the Acacia Board. The conditions set forth
in
Section 3.04 are for the sole benefit of Acacia and shall not give rise to
or create any duty on the part of Acacia or the Acacia Board to waive or not
waive any such conditions.
ARTICLE
IV
MUTUAL
RELEASE; INDEMNIFICATION; EXPENSES
Section
4.01
Mutual
Release
.
Effective as of the Time of Distribution and except as otherwise specifically
set forth in the Separation Agreements, each of Acacia, on behalf of itself
and
each other member of the Acacia Group, on the one hand, and CombiMatrix, on
behalf of itself and each other member of the CombiMatrix Group, on the other
hand, hereby releases and forever discharges the other party and its
Subsidiaries, and its and their respective officers, directors, agents, record
and beneficial security holders (including trustees and beneficiaries of trusts
holding such securities), advisors and Representatives (in each case, in their
respective capacities as such) and their respective heirs, executors,
administrators, successors and assigns, of and from all debts, demands, actions,
causes of action, suits, accounts, covenants, contracts, agreements, damages,
claims and Liabilities whatsoever of every name and nature, both in law and
in
equity, which the releasing party has or ever had or ever will have, which
arise
out of or relate to events, circumstances or actions taken by such other party
occurring or failing to occur or any conditions existing at or prior to the
Time
of Distribution;
provided
,
however
,
that
the foregoing general release shall not apply to (i) any Liabilities or
other obligations (including Liabilities with respect to payment, reimbursement,
indemnification or contribution) under the Separation Agreements or assumed,
transferred, assigned, allocated or arising under any of the Separation
Agreements (including any Liability that the parties may have with respect
to
payment, performance, reimbursement, indemnification or contribution pursuant
to
any Separation Agreement for claims brought against the parties by third Persons
or any Indemnitee), and the foregoing release will not affect any party’s right
to enforce the Separation Agreements or Financing Agreements in accordance
with
their terms or (ii) any Liability arising from or relating to any
agreement, arrangement, commitment or undertaking described in
Section 2.02(b)(ii), or (iii) any Liability the release of which would
result in the release of any Person other than a Person released pursuant to
this Section 4.01 (
provided
,
that
the parties agree not to bring suit or permit any of their Subsidiaries to
bring
suit against any member of the other Group with respect to any Liability to
the
extent such member of the other Group would be released with respect to such
Liability by this Section 4.01 but for this
clause (iii)).
Each
of
Acacia and CombiMatrix acknowledges that it has been advised by its legal
counsel and is familiar with the provisions of California Civil Code
Section 1542, which provides as follows:
“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH
THE DEBTOR.”
Being
aware of such Code section, each of Acacia, on behalf of itself and each of
the
Acacia Subsidiaries, and CombiMatrix, on behalf of itself and each of the
CombiMatrix Subsidiaries, hereby expressly waives any rights it may have under
California Civil Code Section 1542, as well as any other statutes or common
law principles of similar effect.
Section
4.02
Indemnification
by Acacia
.
Subject
to the provisions of this Article IV, Acacia shall indemnify, defend and
hold harmless the CombiMatrix Indemnitees from and against, and pay or
reimburse, as the case may be, the CombiMatrix Indemnitees for, all
Indemnifiable Losses, as incurred, suffered by any CombiMatrix Indemnitee to
the
extent based upon, arising out of or relating to the following:
(a)
the
Acacia Liabilities (including the failure by Acacia or any other member of
the
Acacia Group to pay, perform or otherwise discharge the Acacia Liabilities
in
accordance with their terms), whether such Indemnifiable Losses are based upon,
arise out of or relate to events, occurrences, actions, omissions, facts,
circumstances or conditions occurring, existing or asserted before, at or after
the Time of Distribution;
(b)
the
breach by any member of the Acacia Group of any agreement or covenant contained
in a Separation Agreement which does not by its express terms expire at the
Time
of Distribution; and
(c)
the
enforcement by the CombiMatrix Indemnitees of their rights to be indemnified,
defended and held harmless under this Section 4.02.
Section
4.03
Indemnification
by CombiMatrix
.
Subject
to the provisions of this Article IV, CombiMatrix shall indemnify, defend
and hold harmless the Acacia Indemnitees from and against, and pay or reimburse,
as the case may be, the Acacia Indemnitees for, all Indemnifiable Losses, as
incurred, suffered by any Acacia Indemnitee to the extent based upon, arising
out of or relating to the following:
(a)
the
CombiMatrix Liabilities (including the failure by CombiMatrix or any other
member of the CombiMatrix Group to pay, perform or otherwise discharge the
CombiMatrix Liabilities in accordance with their terms), whether such
Indemnifiable Losses are based upon, arise out of or relate to events,
occurrences, actions, omissions, facts, circumstances or conditions occurring,
existing or asserted before, at or after the Time of Distribution;
(b)
any
untrue statement or alleged untrue statement of a material fact contained in
the
Registration Statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except in each case with respect to
information relating to the Acacia Group provided by Acacia expressly for use
in
the Registration Statement;
(c)
the
breach by any member of the CombiMatrix Group of any agreement or covenant
contained in a Separation Agreement which does not by its express terms expire
at the Time of Distribution;
the
use
by members of the CombiMatrix Group of any names, trademarks, trade names,
domain names, service marks or corporate symbols or logos pursuant to
Section 5.02; and
the
enforcement by the Acacia Indemnitees of their rights to be indemnified,
defended and held harmless under this Section 4.03.
Section
4.04
Limitations
on Indemnification Obligations
.
(a)
The
amount which any party (an “Indemnifying Party”) is or may be required to pay to
an Indemnitee in respect of Indemnifiable Losses or other Liability for which
indemnification is provided under this Agreement shall be reduced by any amounts
actually received (including Insurance Proceeds actually received) by or on
behalf of such Indemnitee (net of increased insurance premiums and charges
related directly and solely to the related Indemnifiable Losses and costs and
expenses (including reasonable legal fees and expenses) incurred by such
Indemnitee in connection with seeking to collect and collecting such amounts)
in
respect of such Indemnifiable Losses or other Liability (such net amounts are
referred to herein as “Indemnity Reduction Amounts”). If any Indemnitee receives
any Indemnity Reduction Amounts in respect of an Indemnifiable Loss for which
indemnification is provided under this Agreement after the full amount of such
Indemnifiable Loss has been paid by an Indemnifying Party or after an
Indemnifying Party has made a partial payment of such Indemnifiable Loss and
such Indemnity Reduction Amounts exceed the remaining unpaid balance of such
Indemnifiable Loss, then the Indemnitee shall promptly remit to the Indemnifying
Party an amount equal to the excess (if any) of (A) the amount theretofore
paid by the Indemnifying Party in respect of such Indemnifiable Loss, less
(B) the amount of the indemnity payment that would have been due if such
Indemnity Reduction Amounts in respect thereof had been received before the
indemnity payment was made. An insurer or other third party who would otherwise
be obligated to pay any claim shall not be relieved of the responsibility with
respect thereto or, solely by virtue of the indemnification provisions hereof,
have any subrogation rights with respect thereto, it being expressly understood
and agreed that no insurer or any other third party shall be entitled to any
benefit they would not be entitled to receive in the absence of the
indemnification provisions by virtue of the indemnification provisions
hereof.
(b)
In
determining the amount of any Indemnifiable Losses, such amount shall be
(i) reduced to take into account any net Tax benefit realized by the
Indemnitee arising from the incurrence or payment by the Indemnitee of such
Indemnifiable Losses and (ii) increased to take into account any net Tax
cost incurred by the Indemnitee as a result of the receipt or accrual of
payments hereunder (grossed-up for such increase), in each case determined
by
treating the Indemnitee as recognizing all other items of income, gain, loss,
deduction or credit before recognizing any item arising from such Indemnifiable
Losses. It is the intention of the parties that indemnity payments made pursuant
to this Agreement are to be treated as relating back to the Distribution as
an
adjustment to capital (
i.e
.,
capital contribution or distribution), and the parties shall not take any
position inconsistent with such intention before any Tax Authority (as defined
in the Tax Allocation Agreement), except to the extent that a final
determination (as defined in Section 1313 of the Code) with respect to the
recipient party causes any such payment not to be so treated.
Section
4.05
Procedures
Relating to Indemnification
.
(a)
If
a
claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise
learn of an assertion, by any Person who is not a party to this Agreement (or
an
Affiliate thereof) as to which an Indemnifying Party may be obligated to provide
indemnification pursuant to this Agreement (a “Third Party Claim”), such
Indemnitee will notify the Indemnifying Party in writing, and in reasonable
detail, of the Third Party Claim reasonably promptly after becoming aware of
such Third Party Claim; provided, however, that failure to give such
notification will not affect the indemnification provided hereunder except
to
the extent the Indemnifying Party shall have been actually prejudiced as a
result of such failure. Thereafter, the Indemnitee will deliver to the
Indemnifying Party, promptly after the Indemnitee’s receipt thereof, copies of
all material notices and documents (including court papers) received or
transmitted by the Indemnitee relating to the Third Party Claim.
(b)
If
a
Third Party Claim is made against an Indemnitee, the Indemnifying Party will
be
entitled to participate in or to assume the defense thereof (in either case,
at
the expense of the Indemnifying Party) with counsel selected by the Indemnifying
Party and reasonably satisfactory to the Indemnitee.
If
the
Indemnifying Party elects to assume the defense of a Third Party Claim, the
Indemnifying Party will not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with the defense
thereof;
provided
,
that if
in the Indemnitee’s reasonable judgment a conflict of interest exists in respect
of such claim or if the Indemnifying Party shall have assumed responsibility
for
such claim with any reservations or exceptions, such Indemnitee will have the
right to employ separate counsel reasonably satisfactory to the Indemnifying
Party to represent such Indemnitee and in that event the reasonable fees and
expenses of such separate counsel (but not more than one separate counsel for
all Indemnitees similarly situated) shall be paid by such Indemnifying Party.
If
the Indemnifying Party assumes the defense of any Third Party Claim, the
Indemnitee will have the right to participate in the defense thereof and to
employ counsel, at its own expense, separate from the counsel employed by the
Indemnifying Party, it being understood that the Indemnifying Party will control
such defense. The Indemnifying Party will be liable for the fees and expenses
of
counsel employed by the Indemnitee for any period during which the Indemnifying
Party has failed to assume the defense thereof. If the Indemnifying Party
assumes the defense of any Third Party Claim, the Indemnifying Party will
promptly supply to the Indemnitee copies of all material correspondence and
documents relating to or in connection with such Third Party Claim and keep
the
Indemnitee fully informed of all material developments relating to or in
connection with such Third Party Claim (including providing to the Indemnitee
on
reasonable request updates and summaries as to the status thereof). If the
Indemnifying Party chooses to defend a Third Party Claim, the parties hereto
will cooperate in the defense thereof (such cooperation to be at the expense,
including reasonable legal fees and expenses, of the Indemnifying Party), which
cooperation shall include the retention in accordance with this Agreement and
(upon the Indemnifying Party’s request) the provision to the Indemnifying Party
of records and information which are reasonably relevant to such Third Party
Claim, and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided
hereunder.
(c)
No
Indemnifying Party will consent to any settlement, compromise or discharge
(including the consent to entry of any judgment) of any Third Party Claim
without the Indemnitee’s prior written consent (which consent will not be
unreasonably withheld);
provided
,
that if
the Indemnifying Party assumes the defense of any Third Party Claim, the
Indemnitee will agree to any settlement, compromise or discharge of such Third
Party Claim which the Indemnifying Party may recommend and which by its terms
obligates the Indemnifying Party to pay the full amount of Indemnifiable Losses
in connection with such Third Party Claim and unconditionally and irrevocably
releases the Indemnitee and its Affiliates completely from all Liability in
connection with such Third Party Claim;
provided
,
however
,
that
the Indemnitee may refuse to agree to any such settlement, compromise or
discharge (x) that provides for injunctive or other nonmonetary relief
affecting the Indemnitee or any of its Affiliates or (y) that, in the
reasonable opinion of the Indemnitee, would otherwise materially adversely
affect the Indemnitee or any of its Affiliates. Whether or not the Indemnifying
Party shall have assumed the defense of a Third Party Claim, the Indemnitee
will
not (unless required by law) admit any liability with respect to, or settle,
compromise or discharge, such Third Party Claim without the Indemnifying Party’s
prior written consent (which consent will not be unreasonably
withheld).
(d)
Any
claim
on account of Indemnifiable Losses which does not involve a Third Party Claim
will be asserted by reasonably prompt written notice given by the Indemnitee
to
the Indemnifying Party from whom such indemnification is sought. The failure
by
any Indemnitee so to notify the Indemnifying Party will not relieve the
Indemnifying Party from any liability which it may have to such Indemnitee
under
this Agreement, except to the extent that the Indemnifying Party shall have
been
actually prejudiced by such failure.
(e)
In
the
event of payment in full by an Indemnifying Party to any Indemnitee in
connection with any Third Party Claim, such Indemnifying Party will be
subrogated to and shall stand in the place of such Indemnitee as to any events
or circumstances in respect of which such Indemnitee may have any right or
claim
relating to such Third Party Claim against any claimant or plaintiff asserting
such Third Party Claim or against any other Person. Such Indemnitee will
cooperate with such Indemnifying Party in a reasonable manner, and at the cost
and expense of such Indemnifying Party, in prosecuting any subrogated right
or
claim.
Section
4.06
Remedies
Cumulative
.
Subject
to the provisions of Section 7.05, the remedies provided in this
Article IV shall be cumulative and shall not preclude assertion by any
Indemnitee of any other rights or the seeking of any and all other remedies
against any Indemnifying Party.
Section
4.07
Indemnification
Under Tax Allocation Agreement
.
Notwithstanding anything in this Agreement to the contrary, indemnification
in
respect of Tax matters will be governed exclusively by the Tax Allocation
Agreement.
Section
4.08
Expenses
.
(a)
Except
as
otherwise set forth in any Separation Agreement, (i) all Acacia Expenses
will be charged to and paid by Acacia and (ii) all CombiMatrix Expenses will
be
charged to and paid by CombiMatrix.
(b)
Within
ten days after the Distribution Date, CombiMatrix will reimburse Acacia (by
wire
transfer to a bank account designated in writing by CombiMatrix) for all amounts
in respect of CombiMatrix Expenses paid by Acacia or any of its Subsidiaries
(including Persons comprising the CombiMatrix Group) before or at the Time
of
Distribution and notified in writing by Acacia to CombiMatrix within five days
after the Distribution Date. From time to time thereafter, promptly after
Acacia’s request therefor, and in any event within ten days after any such
request, CombiMatrix will reimburse Acacia (by wire transfer to the same bank
account referred to in the preceding sentence) for all CombiMatrix Expenses
paid
by Acacia or any of its Subsidiaries before, at or after the Time of
Distribution (other than as previously reimbursed by CombiMatrix pursuant to
the
preceding sentence). Acacia will, at the request of CombiMatrix, provide
CombiMatrix with appropriate documentation to support CombiMatrix Expenses
required to be reimbursed to Acacia pursuant to this Section
4.08(b).
(c)
Within
ten days after the Distribution Date, Acacia will reimburse CombiMatrix (by
wire
transfer to a bank account designated in writing by Acacia for all amounts
in
respect of Acacia Expenses paid by CombiMatrix or any of its Subsidiaries
(including Persons comprising the Acacia Group) before or at the Time of
Distribution and notified in writing by CombiMatrix to Acacia within five days
after the Distribution Date. From time to time thereafter, promptly after
CombiMatrix’s request therefor, and in any event within ten days after any such
request, Acacia will reimburse CombiMatrix (by wire transfer to the same bank
account referred to in the preceding sentence) for all Acacia Expenses paid
by
CombiMatrix or any of its Subsidiaries before, at or after the Time of
Distribution (other than as previously reimbursed by Acacia pursuant to the
preceding sentence). CombiMatrix will, at the request of Acacia, provide Acacia
with appropriate documentation to support Acacia Expenses required to be
reimbursed to CombiMatrix pursuant to this Section 4.08(c).
(d)
Except
as
otherwise set forth in any Separation Agreement, and subject in all events
to
the provisions of Section 4.08(a), all out-of-pocket costs and expenses incurred
following the Time of Distribution in connection with implementation of the
transactions contemplated by the Separation Agreements will be charged to and
paid by the party for whose benefit the expenses are incurred, with any
out-of-pocket expenses which cannot be allocated on such basis to be split
equally between Acacia and CombiMatrix.
(e)
The
third-party costs and expenses of the Registration Statement shall be shared
between Acacia and CombiMatrix equally. Within a reasonable time Following
the
Time of Distribution and receipt of an invoice from Acacia, including any
back-up documentation reasonable requested by CombiMatrix, CombiMatrix shall
reimburse Acacia for its share of such costs and expenses.
ARTICLE
V
CERTAIN
OTHER MATTERS
Section
5.01
Insurance
.
(a)
Coverage
.
Subject
to the provisions of this Section 5.01, coverage of CombiMatrix and the
CombiMatrix Subsidiaries under all Policies shall cease as of the Time of
Distribution. From and after the Time of Distribution, CombiMatrix and the
CombiMatrix Subsidiaries will be responsible for obtaining and maintaining
all
insurance coverages in their own right.
(b)
Rights
Under Shared Policies
.
From
and after the Time of Distribution, CombiMatrix and the CombiMatrix Subsidiaries
will have no rights with respect to any Policies, except that:
(i)
CombiMatrix
will have the right to assert claims (and Acacia will use commercially
reasonable efforts to assist CombiMatrix in asserting claims) for any loss,
liability or damage with respect to CombiMatrix Assets or CombiMatrix
Liabilities under Policies with third-party insurers which are “occurrence
basis” insurance policies (“
Occurrence
Basis Policies
”)
arising out of insured incidents occurring from the date coverage thereunder
first commenced until the Time of Distribution to the extent that the terms
and
conditions of any such Occurrence Basis Policies and agreements relating thereto
so allow, and
(ii)
CombiMatrix
will have the right to continue to prosecute claims with respect to CombiMatrix
Assets or CombiMatrix Liabilities properly asserted with an insurer prior to
the
Time of Distribution (and Acacia will use commercially reasonable efforts to
assist CombiMatrix in connection therewith) under Policies with third-party
insurers which are insurance policies written on a “claims made” basis
(“
Claims
Made Policies
”)
arising out of insured incidents occurring from the date coverage thereunder
first commenced until the Time of Distribution to the extent that the terms
and
conditions of any such Claims Made Policies and agreements relating thereto
so
allow,
provided
,
that in
the case of both clauses (i) and (ii) above, (A) all of Acacia’s and each
Acacia Subsidiary’s reasonable out-of-pocket costs and expenses incurred in
connection with the foregoing are promptly paid by CombiMatrix, (B) Acacia
and the Acacia Subsidiaries may, at any time, without liability or obligation
to
CombiMatrix or any CombiMatrix Subsidiary(other than as set forth in
Section 5.01(c)), amend, commute, terminate, buy-out, extinguish liability
under or otherwise modify any Occurrence Basis Policies or Claims Made Policies
(and such claims shall be subject to any such amendments, commutations,
terminations, buy-outs, extinguishments and modifications), (C) such claims
will be subject to (and recovery thereon will be reduced by the amount of)
any
applicable deductibles, retentions or self-insurance provisions, (D) such
claims will be subject to (and recovery thereon will be reduced
by
the
amount of) any payment or reimbursement obligations of Acacia, any Acacia
Subsidiary or any Affiliate of Acacia or any Acacia Subsidiary in respect
thereof and (E) such claims will be subject to exhaustion of existing
aggregate limits. In the event that claims submitted by Acacia and CombiMatrix
exhaust existing aggregate limits in any one policy year, the amount payable
under the Policies shall be allocated pro rata based on the amounts paid in
satisfaction of such claims or the amounts that would have been paid to satisfy
such claims absent exhaustion of Policy limits. To the extent the amount paid
to
CombiMatrix or Acacia, as the case may be, in satisfaction of claims exceeds
its
pro rata portion, CombiMatrix or Acacia, as the case may be, shall pay to the
other party an amount equal to such excess. Acacia’s obligation to use
commercially reasonable efforts to assist CombiMatrix in asserting claims under
applicable Policies will include using commercially reasonable efforts in
assisting CombiMatrix to establish its right to coverage under such Policies
(so
long as all of Acacia’s reasonable out-of-pocket costs and expenses in
connection therewith are promptly paid by CombiMatrix). None of Acacia or the
Acacia Subsidiaries will bear any Liability for the failure of an insurer to
pay
any claim under any Policy. It is understood that any Claims Made Policies
will
not provide any coverage to CombiMatrix and the CombiMatrix Subsidiaries for
incidents occurring prior to the Time of Distribution but which are asserted
with the insurance carrier after the Time of Distribution. If a claim or claims
submitted by CombiMatrix are paid under any Policy during any policy year in
which no claim or claims are paid to Acacia, and Acacia’s annual premium
increases in the next policy year in respect of the Policy, then the full amount
of such premium increase in the first policy year after such CombiMatrix claim
or claims are paid shall be deemed to be attributable to the CombiMatrix claim
or claims and charged to CombiMatrix. Promptly (and in no event later than
ten
(10) Business Days) after receipt of a written request by Acacia, CombiMatrix
shall reimburse Acacia for the full amount of such annual premium increase.
If
claims submitted by both Acacia and CombiMatrix are paid under the same Policy
during any policy year, and Acacia’s annual premium increases in the next policy
year in respect of the Policy, then the amount of the premium increase will
be
allocated between Acacia and CombiMatrix based on the amount of the claims
paid
to each party during the prior policy year. Promptly (and in no event later
than
ten (10) Business Days) after receipt of a written request by Acacia,
CombiMatrix shall reimburse Acacia for its pro rata portion.
(c)
Acacia
Actions
.
If,
after the Time of Distribution, Acacia or any Acacia Subsidiary proposes to
amend, commute, terminate, buy-out, extinguish liability under or otherwise
modify any Policies under which CombiMatrix has rights to assert claims pursuant
to Section 5.01(b) in a manner that would adversely affect any such rights
of CombiMatrix, (i) Acacia will give CombiMatrix prior notice thereof and
consult with CombiMatrix with respect to such action (it being understood that
the decision to take any such action will be in the sole discretion of Acacia)
and (ii) Acacia will pay to CombiMatrix its equitable share (which shall be
determined by Acacia in good faith based on the amount of premiums paid by
or
allocated to the CombiMatrix Business in respect of the applicable Policy)
of
any net proceeds actually received by Acacia from the insurer under the
applicable Policy as a result of such action by Acacia (after deducting Acacia’s
reasonable costs and expenses incurred in connection with such
action).
(d)
Administration
.
From
and after the Time of Distribution:
(i)
Acacia
or
an Acacia Subsidiary will be responsible for the Claims Administration with
respect to claims of Acacia and the Acacia Subsidiaries under Policies;
and
(ii)
CombiMatrix
or a CombiMatrix Subsidiary will be responsible for the Claims Administration
with respect to claims of CombiMatrix and the CombiMatrix Subsidiaries under
Policies.
(e)
Insurance
Premiums
.
From
and after the Time of Distribution, Acacia will pay all premiums
(retrospectively-rated or otherwise) as required under the terms and conditions
of the respective Policies in respect of periods prior to the Time of
Distribution, whereupon CombiMatrix will, upon the request of Acacia, promptly
reimburse Acacia for that portion of such premiums paid by Acacia as are
reasonably determined by Acacia to be attributable to the CombiMatrix
Business.
(f)
Agreement
for Waiver of Conflict and Shared Defense
.
In the
event that a Policy provides coverage for both Acacia and/or an Acacia
Subsidiary, on the one hand, and CombiMatrix and/or a CombiMatrix Subsidiary,
on
the other hand, relating to the same occurrence, Acacia and CombiMatrix agree
to
defend jointly and to waive any conflict of interest necessary to the conduct
of
that joint defense. Nothing in this Section 5.01(f) will be construed to
limit or otherwise alter in any way the indemnity obligations of the parties
to
this Agreement, including those created by this Agreement, by operation of
law
or otherwise.
Section
5.02
Use
of
Names, Trademarks, etc.
(a)
From
and
after the Time of Distribution, subject to Section 5.02(b), Acacia will own
all rights of Acacia or any of its Subsidiaries in, and to the use of, the
Acacia Marks.
(b)
From
and
after the Time of Distribution, except as permitted in this
Section 5.02(b), the CombiMatrix Group will not use or have any rights to
the Acacia Marks or any name, mark or symbol confusingly similar thereto, or
any
special script, type font, form, style, logo, design, device, trade dress or
symbol which contains, represents or evokes the Acacia Marks or any name or
mark
confusingly similar thereto. From and after the Time of Distribution, the
CombiMatrix Group will not hold itself out as having any affiliation with the
Acacia Group.
(c)
No
member
of the CombiMatrix Group shall have any right, title or interest in, or to
the
use of the Acacia Marks, either alone or in combination with any other word,
name, symbol, device, trademarks, or any combination thereof. Anything contained
herein to the contrary notwithstanding, in no event will any member of the
CombiMatrix Group use the Acacia Marks as a component of a company or trade
name. CombiMatrix will not, and will cause each other member of the CombiMatrix
Group not to, challenge or contest the validity of the Acacia Marks, the
registration thereof or the ownership thereof by the Acacia Group. CombiMatrix
will not, and will cause each other member of the CombiMatrix Group not to,
apply anywhere at any time for any registration as owner or exclusive licensee
of the Acacia Marks. If, notwithstanding the foregoing, any member of the
CombiMatrix Group develops, adopts or acquires, directly or indirectly, any
right, title or interest in, or to the use of, any Acacia Marks in any
jurisdiction, or any goodwill incident thereto, CombiMatrix will, and will
cause
the CombiMatrix Subsidiaries, upon the request of Acacia, and for a nominal
consideration of one dollar, assign or cause to be assigned to Acacia or any
designee of Acacia, all right, title and interest in, and to the use of, such
Acacia Marks in any and all jurisdictions, together with any goodwill incident
thereto.
CombiMatrix
hereby constitutes and appoints Acacia the true and lawful attorney of
CombiMatrix and its Subsidiaries to act as their attorney-in-fact to execute
any
documents and to take all necessary steps to cause CombiMatrix and its
Subsidiaries to perform any of their obligations set forth in this
Section 5.02(c),
provided
,
however
,
that
Acacia will provide CombiMatrix sixty days written notice prior to executing
such documents or commencing such steps.
Section
5.03
CombiMatrix
Warrants
.
(a)
Effective
as of the Time of Distribution, CombiMatrix will issue to each holder of a
May
2003 Warrant a warrant to purchase shares of CombiMatrix Common Stock (the
“
CombiMatrix/May
2003 Warrant
”),
pursuant to the equitable adjustment and other provisions of such May 2003
Warrant. The number of shares of CombiMatrix Common Stock subject to the
CombiMatrix/May 2003 Warrant and the per-share exercise price of the
CombiMatrix/May 2003 Warrant will be determined as set forth in the May 2003
Warrant. The CombiMatrix/May 2003 Warrant will otherwise have substantially
the
same terms and conditions as the May 2003 Warrant, except that references to
Acacia will be changed to refer to CombiMatrix.
(b)
Effective
as of the Time of Distribution, CombiMatrix will issue to each holder of the
Piper 2005 Warrant a warrant to purchase shares of CombiMatrix Common Stock
(the
“CombiMatrix/Piper 2005 Warrant”), pursuant to the equitable adjustment and
other provisions of such Piper 2005 Warrant. The number of shares of CombiMatrix
Common Stock subject to the CombiMatrix/Piper 2005 Warrant and the per-share
exercise price of the CombiMatrix/Piper 2005 Warrant will be determined as
set
forth in the Piper 2005 Warrant. The CombiMatrix/Piper 2005 Warrant will
otherwise have substantially the same terms and conditions as the Piper 2005
Warrant, except that references to Acacia will be changed to refer to
CombiMatrix.
(c)
Effective
as of the Time of Distribution, CombiMatrix will issue to each holder of the
Oppenheimer Warrant a warrant to purchase shares of CombiMatrix Common Stock
(the “
CombiMatrix/Oppenheimer
Warrant
”),
pursuant to the equitable adjustment and other provisions of such Oppenheimer
Warrant. The number of shares of CombiMatrix Common Stock subject to the
CombiMatrix/Oppenheimer Warrant and the per-share exercise price of the
CombiMatrix/Oppenheimer Warrant will be determined as set forth in the
Oppenheimer Warrant. The CombiMatrix/Oppenheimer Warrant will otherwise have
substantially the same terms and conditions as the Oppenheimer Warrant, except
that references to Acacia will be changed to refer to CombiMatrix.
ARTICLE
VI
ACCESS
TO
INFORMATION
Section
6.01
Provision
of Corporate Records
.
Prior
to or as promptly as practicable after the Time of Distribution, Acacia shall
deliver to CombiMatrix all minute books and other records of meetings of the
Board of Directors, committees of the Board of Directors and stockholders of
the
CombiMatrix Group and all corporate books and records of the CombiMatrix Group
in its possession, including, in each case, all active agreements and active
litigation files. From and after the Time of Distribution, all such books and
records shall be the property of CombiMatrix. Prior to or as promptly as
practicable after the Time of Distribution, CombiMatrix shall deliver to Acacia
all corporate books and records of the Acacia Group in CombiMatrix’s possession
(other than the books and records described in the first sentence of this
Section 6.01), including, in each case, all active agreements and active
litigation files. From and after the Time of Distribution, all such books and
records shall be the property of Acacia.
Section
6.02
Access
to
Information
.
(a)
From
and
after the Time of Distribution, Acacia will, and will cause each Acacia
Subsidiary to, afford to CombiMatrix and its Representatives (at CombiMatrix’s
expense) reasonable access and duplicating rights during normal business hours
and upon reasonable advance notice to all Information within the Acacia Group’s
possession or control relating to CombiMatrix, any CombiMatrix Subsidiary,
any
CombiMatrix Asset, any CombiMatrix Liability or the CombiMatrix Business,
insofar as such access is reasonably required by CombiMatrix or any CombiMatrix
Subsidiary, subject to the provisions below regarding Privileged
Information.
(b)
From
and
after the Time of Distribution, CombiMatrix will, and will cause each
CombiMatrix Subsidiary to, afford to Acacia and its Representatives (at Acacia’s
expense) reasonable access and duplicating rights during normal business hours
and upon reasonable advance notice to all Information within the CombiMatrix
Group’s possession or control relating to Acacia, any Acacia Subsidiary, any
Acacia Asset, any Acacia Liability or the Acacia Business, insofar as such
access is reasonably required, by Acacia or any Acacia Subsidiary, subject
to
the provisions below regarding Privileged Information.
(c)
Without
limiting the foregoing, Information may be requested under this Article VI
for audit, accounting, claims, litigation, insurance, environmental and safety
and tax purposes, as well as for purposes of fulfilling disclosure and reporting
obligations and for performing this Agreement and the transactions contemplated
hereby.
In
furtherance of the foregoing:
(i)
Each
party acknowledges that (A) each of Acacia and CombiMatrix (and the members
of the Acacia Group and the CombiMatrix Group, respectively) has or may obtain
Privileged Information; (B) there are or may be a number of Actions
affecting one or more of the members of the Acacia Group and the CombiMatrix
Group; (C) the parties may have a common legal interest in Actions, in the
Privileged Information, and in the preservation of the confidential status
of
the Privileged Information; and (D) each of Acacia and CombiMatrix intends
that the transactions contemplated by the Separation Agreements and any transfer
of Privileged Information in connection therewith shall not operate as a waiver
of any potentially applicable privilege.
(ii)
Each
of
Acacia and CombiMatrix agrees, on behalf of itself and each member of the Group
of which it is a member, not to disclose or otherwise waive any privilege
attaching to any Privileged Information relating to the business of the other
Group or relating to or arising in connection with the relationship between
the
Groups on or prior to the Time of Distribution, without providing prompt written
notice to and obtaining the prior written consent of the other, which consent
will not be unreasonably withheld. In the event of a disagreement between any
member of the Acacia Group and any member of the CombiMatrix Group concerning
the reasonableness of withholding such consent, no disclosure will be made
prior
to a final, nonappealable resolution of such disagreement by a court of
competent jurisdiction.
(iii)
Upon
any
member of the Acacia Group or any member of the CombiMatrix Group receiving
any
subpoena or other compulsory disclosure notice from a court, other Governmental
Entity or otherwise which requests disclosure of Privileged Information, in
each
case relating to the business of the other Group or relating to or arising,
in
connection with the relationship between the Groups on or prior to the Time
of
Distribution, the recipient of the notice will promptly provide to the other
party (following the notice provisions set forth herein) a copy of such notice,
the intended response, and a description of all materials or information
relating to the other Group that might be disclosed. In the event of a
disagreement as to the intended response or disclosure, unless and until the
disagreement is resolved as provided in Section 6.02(c)(ii), the parties
will cooperate to assert all defenses to disclosure claimed by either Group,
at
the cost and expense of the Group claiming such defense to disclosure, and
shall
not disclose any disputed documents or information until all legal defenses
and
claims of privilege have been finally determined.
Section
6.03
Production
of Witnesses
.
Subject
to Section 6.02, after the Time of Distribution, each of Acacia and
CombiMatrix will, and will cause each member of the Acacia Group and the
CombiMatrix Group, respectively, to, make available to the other party and
members of such other party’s Group, upon written request and at the cost and
expense of the party so requesting, its directors, officers, employees and
agents as witnesses to the extent that any such Person may reasonably be
required (giving consideration to business demands of such directors, officers,
employees and agents) in connection with any Actions, administrative or other
proceedings in which the requesting party may from time to time be involved
and
relating to the business of either Group or relating to or arising in connection
with the relationship between the Groups on or prior to the Time of
Distribution,
provided
that the
same shall not unreasonably interfere with the conduct of business by the Group
of which the request is made.
Section
6.04
Retention
of Records
.
Except
as otherwise required by law or agreed to by the parties in writing, if any
Information relating to the pre-Distribution business, Assets or Liabilities
of
a member of a Group is retained by a member of the other Group, each of Acacia
and CombiMatrix will, and will cause the members of the Group of which it is
a
member to, retain for the period required by the applicable Acacia records
retention policy in effect immediately prior to the Time of Distribution all
such Information in such Group’s possession or under its control. In addition,
if, prior to the scheduled date for destruction or disposal of such Information
under the applicable Acacia records retention policy, Acacia or CombiMatrix,
on
behalf of any member of its Group, requests in writing that any of the
Information scheduled to be destroyed or disposed of be delivered to such
requesting party, the party whose Group is scheduled to destroy or dispose
of
such Information will arrange for the delivery of the requested Information
to a
location specified by, and at the expense of, the requesting party, at or about
the time such Information would have otherwise been destroyed or disposed
of.
Section
6.05
Confidentiality
.
Subject
to the provisions of Section 6.02, which shall govern Privileged
Information, from and after the Time of Distribution, each of Acacia and
CombiMatrix shall hold, and shall use reasonable efforts to cause members of
its
Group and its and their Affiliates and Representatives to hold, in strict
confidence all Information concerning the other party’s Group in its possession
or control prior to the Time of Distribution or furnished to it by such other
party’s Group pursuant to the Separation Agreements or the transactions
contemplated thereby and will not release or disclose such Information to any
other Person, except members of its Group and its and their Representatives,
who
will be bound by the provisions of this Section 6.05;
provided
,
however
,
that
any member of the Acacia Group or the CombiMatrix Group may disclose such
Information to the extent that (a) disclosure is compelled by judicial or
administrative process or, in the opinion of such Person’s counsel, by other
requirements of law (in which case the party required to make such disclosure
will notify the other party as soon as practicable of such obligation or
requirement and cooperate with the other party (at the expense of the other
party) to limit the Information required to be disclosed and to obtain a
protective order or other appropriate remedy with respect to the Information
ultimately disclosed) or (b) such Person can show that such Information was
(i) available to such Person on a nonconfidential basis (other than from a
member of the other party’s Group) prior to its disclosure by such Person,
(ii) in the public domain through no fault of such Person or
(iii) lawfully acquired by such Person from another source after the time
that it was furnished to such Person by the other party’s Group, and not
acquired from such source subject to any confidentiality obligation on the
part
of such source known to the acquiror, or on the part of the acquiror. Each
party
acknowledges that it will be liable for any breach of this Section 6.05 by
its Affiliates, Representatives and Subsidiaries. Notwithstanding the foregoing,
each of Acacia and CombiMatrix will be deemed to have satisfied its obligations
under this Section 6.05 with respect to any Information (other than
Privileged Information) if it exercises the same care with regard to such
Information as it takes to preserve confidentiality for its own similar
Information.
ARTICLE
VII
MISCELLANEOUS
Section
7.01
Entire
Agreement; Construction
.
This
Agreement and the Separation Agreements, including any annexes, schedules and
exhibits hereto or thereto, and other agreements and documents referred to
herein and therein, will together constitute the entire agreement between the
parties with respect to the subject matter hereof and thereof and will supersede
all prior negotiations, agreements and understandings of the parties of any
nature, whether oral or written, with respect to such subject matter.
Notwithstanding any other provisions in the Separation Agreements to the
contrary, (i) if and to the extent that there is a conflict between the
provisions of this Agreement and the provisions of the Employee Matters
Agreement or the Tax Allocation Agreement, the provisions of the Employee
Matters Agreement or the Tax Allocation Agreement, as appropriate, will control
and (ii) in the event and to the extent that there is a conflict between
the provisions of this Agreement and the provisions of any Conveyance
Instruments, the provisions of this Agreement will control.
Section
7.02
Survival
of Agreements
.
Except
as otherwise contemplated by the Separation Agreements (including
Section 7.13 of this Agreement), all covenants and agreements of the
parties contained in the Separation Agreements will remain in full force and
effect and survive the Time of Distribution. The obligations of each of Acacia
and CombiMatrix under Article IV will not terminate at any time and will
survive the sale or other transfer by any party of any assets or businesses
or
the assignment by any party of any Liabilities with respect to any Indemnifiable
Losses of the other related to such assets, businesses or
Liabilities.
Section
7.03
Governing
Law
.
This
Agreement will be governed by and construed in accordance with the internal
laws
of the State of California applicable to contracts made and to be performed
entirely within such State, without regard to the conflicts of law principles
of
such State.
Section
7.04
Notices
.
All
notices, requests, claims, demands and other communications required or
permitted to be given hereunder will be in writing and will be delivered by
hand
or telecopied, e-mailed or sent, postage prepaid, by registered, certified
or
express mail or reputable overnight courier service and will be deemed given
when so delivered by hand or telecopied, when e-mail confirmation is received
if
delivered by e-mail, or three Business Days after being so mailed (one Business
Day in the case of express mail or overnight courier service). All such notices,
requests, claims, demands and other communications will be addressed as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
If
to
Acacia:
Acacia
Research Corporation
500
Newport Center Dr., 7th Floor
Newport
Beach, California 92660
Attention
:
Paul
Ryan,
President
Telecopy
:
(949)
480-8390
E-mail
:
prr@acaciares.com
with
a
copy to:
Acacia
Research Corporation
500
Newport Center Dr., 7th Floor
Newport
Beach, California 92660
Attention
:
Robert
Berman, Esq.
Chief
Operating Officer and General Counsel
Telecopy
:
(949)
480-8390
E-mail
:
rberman@acaciares.com
If
to
CombiMatrix:
CombiMatrix
Corporation
6500
Harbour Heights Parkway, Suite 301
Mukilteo,
WA 98275
Attention
:
Amit
Kumar
Chief
Executive Officer
Telecopy
:
(425)
493-2060
E-mail
:
akumar@combimatrix.com
Section
7.05
Dispute
Resolution
.
In the
event that from and after the Time of Distribution any dispute, claim or
controversy (collectively, a “
Dispute
”)
arises
out of or relates to this Agreement, the Employee Matters Agreement or the
Tax
Allocation Agreement or any transaction contemplated thereby or the breach,
performance, enforcement or validity or invalidity of any thereof, the designees
of the Acacia Chief Executive Officer and the CombiMatrix Chief Executive
Officer will attempt a good faith resolution of the Dispute within thirty days
after either party notifies the other party in writing of the Dispute. If the
Dispute is not resolved within thirty days of the receipt of the notification,
or within such other time as they may agree, the Dispute will be referred for
resolution to the Acacia Chief Executive Officer and the CombiMatrix Chief
Executive Officer. Should they be unable to resolve the Dispute within thirty
days following the referral to them, or within such other time as they may
agree, Acacia and CombiMatrix will then attempt in good faith to resolve such
Dispute by mediation in accordance with the then-existing CPR Mediation
Procedures promulgated by the CPR Institute for Dispute Resolution. If such
mediation is unsuccessful within sixty days after commencement thereof, any
party to the Dispute may pursue any other remedies available to it.
Section
7.06
Consent
to Jurisdiction
.
Each of
Acacia and CombiMatrix irrevocably submits to the exclusive jurisdiction of
(i) the Superior Court of the State of California, Orange County and
(ii) the United States District Court for the Central District of
California, for the purposes of any suit, action or other proceeding arising
out
of this Agreement, the Employee Matters Agreement or the Tax Allocation
Agreement or any transaction contemplated thereby or the breach, performance,
enforcement or validity or invalidity of any thereof (and agrees not to commence
any action, suit or proceeding relating thereto except in such courts). Each
of
Acacia and CombiMatrix further agrees that service of any process, summons,
notice or document hand delivered or sent by U.S. registered mail to such
party’s respective address set forth in Section 7.04 will be effective
service of process for any action, suit or proceeding in California with respect
to any matters to which it has submitted to jurisdiction as set forth in the
immediately preceding sentence. Each of Acacia and
CombiMatrix
irrevocably and unconditionally waives any objection to the laying of venue
of
any action, suit or proceeding arising out of this Agreement, the Employee
Matters Agreement or the Tax Allocation Agreement or the transactions
contemplated thereby or the breach, performance, enforcement or validity
or
invalidity of any thereof in (i) the Superior Court of the State of
California, Orange County or (ii) the United States District Court for the
Central District of California, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such Court
that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Notwithstanding the foregoing, each party agrees
that
a final judgment in any action, suit or proceeding so brought shall be
conclusive and may be enforced by suit on the judgment in any jurisdiction
or in
any other manner provided in law or in equity.
Section
7.07
Amendments
.
This
Agreement cannot be amended, modified or supplemented except by a written
agreement executed by Acacia and CombiMatrix.
Section
7.08
Assignment
.
Except
as otherwise provided herein, neither party will convey, assign or otherwise
transfer any of its rights or obligations under this Agreement without the
prior
written consent of the other party in its sole and absolute discretion.
Notwithstanding the foregoing, either party may (without obtaining any consent)
assign all or any portion of its rights and obligations hereunder to
(i) the surviving entity resulting from a merger or consolidation involving
such party, (ii) the acquiring entity in a sale or other disposition of all
or substantially all of the assets of such party as a whole or of any line
of
business or division of such party, or (iii) any other Person that is
created as a result of a spin-off from, or similar reorganization transaction
of, such party or any line of business or division of such party. In the event
of an assignment pursuant to (ii) or (iii) above, the non-assigning party shall,
at the assigning party’s request, use good faith commercially reasonable efforts
to enter into separate agreements with each of the resulting entities and take
such further actions as may be reasonably required to assure that the rights
and
obligations under this Agreement are preserved, in the aggregate, and divided
equitably between such resulting entities. Any conveyance, assignment or
transfer requiring the prior written consent of another party pursuant to this
Section 7.08 which is made without such consent will be void
ab
initio
.
No
assignment of this Agreement will relieve the assigning party of its obligations
hereunder.
Section
7.09
Captions;
Currency
.
The
article, section and paragraph captions herein and the table of contents hereto
are for convenience of reference only, do not constitute part of this Agreement
and will not be deemed to limit or otherwise affect any of the provisions
hereof. Unless otherwise specified, all references herein to numbered articles
or sections are to articles and sections of this Agreement and all references
herein to schedules are to schedules to this Agreement. Unless otherwise
specified, all references contained in this Agreement, in any schedule referred
to herein or in any instrument or document delivered pursuant hereto to dollars
or “$” shall mean United States Dollars.
Section
7.10
Severability
.
If any
provision of this Agreement or the application thereof to any Person or
circumstance is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof, or the application
of
such provision to Persons or circumstances other than those as to which it
has
been held invalid or unenforceable, will remain in full force and effect and
will in no way be affected, impaired or invalidated thereby. If the economic
or
legal substance of the transactions contemplated hereby is affected in any
manner adverse to any party as a result thereof, the parties will negotiate
in
good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
Section
7.11
Parties
in Interest
.
This
Agreement is binding upon and is for the benefit of the parties hereto and
their
respective successors and permitted assigns. This Agreement is not made for
the
benefit of any Person not a party hereto, and no Person other than the parties
hereto or their respective successors and permitted assigns will acquire or
have
any benefit, right, remedy or claim under or by reason of this Agreement, except
that the provisions of Sections 4.02 and 4.03 shall inure to the benefit of
and shall be enforceable by the Persons referred to therein.
Section
7.12
Schedules
.
All
schedules attached hereto are hereby incorporated in and made a part of this
Agreement as if set forth in full herein. Capitalized terms used in the
schedules hereto but not otherwise defined therein will have the respective
meanings assigned to such terms in this Agreement.
Section
7.13
Termination
.
This
Agreement may be terminated and the Distribution abandoned at any time prior
to
the Time of Distribution by and in the sole discretion of the Acacia Board
without the approval of CombiMatrix or Acacia’s shareowners. In the event of
such termination, neither party will have any liability of any kind to the
other
party on account of such termination.
Section
7.14
Waivers;
Remedies
.
The
conditions to Acacia’s obligation to consummate the Distribution are for the
sole benefit of Acacia and may be waived in writing by Acacia in whole or in
part in Acacia’s sole discretion. No failure or delay on the part of either
Acacia or CombiMatrix in exercising any right, power or privilege hereunder
will
operate as a waiver thereof, nor will any waiver on the part of either Acacia
or
CombiMatrix of any right, power or privilege hereunder operate as a waiver
of
any other right, power or privilege hereunder, nor will any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder. Subject to Section 7.05, the rights and remedies herein provided
are cumulative and are not exclusive of any rights or remedies which the parties
may otherwise have at law or in equity.
Section
7.15
Further
Assurances
.
From
time to time after the Time of Distribution, as and when requested by either
party hereto, the other party shall execute and deliver, or cause to be executed
and delivered, all such documents and instruments and shall take, or cause
to be
taken, all such actions as the requesting party may reasonably request to
consummate the transactions contemplated by the Separation
Agreements.
Section
7.16
Counterparts
.
This
Agreement may be executed in separate counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts will together
constitute the same agreement. This Agreement may be executed and delivered
by
telecopier with the same force and effect as if it were a manually executed
and
delivered counterpart.
Section
7.17
Performance
.
Acacia
will cause to be performed and hereby guarantees the performance of all actions,
agreements and obligations set forth herein to be performed by any Acacia
Subsidiary. CombiMatrix will cause to be performed and hereby guarantees the
performance of all actions, agreements and obligations set forth herein to
be
performed by any CombiMatrix Subsidiary.
Section
7.18
Interpretation
.
Any
reference herein to any federal, state, local, or foreign law shall be deemed
also to refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. For the purposes of this Agreement, (a) words
in the singular shall be held to include the plural and
vice
versa
and
words of one gender shall be held to include the other gender as the context
requires, (b) the terms “hereof”, “herein”, and “herewith” and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement
and
(c) the word “including” and words of similar import when used in this
Agreement shall mean “including, without limitation”.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.]
[Signature
page to Distribution Agreement]
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly
authorized officers of the parties as of the date first hereinabove
written.
|
ACACIA
RESEARCH CORPORATION
By:
/s/ Paul Ryan
Name:
Paul
Ryan
Title:
Chief
Executive Officer,
|
|
COMBIMATRIX
CORPORATION
Name:
Amit
Kumar
Title:
Chief
Executive Officer
|
Schedule
1.01(a)
Acacia
Liabilities
Audio/Video
Enhancement and Synchronization Technology
Image
Resolution Enhancement Technology
·
|
IP
Innovation, LLC and Technology Licensing Corporation v. Lexmark
International, Inc. United States District Court for the Northern
District
of Illinois. Filed 10/23/02. Case No.
1:02-cv-07611.
|
·
|
New
Medium Technologies, LLC and AV Technologies, LLC v. Barco NV, Miranda
Technologies, LG Philips LCD, Toshiba Corporation, Toshiba America
Consumer Products, L.L.C., LG Electronics, Inc., and Syntax-Brillian
Corporation. United States District Court for the Northern District
of
Illinois. Filed 9/29/05. Case No. 1:05-cv-05620.
|
Broadcast
Data Retrieval Technology
·
|
Broadcast
Data Retrieval Corporation v. Sirius Satellite Radio, Inc. Transferred
to
United States District Court for the Southern District of New York
7/6/06.
Case No. 1:06-cv-05135.
|
Computer
Memory Cache Coherency Technology
·
|
Computer
Cache Coherency Corporation v. VIA Technologies, Inc., Via Technologies,
Inc. (USA) and Intel Corporation. United States District Court for
the
Northern District of California. Filed 12/2/04. Case No. 5:05-cv-01668.
|
Credit
Card Fraud Control Technology
·
|
Ingenio
Inc. v. Acacia Patent Acquisition Corporation and Acacia Research
Corporation. United States District Court for the Northern District
of
California. Filed 10/13/06. Case No.
3:06-cv-06423.
|
Credit
Card Fraud Protection Technology
·
|
Financial
Systems Innovation, LLC and Paul N. Ware v. Gap, Inc., Racetrac Petroleum,
Inc. and The Kroger Company. United States District Court for the
Northern
District of Georgia. Filed 3/3/04. Case No.
4:04-cv-00065.
|
·
|
Financial
Systems Innovation, LLC and Paul N. Ware v. Williams-Sonoma, Inc.,
Linens
N Things, Inc. and Costco Wholesale Corporation. United States District
Court for the Northern District of Texas. Filed 6/30/04. Case No.
4:04-cv-00479.
|
·
|
Financial
Systems Innovation, LLC and Paul N. Ware v. Circuit City Stores,
Inc.,
Officemax Incorporated, Staples, Inc., Cracker Barrel Old Country
Store,
Inc., Fry’s Electronics, Inc., and Rite Aid Corporation. United States
District Court for the Northern District of Georgia. Filed 7/19/05.
Case
No. 4:05-cv-00156.
|
·
|
Reinalt-Thomas
Corporation, dba Discount Tire Corporation, v. Acacia Research
Corporation, Paul N. Ware and Financial Systems Innovation, LLC.
United
States District Court for the District of Arizona. Filed 10/27/05.
Case
No. 2:05-cv-03459.
|
·
|
Financial
Systems Innovation, LLC and Paul Ware v. Discount Tire Company of
Georgia,
Inc. and Reinalt-Thomas Corporation, dba Discount Tire Company. United
States District Court for the Northern District of Georgia. Filed
11/21/05. Case No. 4:05-cv-00252.
|
·
|
Lone
Star Steakhouse and Saloon, Inc. v. Acacia Technologies group and
Financial Systems Innovation, LLC. United States District Court for
the
District of Kansas. Filed 8/5/05. Case No.
6:05-cv-01249.
|
Computing
Device Performance Technology
·
|
Computer
Acceleration Corporation vs. Microsoft Corporation. United States
District
Court for the Eastern District of Texas. Filed 7/6/06. Case No.
9:06-cv-0140.
|
Data
Encryption Technology
·
|
Data
Encryption Corporation v. Microsoft Corporation and Dell Computer
Corporation. United States District Court for the Central District
of
California. On appeal to the U.S. Court of Appeals for the Federal
Court.
Lower Court Case No. 2:05-cv-05531.
|
Digital
Media Transmission Technology
In
accordance with the Transfer Order issued February 24, 2005, by the Judicial
Panel on Multidistrict Litigation, all of the following Digital Media
Transmission Technology cases have been transferred to the Northern District
of
California. The lead case number is 5:05-cv-01114.
·
|
Acacia
Media Technologies Corporation v. Comcast Cable Communications, LLC,
Charter Communications, Inc., The DirectTV Group, Inc., Echostar
Communications Corporation, Cox Communications, Inc., Hospitality
Network,
Inc. (a wholly owned subsidiary of Cox that supplies hotel on-demand
TV
services), Mediacom, LLC, Armstrong Group, Arvig Communication Systems,
Block Communications, Inc., Cable America Corporation, Cable One,
Inc.,
Cannon Valley Communications, Inc., East Cleveland Cable TV and
Communications, LLC, Loretel Cablevision, Massillon Cable TV, Inc.,
Mid-Continent Media, Inc., NPG Cable, Inc., Savage Communications,
Inc.,
Sjoberg's Cablevision, Inc., US Cable Holdings LP, and Wide Open
West,
LLC, Time Warner Cable, Cablevision Systems Corporation, Insight
Communications Company, Cebridge Communications and Bresnan
Communications.
|
·
|
Acacia
Media Technologies Corporation v. New Destiny Internet Group, Inc.,
Audio
Communications Inc., VS Media Inc., Ademia Multimedia, LLC, International
Web Innovations, Inc., Offendale Commercial BV, Ltd., Adult Entertainment
Broadcast Network, Cybertrend, Inc., Lightspeed Media Corporation,
Adult
Revenue Services, Innovative Ideas International, AskCS.com, Game
Link,
Inc., Club Jenna, Inc., Cybernet Ventures, Inc., ACMP, LLC, Global
AVS,
Inc. d/b/a DrewNet, and National A-1 Advertising.
|
High
Resolution Optics Technology
·
|
Theodore
Whitney and High Resolution Optics Corporation v. The United States.
United States Court of Federal Claims. Filed 8/23/06. Case No.
1:06-cv-00601.
|
Interactive
Television Technology
·
|
Broadcast
Innovation, LLC and IO Research, Ltd. v. Charter Communications,
Inc.
United States District Court for the District of Colorado. Case No.
1:03-cv-02223. On appeal to the U.S. Court of Appeals for the Federal
Court from 9/28/04 to 11/21/05. Remanded to the U. S. District Court
for
further proceedings on 11/21/05.
|
·
|
Broadcast
Innovation, LLC v. Echostar Communications Corporation. United States
District Court for the District of Colorado. Filed 11/9/01. Case
No.
1:01-cv-02201.
|
Laptop
Connectivity Technology
·
|
Computer
Docking Station Corporation v. Dell, Inc., Gateway, Inc., Toshiba
America,
Inc., and Toshiba America Information Systems, Inc.. United States
District Court for the Western District of Wisconsin. Filed 1/17/06.
Case
No. 06-c-0032-c
|
Micromesh
Technology
·
|
Micromesh
Technology Corporation v. American Recreation Productions, Inc.,
and
American Recreation Products, Inc., dba Kelty. United States District
Court for the Northern District of California. Filed 9/27/06. Case
No.
3:06-cv-06030.
|
·
|
Micromesh
Technology Corporation v. Columbia Sportswear Company. United States
District Court for the Northern District of California. Filed 9/27/06.
Case No.3:06-cv-06031.
|
·
|
Micromesh
Technology Corporation v. Red Wing Shoe Company and Red Wing Shoe
Company,
dba Vasque. United States District Court for the Eastern District
of
Texas. Filed 10/4/06. Case No.
2:06-cv-00421.
|
·
|
Micromesh
Technology Corporation v. VF Corporation, VF Corporation, dba JanSport,
VF
Outdoor, Inc., dba The North Face. United States District Court for
the
Eastern District of Texas. Filed 10/4/06. Case No.
2:06-cv-00422.
|
Microprocessor
Enhancement Technology
·
|
Microprocessor
Enhancement Corporation and Michael H. Branigin v. Texas Instruments,
Incorporated. United States District Court for the Central District
of
California. Filed 4/7/05. Case No.
8:05-cv-00323.
|
·
|
Microprocessor
Enhancement Corporation and Michael H. Branigin v. Intel Corporation.
United States District Court for the Central District of California.
Filed
8/3/05. Case No. 2:05-cv-05667.
|
Multi-Dimensional
Bar Code Technology
·
|
Cognex
Corporation v. VCode Holdings, Inc., VData LLC, Acacia Research
Corporation, and Veritec Inc. United States District Court for the
District of Minnesota. Filed 3/13/06. Case No.
0:06-cv-01040.
|
·
|
VData
LLC and VCode Holdings, Inc. v. Aetna, Inc., PNY Technologies Inc.,
and
Merchant’s Credit Guide Co. United States District Court for the District
of Minnesota. Filed 5/8/06. Case No. 0:06-cv-01701.
|
Peer
to Peer Communications Technology
·
|
Peer
Communications Corporation v. Skype Technologies SA, Skype, Inc.,
and
eBay, Inc. United States District Court for the Eastern District
of Texas.
Filed 8/22/06. Case No.
6:06-cv-00370.
|
Product
Activation Technology
·
|
Product
Activation Corporation v. Abbyy USA Software House, Inc., Adobe Systems
Incorporated, Autodesk, Inc. United States District Court for the
Eastern
District of Texas. Filed 8/14/06 Case No. 2:06-cv-00326.
|
Resource
Scheduling Technology
·
|
Epic
Systems Corporation v. Acacia Research Corporation and Resource Scheduling
Corporation. United States District Court for the District of Delaware.
Filed 4/19/06. Case No. 1:06-cv-00255.
|
Spreadsheet
Automation Technology
·
|
Spreadsheet
Automation Corporation v. Microsoft Corporation. United States District
Court for the Eastern District of Texas. Filed 3/28/05. Case No.
2:05-cv-00127.
|
User
Activated Internet Advertising Technology
·
|
InternetAd
Systems, LLC v. Turner Broadcasting System, Inc., Freerealtime.com,
Inc.,
Knight Ridder Digital, Homestore, Inc., Condenet, Inc. and Tribune
Company. United States District Court for the Northern District of
Texas.
Filed 6/15/06. Case No. 3:06-cv-01063.
|
·
|
InternetAd
Systems, LLC v. Opodo Limited, Amadeus Global Travel Distribution
S.A.,
Amadeus North America, LLC, and Opentable, Inc. United States District
Court for the Northern District of Texas. Filed 6/19/06. Case No.
3:06-cv-01084.
|
Schedule
1.01(b)
Bylaws
AMENDED
AND RESTATED BYLAWS
OF
COMBIMATRIX
CORPORATION
a
Delaware corporation
AMENDED
AND RESTATED BYLAWS
OF
COMBIMATRIX
CORPORATION
ARTICLE
1
OFFICES
Section
1.1
Registered
Office.
The
registered office of the corporation in the State of Delaware shall be in the
City of Wilmington, County of New Castle.
Section
1.2
Other
Offices.
The
corporation may also have and maintain an office or principal place of business,
or offices at such other places, both within and without the State of Delaware
as the Board of Directors may from time to time determine or the business of
the
corporation may require.
ARTICLE
2
STOCKHOLDERS’
MEETINGS
Section
2.1
Place
of Meetings.
(a)
Meetings
of stockholders may be held at such place, either within or without this State,
as may be designated by or in the manner provided in these bylaws or, if not
so
designated, as determined by the Board of Directors. The Board of Directors
may,
in its sole discretion, determine that the meeting shall not be held at any
place, but may instead be held solely by means of remote communication as
authorized by paragraph (b) of this
Section
2.1
.
(b)
If
authorized by the Board of Directors in its sole discretion, and subject to
such
guidelines and procedures as the Board of Directors may adopt, stockholders
and
proxyholders not physically present at a meeting of stockholders may, by means
of remote communication:
(1)
Participate
in a meeting of stockholders; and
(2)
Be
deemed
present in person and vote at a meeting of stockholders whether such meeting
is
to be held at a designated place or solely by means of remote communication,
provided that (A) the corporation shall implement reasonable measures to verify
that each person deemed present and permitted to vote at the meeting by means
of
remote communication is a stockholder or proxyholder, (B) the corporation shall
implement reasonable measures to provide such stockholders and proxyholders
a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings,
and
(C) if any stockholder or proxyholder votes or takes other action at the meeting
by means of remote communication, a record of such vote or other action shall
be
maintained by the corporation.
(c)
For
purposes of this
Section
2.1
,
“remote
communication” shall include (1) telephone or other voice communications
and (2) electronic mail or other form of written or visual electronic
communications, provided that the requirements of the Delaware General
Corporation Law are satisfied.
Section
2.2
Annual
Meetings.
The
annual meetings of the stockholders of the corporation, for the purpose of
election of directors and for such other business as may lawfully come before
it, shall be held on such date and at such time as may be designated from time
to time by the Board of Directors, or, if not so designated, then at 10:00
a. m.
on May 31 in each year if a business day and not a legal holiday, and, if a
legal holiday, at the same hour and place on the next succeeding business day
not a holiday.
Section
2.3
Special
Meetings.
Special
Meetings of the stockholders of the corporation may be called, for any purpose
or purposes, by the Chairman of the Board, the President or the Board of
Directors at any time.
Section
2.4
Notice
of Meetings.
(a)
Except
as
otherwise provided by law or the Certificate of Incorporation, written notice
of
each meeting of stockholders, specifying the place, if any, date and hour and
purpose or purposes of the meeting, and the means of remote communication,
if
any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such meeting, shall be given not less than 10 nor more than
60 days before the date of the meeting to each stockholder entitled to vote
thereat, directed to his address as it appears upon the books of the
corporation; except that where the matter to be acted on is a merger or
consolidation of the Corporation or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than 20
nor
more than 60 days prior to such meeting.
(b)
If
at any
meeting action is proposed to be taken which, if taken, would entitle
shareholders fulfilling the requirements of section 262(d) of the Delaware
General Corporation Law to an appraisal of the fair value of their shares,
the
notice of such meeting shall contain a statement of that purpose and to that
effect and shall be accompanied by a copy of that statutory
section.
(c)
When
a
meeting is adjourned to another time or place, notice need not be given of
the
adjourned meeting if the time, place, if any, thereof, and the means of remote
communication, if any, by which stockholders and proxyholders may be deemed
to
be present in person and vote at such adjourned meeting, are announced at the
meeting at which the adjournment is taken unless the adjournment is for more
than thirty days, or unless after the adjournment a new record date is fixed
for
the adjourned meeting, in which event a notice of the adjourned meeting shall
be
given to each stockholder of record entitled to vote at the
meeting.
(d)
Notice
of
the time, place and purpose of any meeting of stockholders may be waived in
writing, either before or after such meeting, and, to the extent permitted
by
law, will be waived by any stockholder by his attendance thereat, in person
or
by proxy. Any stockholder so waiving notice of such meeting shall be bound
by
the proceedings of any such meeting in all respects as if due notice thereof
had
been given.
(e)
Without
limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the corporation under any
provision of Delaware General Corporation Law, the certificate of incorporation,
or these bylaws shall be effective if given by a form of electronic
transmission. Notice given pursuant to this subparagraph (e) shall be deemed
given: (1) if by facsimile telecommunication, when directed to a number at
which
the stockholder has consented to receive notice; (2) if by electronic mail,
when
directed to an electronic mail address at which the stockholder has consented
to
receive notice; (3) if by a posting on an electronic network together with
separate notice to the stockholder of such specific posting, upon the later
of
(A) such posting and (B) the giving of such separate notice; and (4) if by
any
other form of electronic transmission, when directed to the stockholder. An
affidavit of the secretary or an assistant secretary or of the transfer agent
or
other agent of the corporation that the notice has been given by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein. For purposes of these bylaws, “electronic
transmission” means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be retained,
retrieved and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated
process.
Section
2.5
Quorum
and Voting.
(a)
At
all
meetings of stockholders except where otherwise provided by law, the Certificate
of Incorporation or these Bylaws, the presence, in person or by proxy duly
authorized, of the holders of a majority of the outstanding shares of stock
entitled to vote shall constitute a quorum for the transaction of business.
Shares, the voting of which at said meeting have been enjoined, or which for
any
reason cannot be lawfully voted at such meeting, shall not be counted to
determine a quorum at said meeting. In the absence of a quorum, any meeting
of
stockholders may be adjourned, from time to time, by vote of the holders of
a
majority of the shares represented thereat, but no other business shall be
transacted at such meeting. At such adjourned meeting at which a quorum is
present or represented, any business may be transacted which might have been
transacted at the original meeting. The stockholders present at a duly called
or
convened meeting at which a quorum is present may continue to transact business
until adjournment, notwithstanding the withdrawal of enough stockholders to
leave less than a quorum.
(b)
Except
as
otherwise provided by law, the Certificate of Incorporation or these Bylaws,
all
action taken by the holders of a majority of the voting power represented at
any
meeting at which a quorum is present shall be valid and binding upon the
corporation.
Section
2.6
Voting
Rights.
(a)
Except
as
otherwise provided by law, only persons in whose names shares entitled to vote
stand on the stock records of the corporation on the record date for determining
the stockholders entitled to vote at said meeting shall be entitled to vote
at
such meeting. Shares standing in the names of two or more persons shall be
voted
or represented in accordance with the determination of the majority of such
persons, or, if only one of such persons is present in person or represented
by
proxy, such person shall have the right to vote such shares and such shares
shall be deemed to be represented for the purpose of determining a
quorum.
(b)
Every
person entitled to vote or to execute consents shall have the right to do so
either in person or by an agent or agents authorized by a written proxy executed
by such person or his duly authorized agent, which proxy shall be filed with
the
Secretary of the corporation at or before the meeting at which it is to be
used.
Said proxy so appointed need not be a stockholder. No proxy shall be voted
on
after three (3) years from its date unless the proxy provides for a longer
period. Unless and until voted, every proxy shall be revocable at the pleasure
of the person who executed it or of his legal representatives or assigns, except
in those cases where an irrevocable proxy permitted by statute has been
given.
(c)
Without
limiting the manner in which a stockholder may authorize another person or
persons to act for him as proxy pursuant to subsection
(b)
of this
section, the following shall constitute a valid means by which a stockholder
may
grant such authority:
(1)
A
stockholder may execute a writing authorizing another person or persons to
act
for him as proxy. Execution may be accomplished by the stockholder or his
authorized officer, director, employee or agent signing such writing or causing
his or her signature to be affixed to such writing by any reasonable means
including, but not limited to, by facsimile signature.
(2)
A
stockholder may authorize another person or persons to act for him as proxy
by
transmitting or authorizing the transmission of a telephone, telegram,
cablegram, email or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be
the
holder of the proxy to receive such transmission, provided that any such
telephone, telegram, cablegram, email or other means of electronic transmission
must either set forth or be submitted with information from which it can be
determined that the telephone, telegram, cablegram or other electronic
transmission was authorized by the stockholder. Such authorization can be
established by the signature of the stockholder on the proxy, either in writing
or by a signature stamp or facsimile signature, or by a number or symbol from
which the identity of the stockholder can be determined, or by any other
procedure deemed appropriate by the inspectors or other persons making the
determination as to due authorization.
(3)
If
it is
determined that such telegrams, cablegrams, emails or other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such
other persons making that determination shall specify the information upon
which
they relied.
(d)
Any
copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to subsection
(c)
of this
section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
Section
2.7
Voting
Procedures and Inspectors of Elections.
(a)
The
corporation shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report thereof. The
corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act
at a
meeting of stockholders, the person presiding at the meeting shall appoint
one
or more inspectors to act at the meeting. Each inspector, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector with strict impartiality and according to the best
of
his ability.
(b)
The
inspectors shall (i) ascertain the number of shares outstanding and the voting
power of each, (ii) determine the shares represented at a meeting and the
validity of proxies and ballots, (iii) count all votes and ballots,
(iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors,
and
(v) certify their determination of the number of shares represented at the
meeting and their count of all votes and ballots. The inspectors may appoint
or
retain other persons or entities to assist the inspectors in the performance
of
the duties of the inspectors.
(c)
The
date
and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting shall be announced at the meeting by
the
person presiding over the meeting. The board of directors may adopt by
resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the board of directors, the person
presiding over any meeting of stockholders shall have the right and authority
to
convene and to adjourn the meeting, to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such presiding person,
are appropriate for the proper conduct of the meeting. Such rules, regulations
or procedures, whether adopted by the board of directors or prescribed by the
presiding person of the meeting, may include, without limitation, the following:
(i) the establishment of an agenda or order of business for the meeting; (ii)
rules and procedures for maintaining order at the meeting and the safety of
those present; (iii) limitations on attendance at or participation in the
meeting to stockholders of record of the corporation, their duly authorized
and
constituted proxies or such other persons as the presiding person of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. The presiding person at any meeting
of
stockholders, in addition to making any other determinations that may be
appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding person should so determine,
such presiding person shall so declare to the meeting and any such matter or
business not properly brought before the meeting shall not be transacted or
considered. Unless and to the extent determined by the board of directors or
the
person presiding over the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary
procedure.
(d)
In
determining the validity and counting of proxies and ballots, the inspectors
shall be limited to an examination of the proxies, any envelopes submitted
with
those proxies, any information provided in accordance with Sections 211(e)
or
212(c)(2) of the Delaware General Corporation Law, or any information provided
pursuant to Section 211(a)(2)(B)(i) or (iii) thereof, ballots and the regular
books and records of the corporation, except that the inspectors may consider
other reliable information for the limited purpose of reconciling proxies and
ballots submitted by or on behalf of banks, brokers, their nominees or similar
persons which represent more votes than the holder of a proxy is authorized
by
the record owner to cast or more votes than the stockholder holds of record.
If
the inspectors consider other reliable information for the limited purpose
permitted herein, the inspectors at the time they make their certification
pursuant to subsection
(b)
(v)
of
this section shall specify the precise information considered by them including
the person or persons from whom they obtained the information, when the
information was obtained, the means by which the information was obtained and
the basis for the inspectors’ belief that such information is accurate and
reliable.
Section
2.8
List
of Stockholders.
The
officer who has charge of the stock ledger of the corporation shall prepare
and
make, at least ten days before every meeting of stockholders, a complete list
of
the stockholders entitled to vote at said meeting, arranged in alphabetical
order, showing the address of and the number of shares registered in the name
of
each stockholder. The corporation need not include electronic mail addresses
or
other electronic contact information on such list. Such list shall be open
to
the examination of any stockholder for any purpose germane to the meeting for
a
period of at least 10 days prior to the meeting: (i) on a reasonably
accessible electronic network, provided that the information required to gain
access to such list is provided with the notice of the meeting, or
(ii) during ordinary business hours at the principal place of business of
the corporation. In the event that the corporation determines to make the list
available on an electronic network, the corporation may take reasonable steps
to
ensure that such information is available only to stockholders of the
corporation. If the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If the meeting
is to be held solely by means of remote communication, then the list shall
also
be open to the examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of the
meeting.
Section
2.9
Stockholder
Proposals at Annual Meetings.
At
an
annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors, otherwise properly brought before the meeting by or at the direction
of the Board of Directors, or otherwise properly brought before the meeting
by a
stockholder. In addition to any other applicable requirements for business
to be
properly brought before an annual meeting by a stockholder, the stockholder
must
have given timely notice thereof in writing to the Secretary of the corporation.
To
be
timely
a stockholder’s notice must be delivered to or mailed and received at the
principal executive offices of the corporation not less than 120 days nor
more
than 180 days prior to the date on which the corporation first mailed its
proxy
materials for the previous year’s annual meeting of stockholders (or the date on
which the corporation mails its proxy materials for the current year if during
the prior year the corporation did not hold an annual meeting or if the date
of
the annual meeting was changed more than 30 days from the prior year). A
stockholder’s notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting
and
the reasons for conducting such business at the annual meeting, (ii) the
name and record address of the stockholder proposing such business,
(iii) the class and number of shares of the corporation which are
beneficially owned by the stockholder, and (iv) any material interest of
the stockholder in such business.
Notwithstanding
anything in the Bylaws to the contrary, no business shall be conducted at the
annual meeting except in accordance with the procedures set forth in
Section
2.1
and this
Section
2.9
,
provided, however, that nothing in this
Section
2.9
shall be
deemed to preclude discussion by any stockholder of any business properly
brought before the annual meeting in accordance with said
procedure.
The
Chairman of an annual meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the meeting in
accordance with the provisions of
Section
2.1
and this
Section
2.9
,
and if
he should so determine he shall so declare to the meeting, and any such business
not properly brought before the meeting shall not be transacted.
Nothing
in this
Section
2.9
shall
affect the right of a stockholder to request inclusion of a proposal in the
corporation’s proxy statement to the extent that such right is provided by an
applicable rule of the Securities and Exchange Commission.
Section
2.10
Nominations
of Persons for Election to the Board of Directors.
In
addition to any other applicable requirements, only persons who are nominated
in
accordance with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of
the
corporation may be made at a meeting of stockholders by or at the direction
of
the Board of Directors, by any nominating committee or person appointed by
the
Board of Directors or by any stockholder of the corporation entitled to vote
for
the election of directors at the meeting who complies with the notice procedures
set forth in this
Section
2.10
.
Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the corporation. To be timely, a stockholder’s notice must be delivered to or
mailed and received at the principal executive offices of the corporation,
not
less than 80 days nor more than 120 days prior to the date on which the
corporation first mailed its proxy materials for the previous year’s annual
meeting of shareholders (or the date on which the corporation mails its proxy
materials for the current year if during the prior year the corporation did
not
hold an annual meeting or if the date of the annual meeting
was
changed more than 30 days from the prior year). Such stockholder’s notice shall
set forth (a) as to each person whom the stockholder proposes to nominate
for election or re-election as a director, (i) the name, age, business
address and residence address of the person, (ii) the principal occupation
or employment of the person, (iii) the class and number of shares of the
corporation which are beneficially owned by the person, and (iv) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Rule 14a
under the Securities Exchange Act of 1934; and (b) as to the stockholder
giving the notice, (i) the name and record address of the stockholder, and
(ii) the class and number of shares of the corporation which are
beneficially owned by the stockholder. The corporation may require any proposed
nominee to furnish such other information as may reasonably be required by
the
corporation to determine the eligibility of such proposed nominee to serve
as a
director of the corporation. No person shall be eligible for election as
a
director of the corporation unless nominated in accordance with the procedures
set forth herein. These provisions shall not apply to nomination of any persons
entitled to be separately elected by holders of preferred
stock.
The
Chairman of the meeting shall, if the facts warrant, determine and declare
to
the meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the meeting
and
the defective nomination shall be disregarded.
Section
2.11
Action
Without Meeting.
Any
action that is required or permitted to be taken by the stockholders of the
Corporation at any annual or special meeting of the stockholders may be effected
by written consent of the stockholders in lieu of a meeting of
stockholders.
ARTICLE
3
DIRECTORS
Section
3.1
Number
and Term of Office.
The
number of directors of the corporation shall not be less than five (5) nor
more
than nine (9) until changed by amendment of the Certificate of Incorporation
or
by a Bylaw amending this
Section
3.1
duly
adopted in accordance with
ARTICLE
11
hereof.
The exact number of directors shall be fixed from time to time, within the
limits specified in the Certificate of Incorporation or in this
Section
3.1
,
by the
Board of Directors or by a bylaw or amendment thereof duly adopted in accordance
with
ARTICLE
11
hereof.
Subject to the foregoing provisions for changing the number of directors, the
number of directors of the corporation has been fixed at five (5).
Section
3.2
Powers.
The
powers of the corporation shall be exercised, its business conducted and its
property controlled by or under the direction of the Board of
Directors.
Section
3.3
Vacancies.
Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, and each director
so elected shall hold office for the unexpired portion of the term of the
director whose place shall be vacant and until his successor shall have been
duly elected and qualified. A vacancy in the Board of Directors shall be deemed
to exist under this section in the case of the death, removal or resignation
of
any director, or if the stockholders fail at any meeting of stockholders at
which directors are to be elected (including any meeting referred to in
Section
3.4
below)
to elect the number of directors then constituting the whole Board.
Section
3.4
Resignations
and Removals.
(a)
Any
director may resign at any time by delivering his resignation to the Secretary
in writing or by electronic transmission, such resignation to specify whether
it
will be effective at a particular time, upon receipt by the Secretary or at
the
pleasure of the Board of Directors. If no such specification is made it shall
be
deemed effective at the pleasure of the Board of Directors. When one or more
directors shall resign from the Board effective at a future date, a majority
of
the directors then in office, including those who have so resigned, shall have
power to fill such vacancy or vacancies, the vote thereon to take effect when
such resignation or resignations shall become effective, and each director
so
chosen shall hold office for the unexpired portion of the term of the director
whose place shall be vacated and until his successor shall have been duly
elected and qualified.
(b)
At
a
special meeting of stockholders called for the purpose in the manner hereinabove
provided, the Board of Directors or any individual director may be removed
from
office, with or without cause, and a new director or directors elected by a
vote
of stockholders holding a majority of the outstanding shares entitled to vote
at
an election of directors.
Section
3.5
Meetings.
(a)
The
annual meeting of the Board of Directors shall be held immediately after the
annual stockholders’ meeting and at the place where such meeting is held or at
the place announced by the Chairman at such meeting. No notice of an annual
meeting of the Board of Directors shall be necessary, and such meeting shall
be
held for the purpose of electing officers and transacting such other business
as
may lawfully come before it.
(b)
Except
as
hereinafter otherwise provided, regular meetings of the Board of Directors
shall
be held in the office of the corporation required to be maintained pursuant
to
Section
1.2
of
ARTICLE
1
hereof.
Regular meetings of the Board of Directors may also be held at any place, within
or without the State of Delaware, which has been designated by resolutions
of
the Board of Directors or the written consent of all directors.
(c)
Special
meetings of the Board of Directors may be held at any time and place within
or
without the State of Delaware whenever called by the Chairman of the Board
or,
if there is no Chairman of the Board, by the President, or by any of the
directors.
(d)
Written
notice of the time and place of all regular and special meetings of the Board
of
Directors shall be delivered personally to each director or sent by telegram
or
facsimile transmission or other form of electronic transmission at least
24 hours before the start of the meeting, or sent by first class mail at
least 120 hours before the start of the meeting. Notice of any meeting may
be waived in writing at any time before or after the meeting and will be waived
by any director by attendance thereat.
Section
3.6
Quorum
and Voting.
(a)
A
quorum
of the Board of Directors shall consist of a majority of the exact number of
directors fixed from time to time in accordance with
Section
3.1
of
ARTICLE
3
of these
Bylaws, but not less than one; provided, however, at any meeting whether a
quorum be present or otherwise, a majority of the directors present may adjourn
from time to time until the time fixed for the next regular meeting of the
Board
of Directors, without notice other than by announcement at the
meeting.
(b)
At
each
meeting of the Board at which a quorum is present, all questions and business
shall be determined by a vote of a majority of the directors present, unless
a
different vote be required by law, the Certificate of Incorporation, or these
Bylaws.
(c)
Any
member of the Board of Directors, or of any committee thereof, may participate
in a meeting by means of conference telephone or other communication equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting by such means shall constitute presence in person
at such meeting.
(d)
The
transactions of any meeting of the Board of Directors, or any committee thereof,
however called or noticed, or wherever held, shall be as valid as though had
at
a meeting duly held after regular call and notice if a quorum be present and
if,
either before or after the meeting, each of the directors not present shall
sign
a written waiver of notice, or a consent to holding such meeting, or an approval
of the minutes thereof. All such waivers, consents or approvals shall be filed
with the corporate records or made a part of the minutes of the
meeting.
Section
3.7
Action
Without Meeting.
Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if all
members of the Board or of such committee, as the case may be, consent thereto
in writing or by electronic transmission, and such writing or writings or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board or committee. Such filing shall be in paper form if
the
minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
Section
3.8
Fees
and Compensation.
Directors
and members of committees may receive such compensation, if any, for their
services, and such reimbursement for expenses, as may be fixed or determined
by
resolution of the Board of Directors.
Section
3.9
Committees.
(a)
Executive
Committee:
The
Board of Directors may appoint an Executive Committee of not less than one
member, each of whom shall be a director. The Executive Committee, to the extent
permitted by law, shall have and may exercise when the Board of Directors is
not
in session all powers of the Board in the management of the business and affairs
of the corporation, except such committee shall not have the power or authority
to amend these Bylaws or to approve or recommend to the stockholders any action
which must be submitted to stockholders for approval under the General
Corporation Law.
(b)
Other
Committees:
The
Board
of Directors may, from time to time appoint such other committees as may be
permitted by law. Such other committees appointed by the Board of Directors
shall have such powers and perform such duties as may be prescribed by the
resolution or resolutions creating such committee, but in no event shall any
such committee have the powers denied to the Executive Committee in these
Bylaws.
(c)
Term:
The
members of all committees of the Board of Directors shall serve a term
coexistent with that of the Board of Directors which shall have appointed such
committee. The Board, subject to the provisions of subsections (a)
or (b) of this
Section
3.8
,
may at
any time increase or decrease the number of members of a committee or terminate
the existence of a committee; provided that no committee shall consist of less
than one member. The membership of a committee member shall terminate on the
date of his death or voluntary resignation, but the Board may at any time for
any reason remove any individual committee member and the Board may fill any
committee vacancy created by death, resignation, removal or increase in the
number of members of the committee. The Board of Directors may designate one
or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee, and, in addition, in
the
absence or disqualification of any member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or
not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
(d)
Meetings:
Unless
the Board of Directors shall otherwise provide, regular meetings of the
Executive Committee or any other committee appointed pursuant to this
Section
3.8
shall be
held at such times and places as are determined by the Board of Directors,
or by
any such committee, and when notice thereof has been given to each member of
such committee, no further notice of such regular meetings need be given
thereafter; special meetings of any such committee may be held at the principal
office of the corporation required to be maintained pursuant to
Section
1.2
of
ARTICLE
1
hereof;
or at any place which has been designated from time to time by resolution of
such committee or by written consent of all members thereof, and may be called
by any director who is a member of such committee upon written notice to the
members of such committee of the time and place of
such
special meeting given in the manner provided for the giving of written notice
to
members of the Board of Directors of the time and place of special meetings
of
the Board of Directors. Notice of any special meeting of any committee may
be
waived in writing at any time after the meeting and will be waived by any
director by attendance thereat. A majority of the authorized number of members
of any such committee shall constitute a quorum for the transaction of business,
and the act of a majority of those present at any meeting at which a quorum
is
present shall be the act of such committee.
ARTICLE
4
OFFICERS
Section
4.1
Officers
Designated.
The
officers of the corporation shall be a Chief Executive Officer, who shall be
the
President of the corporation, a Chief Financial Officer, who shall be the
Treasurer of the corporation, a Secretary and a Chief Operating Officer. The
Board of Directors or the Chief Executive Officer may also appoint a Chairman
of
the Board, one or more Vice-Presidents, assistant secretaries, assistant
treasurers, and such other officers and agents with such powers and duties
as it
or he shall deem necessary. The order of the seniority of the Vice- Presidents
shall be in the order of their nomination unless otherwise determined by the
Board of Directors. The Board of Directors may assign such additional titles
to
one or more of the officers as they shall deem appropriate. Any one person
may
hold any number of offices of the corporation at any one time unless
specifically prohibited therefrom by law. The salaries and other compensation
of
the officers of the corporation shall be fixed by or in the manner designated
by
the Board of Directors.
Section
4.2
Tenure
and Duties of Officers.
(a)
General:
All
officers shall hold office at the pleasure of the Board of Directors and until
their successors shall have been duly elected and qualified, unless sooner
removed. Any officer elected or appointed by the Board of Directors may be
removed at any time by the Board of Directors. If the office of any officer
becomes vacant for any reason, the vacancy may be filled by the Board of
Directors. Nothing in these Bylaws shall be construed as creating any kind
of
contractual right to employment with the corporation.
(b)
Duties
of the Chairman of the Board of Directors:
The
Chairman of the Board of Directors (if there be such an officer appointed)
when
present shall preside at all meetings of the stockholders and the Board of
Directors. The Chairman of the Board of Directors shall perform such other
duties and have such other powers as the Board of Directors shall designate
from
time to time.
(c)
Duties
of Chief Executive Officer (President):
The
Chief Executive Officer shall be the President of the corporation and shall
preside at all meetings of the stockholders and at all meetings of the Board
of
Directors, unless the Chairman of the Board of Directors has been appointed
and
is present. The Chief Executive Officer shall perform such other duties and
have
such other powers as the Board of Directors shall designate from time to
time.
(d)
Duties
of Chief Financial Officer (Treasurer):
The
Chief Financial Officer shall be the Treasurer of the corporation. The Chief
Financial Officer shall keep or cause to be kept the books of account of the
corporation in a thorough and proper manner, and shall render statements of
the
financial affairs of the corporation in such form and as often as required
by
the Board of Directors or the Chief Executive Officer. The Chief Financial
Officer, subject to the order of the Board of Directors, shall have the custody
of all funds and securities of the corporation. The Chief Financial Officer
shall perform all other duties commonly incident to his office and shall perform
such other duties and have such other powers as the Board of Directors or the
Chief Executive Officer shall designate from time to time. The Chief Executive
Officer may direct any assistant treasurer to assume and perform such duties
in
the absence or disability of the Chief Financial Officer, and each assistant
treasurer shall perform such other duties and have such other powers as the
Board of Directors or the Chief Executive Officer shall designate from time
to
time.
(e)
Duties
of Secretary:
The
Secretary shall attend all meetings of the stockholders and of the Board of
Directors and any committee thereof, and shall record all acts and proceedings
thereof in the minute book of the corporation, which may be maintained in either
paper or electronic form. The Secretary shall give notice, in conformity with
these Bylaws, of all meetings of the stockholders and of all meetings of the
Board of Directors and any Committee thereof requiring notice. The Secretary
shall perform such other duties and have such other powers as the Board of
Directors shall designate from time to time. The Chief Executive Officer may
direct any assistant secretary to assume and perform the duties of the Secretary
in the absence or disability of the Secretary, and each assistant secretary
shall perform such other duties and have such other powers as the Board of
Directors or the Chief Executive Officer shall designate from time to
time.
(f)
Duties
of Chief Operating Officer
.
The
Chief Operating Officer shall perform all duties commonly incident to his office
and shall perform such other duties and have such other powers as the Board
of
Directors or the Chief Executive Officer shall designate from time to
time.
ARTICLE
5
EXECUTION
OF CORPORATE INSTRUMENTS, AND
VOTING
OF SECURITIES OWNED BY THE CORPORATION
Section
5.1
Execution
of Corporate Instruments.
(a)
The
Board
of Directors may in its discretion determine the method and designate the
signatory officer or officers, or other person or persons, to execute any
corporate instrument or document, or to sign the corporate name without
limitation, except where otherwise provided by law, and such execution or
signature shall be binding upon the corporation.
(b)
nless
otherwise specifically determined by the Board of Directors or otherwise
required by law, formal contracts of the corporation, promissory notes, deeds
of
trust, mortgages and other evidences of indebtedness of the corporation, and
other corporate instruments or documents requiring the corporate seal, and
certificates of shares of stock owned by the corporation, shall be executed,
signed or endorsed by the Chairman of the Board (if there be such an officer
appointed) or by the President; such documents may also be executed by any
Vice-President and by the Secretary or Treasurer or any assistant secretary
or
assistant treasurer. All other instruments and documents requiring the corporate
signature but not requiring the corporate seal may be executed as aforesaid
or
in such other manner as may be directed by the Board of Directors.
(c)
All
checks and drafts drawn on banks or other depositaries on funds to the credit
of
the corporation or in special accounts of the corporation shall be signed by
such person or persons as the Board of Directors shall authorize so to
do.
(d)
Execution
of any corporate instrument may be effected in such form, either manual,
facsimile or electronic signature, as may be authorized by the Board of
Directors.
Section
5.2
Voting
of Securities Owned by Corporation.
All
stock
and other securities of other corporations owned or held by the corporation
for
itself or for other parties in any capacity shall be voted, and all proxies
with
respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors or, in the absence of such authorization,
by the Chairman of the Board (if there be such an officer appointed), or by
the
President, or by any Vice-President.
ARTICLE
6
SHARES
OF STOCK
Section
6.1
Form
and Execution of Certificates.
The
shares of the corporation shall be represented by certificates, provided that
the Board of Directors may provide by resolution or resolutions that some or
all
of any or all classes or series of its stock shall be uncertificated shares.
Any
such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered to the corporation. Certificates for the shares
of stock of the corporation shall be in such form as is consistent with the
Certificate of Incorporation and applicable law. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the name
of
the corporation by, the Chairman of the Board (if there be such an officer
appointed), or by the President or any Vice-President and by the Treasurer
or
assistant treasurer or the Secretary or assistant secretary, certifying the
number of shares owned by him in the corporation. Any or all of the signatures
on the certificate may be a facsimile. In case any officer, transfer agent,
or
registrar who has signed or whose facsimile signature has been placed upon
a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued with the same effect as
if
he were such officer, transfer agent,
or
registrar at the date of issue. If the corporation shall be authorized to
issue
more than one class of stock or more than one series of any class, the powers,
designations, preferences and relative, participating, optional or other
special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set
forth
in full or summarized on the face or back of the certificate which the
corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in section 202 of the Delaware General
Corporation Law, in lieu of the foregoing requirements, there may be set
forth
on the face or back of the certificate which the corporation shall issue
to
represent such class or series of stock, a statement that the corporation
will
furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or other
special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or
rights.
Section
6.2
Lost
Certificates.
The
Board
of Directors may direct a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the corporation alleged
to have been lost or destroyed, upon the making of an affidavit of that fact
by
the person claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to indemnify the corporation in
such
manner as it shall require and/or to give the corporation a surety bond in
such
form and amount as it may direct as indemnity against any claim that may be
made
against the corporation with respect to the certificate alleged to have been
lost or destroyed.
Section
6.3
Transfers.
Transfers
of record of shares of stock of the corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, and
upon
the surrender of a certificate or certificates for a like number of shares,
properly endorsed.
Section
6.4
Fixing
Record Dates.
(a)
In
order
that the corporation may determine the stockholders entitled to notice of or
to
vote at any meeting of stockholders or any adjournment thereof, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 60 nor less than 10
days
before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice
of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived,
at
the close of business on the day next preceding the date on which the meeting
is
held. A determination of stockholders of record entitled notice of or to vote
at
a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the
adjourned meeting.
(b)
In
order
that the corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such action.
If no
record date is fixed, the record date for determining stockholders for any
such
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
Section
6.5
Registered
Stockholders.
The
corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends and to
vote
as such owner, and shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by the laws of Delaware.
ARTICLE
7
OTHER
SECURITIES OF THE CORPORATION
All
bonds, debentures and other corporate securities of the corporation, other
than
stock certificates, may be signed by the Chairman of the Board (if there be
such
an officer appointed), or the President or any Vice-President or such other
person as may be authorized by the Board of Directors and the corporate seal
impressed thereon or a facsimile of such seal imprinted thereon and attested
by
the signature of the Secretary or an assistant secretary, or the Treasurer
or an
assistant treasurer; provided, however, that where any such bond, debenture
or
other corporate security shall be authenticated by the manual signature of
a
trustee under an indenture pursuant to which such bond, debenture or other
corporate security shall be issued, the signature of the persons signing and
attesting the corporate seal on such bond, debenture or other corporate security
may be the imprinted facsimile of the signatures of such persons. Interest
coupons appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the Treasurer or
an
assistant treasurer of the corporation, or such other person as may be
authorized by the Board of Directors, or bear imprinted thereon the facsimile
signature of such person. In case any officer who shall have signed or attested
any bond, debenture or other corporate security, or whose facsimile signature
shall appear thereon has ceased to be an officer of the corporation before
the
bond, debenture or other corporate security so signed or attested shall have
been delivered, such bond, debenture or other corporate security nevertheless
may be adopted by the corporation and issued and delivered as though the person
who signed the same or whose facsimile signature shall have been used thereon
had not ceased to be such officer of the corporation.
ARTICLE
8
CORPORATE
SEAL
The
corporate seal shall consist of a die bearing the name of the corporation and
the state and date of its incorporation. Said seal may be used by causing it
or
a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE
9
INDEMNIFICATION
OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
Section
9.1
Right
to Indemnification.
Each
person who was or is a party or is threatened to be made a party to or is
involved (as a party, witness, or otherwise), in any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative (hereinafter a “Proceeding”), by reason of the fact that he, or
a person of whom he is the legal representative, is or was a director, officer,
employee, or agent of the corporation or is or was serving at the request of
the
corporation as a director, officer, employee, or agent of another corporation
or
of a partnership, joint venture, trust, or other enterprise, including service
with respect to employee benefit plans, whether the basis of the Proceeding
is
alleged action in an official capacity as a director, officer, employee, or
agent or in any other capacity while serving as a director, officer, employee,
or agent (hereafter an “Agent”), shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended or interpreted (but, in
the
case of any such amendment or interpretation, only to the extent that such
amendment or interpretation permits the corporation to provide broader
indemnification rights than were permitted prior thereto) against all expenses,
liability, and loss (including attorneys’ fees, judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement, and any
interest, assessments, or other charges imposed thereon, and any federal, state,
local, or foreign taxes imposed on any Agent as a result of the actual or deemed
receipt of any payments under this Article) reasonably incurred or suffered
by
such person in connection with investigating, defending, being a witness in,
or
participating in (including on appeal), or preparing for any of the foregoing
in, any Proceeding (hereinafter “Expenses”);
provided,
however
,
that
except as to actions to enforce indemnification rights pursuant to
Section
9.3
of this
Article, the corporation shall indemnify any Agent seeking indemnification
in
connection with a Proceeding (or part thereof) initiated by such person only
if
the Proceeding (or part thereof) was authorized by the Board of Directors of
the
corporation. The right to indemnification conferred in this Article shall be
a
contract right.
Section
9.2
Authority
to Advance Expenses.
Expenses
incurred by an officer or director (acting in his capacity as such) in defending
a Proceeding shall be paid by the corporation in advance of the final
disposition of such Proceeding, provided, however, that if required by the
Delaware General Corporation Law, as amended, such Expenses shall be advanced
only upon delivery to the corporation of an undertaking by or on behalf of
such
director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the corporation as authorized
in
this Article or otherwise. Expenses incurred by other Agents of the corporation
(or by the directors or officers not acting in their capacity as such, including
service with respect to employee benefit plans) may be advanced upon such terms
and conditions as the Board of Directors deems appropriate. Any obligation
to
reimburse the corporation for Expense advances shall be unsecured and no
interest shall be charged thereon.
Section
9.3
Right
of Claimant to Bring Suit.
If
a
claim under
Section
9.1
or
Section
9.2
of this
Article is not paid in full by the corporation within 60 days after a
written claim has been received by the corporation, the claimant may at any
time
thereafter bring suit against the corporation to recover the unpaid amount
of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense (including attorneys’ fees) of prosecuting such
claim. It shall be a defense to any such action (other than an action brought
to
enforce a claim for expenses incurred in defending a Proceeding in advance
of
its final disposition where the required undertaking has been tendered to the
corporation) that the claimant has not met the standards of conduct that make
it
permissible under the Delaware General Corporation Law for the corporation
to
indemnify the claimant for the amount claimed. The burden of proving such a
defense shall be on the corporation. Neither the failure of the corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper under the circumstances
because he has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant had not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that claimant has
not
met the applicable standard of conduct.
Section
9.4
Provisions
Nonexclusive.
The
rights conferred on any person by this Article shall not be exclusive of any
other rights that such person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, agreement, vote of stockholders
or disinterested directors, or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such office. To
the
extent that any provision of the Certificate, agreement, or vote of the
stockholders or disinterested directors is inconsistent with these bylaws,
the
provision, agreement, or vote shall take precedence.
Section
9.5
Authority
to Insure.
The
corporation may purchase and maintain insurance to protect itself and any Agent
against any Expense, whether or not the corporation would have the power to
indemnify the Agent against such Expense under applicable law or the provisions
of this Article.
Section
9.6
Survival
of Rights.
The
rights provided by this Article shall continue as to a person who has ceased
to
be an Agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
Section
9.7
Settlement
of Claims.
The
corporation shall not be liable to indemnify any Agent under this Article
(a) for any amounts paid in settlement of any action or claim effected
without the corporation’s written consent, which consent shall not be
unreasonably withheld; or (b) for any judicial award if the corporation was
not given a reasonable and timely opportunity, at its expense, to participate
in
the defense of such action.
Section
9.8
Effect
of Amendment.
Any
amendment, repeal, or modification of this Article shall not adversely affect
any right or protection of any Agent existing at the time of such amendment,
repeal, or modification.
Section
9.9
Subrogation.
In
the
event of payment under this Article, the corporation shall be subrogated to
the
extent of such payment to all of the rights of recovery of the Agent, who shall
execute all papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents necessary to
enable the corporation effectively to bring suit to enforce such
rights.
Section
9.10
No
Duplication of Payments.
The
corporation shall not be liable under this Article to make any payment in
connection with any claim made against the Agent to the extent the Agent has
otherwise actually received payment (under any insurance policy, agreement,
vote, or otherwise) of the amounts otherwise indemnifiable
hereunder.
ARTICLE
10
NOTICES
Whenever,
under any provisions of these Bylaws, notice is required to be given to any
stockholder, the same shall be given either (1) in writing, timely and duly
deposited in the United States Mail, postage prepaid, and addressed to his
last known post office address as shown by the stock record of the corporation
or its transfer agent, or (2) by a means of electronic transmission that
satisfies the requirements of
Section
2.4(e)
of these
Bylaws. Any notice required to be given to any director may be given by either
of the methods hereinabove stated, except that such notice other than one which
is delivered personally, shall be sent to such address or (in the case of
electronic communication) such e-mail address, facsimile telephone number or
other form of electronic address as such director shall have filed in writing
or
by electronic communication with the Secretary of the corporation, or, in the
absence of such filing, to the last known post office address of such director.
If no address of a stockholder or director be known, such notice may be sent
to
the office of the corporation required to be maintained pursuant to
Section
1.2
of
ARTICLE
1
hereof.
An affidavit of mailing, executed by a duly authorized and competent employee
of
the corporation or its transfer agent appointed with respect to the class of
stock affected, specifying the name and address or the names and addresses
of
the stockholder or stockholders, director or directors, to whom any such notice
or notices was or were given, and the time and method of giving the same, shall
be conclusive evidence of the statements therein contained. All notices given
by
mail, as above provided, shall be deemed to have been given as at the time
of
mailing and all notices given by means of electronic transmission shall be
deemed to have been given as at the sending time recorded by the electronic
transmission equipment operator transmitting the same. It shall not be necessary
that the same method of giving notice be employed in respect of all directors,
but one permissible method may be employed in respect of any one or more, and
any other permissible method or methods may be employed in respect of any other
or others. The period or limitation of time within which any stockholder may
exercise any option or right, or enjoy any privilege or benefit, or be required
to act, or within which any director may exercise any power or right, or enjoy
any privilege, pursuant to any notice sent him in the manner above provided,
shall not be affected or extended in any manner by the failure of such a
stockholder or such director to receive such notice. Whenever any notice is
required to be given under the provisions of the statutes or of the Certificate
of Incorporation, or of these Bylaws, a waiver thereof in writing signed by
the
person or persons entitled to said notice, or a waiver by electronic
transmission by the person entitled to notice, whether before or after the
time
stated therein, shall be deemed equivalent thereto. Whenever notice is required
to be given, under any provision of law or of the Certificate of Incorporation
or Bylaws of the corporation, to any person with whom communication is unlawful,
the giving of such notice to such person shall not be required and there shall
be no duty to apply to any governmental authority or agency for a license or
permit to give such notice to such person. Any action or meeting which shall
be
taken or held without notice to any such person with whom communication is
unlawful shall have the same force and effect as if such notice had been duly
given. In the event that the action taken by the corporation is such as to
require the filing of a certificate under any provision of the Delaware General
Corporation Law, the certificate shall state, if such is the fact and if notice
is required, that notice was given to all persons entitled to receive notice
except such persons with whom communication is unlawful.
ARTICLE
11
AMENDMENTS
These
Bylaws may be repealed, altered or amended or new Bylaws adopted at any meeting
of the stockholders, either annual or special, by the affirmative vote of 66
2/3% of the stock entitled to vote at such meeting, unless a larger vote is
required by these Bylaws or the Certificate of Incorporation. The Board of
Directors shall also have the authority to repeal, alter or amend these Bylaws
or adopt new Bylaws (including, without limitation, the amendment of any Bylaws
setting forth the number of directors who shall constitute the whole Board
of
Directors) by written consent or at any annual, regular, or special meeting
by
the affirmative vote of a majority of the whole number of directors, subject
to
the power of the stockholders to change or repeal such Bylaws and provided
that
the Board of Directors shall not make or alter any Bylaws fixing the
qualifications, classifications, or term of office of directors.
CERTIFICATE
OF SECRETARY
The
undersigned Secretary of Combimatrix Corporation, a Delaware corporation, hereby
certifies that the foregoing is a full, true and correct copy of the Amended
and
Restated Bylaws of said corporation, with all amendments to date of this
Certificate.
WITNESS
the signature of the undersigned this ___ day of February, 2006.
________________________________________
__________________,
Secretary
Schedule
1.01(c)
Certificate
of Incorporation
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
COMBIMATRIX
CORPORATION
_____________________,
2006
CombiMatrix
Corporation, a corporation organized and existing under the General Corporation
Law of the State of Delaware DOES HEREBY CERTIFY:
FIRST
:
The
original Certificate of Incorporation of CombiMatrix Corporation was filed
under
the name Combi Acquisition Corp. with the Secretary of State of the State of
Delaware on March 15, 2002.
SECOND
:
Combi
Acquisition Corp. merged with and into CombiMatrix Corporation and
simultaneously changed its name to CombiMatrix Corporation via the filing of
a
Certificate of Merger with the Secretary of State of the State of Delaware
on
December 13, 2002.
THIRD
:
The
Amended and Restated Certificate of Incorporation of CombiMatrix Corporation
in
the form attached hereto as
Exhibit
A
has been
duly adopted in accordance with the provisions of Sections 242 and 245 of the
General Corporation Law of the State of Delaware by the directors and sole
stockholder of CombiMatrix Corporation.
FOURTH
:
The
Amended and Restated Certificate of Incorporation so adopted reads in full
as
set forth in
Exhibit
A
attached
hereto and is hereby incorporated herein by this reference.
IN
WITNESS WHEREOF, CombiMatrix Corporation has caused this Certificate to be
signed by its Chief Financial Officer as of the date first written
above.
|
COMBIMATRIX
CORPORATION
|
|
By:
|
/s/
Scott Burell
|
|
Name:
Title:
|
Scott
Burell
Chief
Financial Officer
|
|
|
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION
OF
COMBIMATRIX
CORPORATION
ARTICLE
I
NAME
The
name
of the corporation is CombiMatrix Corporation (the "
Corporation
").
ARTICLE
II
ADDRESS
OF REGISTERED OFFICE;
NAME
OF
REGISTERED AGENT
The
address of the registered office of the Corporation in the State of Delaware
is
Registered Agent Solutions, Inc., 15 E. North Street, City of Dover, County
of
Kent, Delaware 19901. The name of its registered agent at that address is
Registered Agent Solutions, Inc.
ARTICLE
III
PURPOSE
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation Law (the
"
DGCL
").
ARTICLE
IV
CAPITAL
STOCK
Section
1.
Authorization
.
The
total number of shares of all classes of stock that the Corporation is
authorized to issue is Two Hundred and Ten Million (210,000,000) shares,
consisting of One Hundred and Eighty Million (180,000,000) shares of Common
Stock with a par value of $.001 per share, and Thirty Million (30,000,000)
shares of Preferred Stock with a par value of $.001 per share. Upon the
effectiveness of this Amended and Restated Certificate of Incorporation, each
outstanding share of Common Stock of the Corporation shall be split and divided
into four (4) shares of Common Stock
.
No
fractional shares shall be recorded in the stock ledger of the Corporation
as a
result of the stock split provided for above. Any fractional share (a
“
Fractional
Interest
”)
that
would otherwise be issuable to a holder of Common Stock (a “
Fractional
Share Holder
”)
shall
be treated as described in the following sentence: The Fractional Interest
shall
be cancelled and the Fractional Share Holder shall be entitled to receive an
amount in cash equal to the product of the Fractional Interest to which such
Fractional Share Holder would otherwise have been entitled, multiplied by the
fair market value of one share of Common Stock immediately following the
effectiveness of the stock split provided for above, as determined by the Board
of Directors. Whether or not a Fractional Interest is to be recorded as a result
of the stock split provided for above shall be determined on the basis of the
total number of shares of Common Stock held by the record holder at the time
the
stock split occurs.
Section
2.
Preferred
Stock
.
The
Preferred Stock may be issued from time to time in one or more series, each
with
such distinctive designation as may be stated in the Certificate of
Incorporation or in any amendment hereto, or in a resolution or resolutions
providing for the issue of such stock from time to time adopted by the Board
of
Directors or a duly authorized committee thereof. The resolution or resolutions
providing for the issue of shares of a particular series shall fix, subject
to
applicable laws and the provisions of the Certificate of Incorporation, for
each
such series the number of shares constituting such series and the designation
and the voting powers, preferences and relative, participating, optional or
other special rights and the qualifications, limitations or restrictions
thereof, including, without limiting the generality of the foregoing, such
provisions as may be desired concerning voting, redemption, dividends,
dissolution or the distribution of assets, conversion or exchange, and such
other subjects or matters as may be fixed by the Board of Directors or a duly
authorized committee thereof under the DGCL. Except as otherwise required by
law, or as otherwise fixed by resolution or resolutions of the Board of
Directors with respect to one or more series of Preferred Stock, the entire
voting power and all voting rights shall be vested exclusively in the Common
Stock, and each stockholder of the Corporation who at the time possesses voting
power for any purpose shall be entitled to one vote for each share of such
stock
standing in his name on the books of the Corporation.
Section
3.
Common
Stock
.
(a)
Voting
Rights
.
Except
as may otherwise be provided in the certificate of incorporation of the
corporation (including any certificate filed with the Secretary of State of
the
State of Delaware establishing the terms of a series of Preferred Stock pursuant
to the provisions of
Article
IV
,
Section
2
hereof)
or by applicable law, each holder of Common Stock, as such, shall be entitled
to
one (1) vote for each share of Common Stock held of record by such holder on
all
matters on which stockholders generally are entitled to vote, and no holder
of
any series of Preferred Stock, as such, shall be entitled to any voting powers
in respect thereof.
(b)
Dividends
.
Subject
to applicable law and the rights, if any, of the holders of any outstanding
series of Preferred Stock provided for or fixed pursuant to the provisions
of
Article
IV
,
Section
2
hereof,
dividends may be declared and paid on the Common Stock at such times and in
such
amounts as the Board of Directors in its discretion shall
determine.
(c)
Liquidation;
Dissolution
.
Upon
the dissolution, liquidation or winding-up of the corporation, subject to
applicable law and the rights, if any, of the holders of any outstanding series
of Preferred Stock provided for or fixed pursuant to the provisions of
Article
IV
,
Section
2
hereof,
the holders of the Common Stock shall be entitled to receive the assets of
the
corporation available for distribution to its stockholders ratably in proportion
to the number of shares of Common Stock held by them.
ARTICLE
V
BOARD
OF
DIRECTORS
Section
1.
Number
of Directors and Election
.
Subject
to any rights of holders of the Corporation’s preferred stock, the number of
directors will be fixed from time to time by action of not less than a majority
of the directors then in office, but in no event shall the number of directors
be less than five (5) nor more than nine (9).
Section
2.
Powers
of the Board of Directors
.
In
furtherance, and not in limitation, of the powers conferred by the laws of
the
State of Delaware, the Board of Directors is expressly authorized to adopt,
alter, amend and repeal the Bylaws of the Corporation.
Section
3.
Removal
.
Directors may be removed, with or without cause, only upon the affirmative
vote
of holders of at least two-thirds of the voting power of all then outstanding
shares of stock entitled to vote generally in the election of directors, voting
together as a single class, subject to any rights of holders of the
Corporation’s preferred stock; provided, however, that where such action is
approved by a majority of the directors the affirmative vote of only a majority
of the holders of all outstanding shares of the Corporation’s common stock will
be required for approval of such action.
ARTICLE
VI
STOCKHOLDER
ACTIONS
Section
1.
Meetings
and Records
.
Meetings of stockholders may be held within or without the State of Delaware,
as
the Bylaws of the Corporation may provide. The books of the Corporations may
be
kept (subject to the DGCL) outside of the State of Delaware at such place or
places as may be designated from time to time by the Board of Directors or
in
the Bylaws of the Corporation.
Section
2.
Special
Meetings
.
Special
meetings of stockholders may be called at any time by the Board of Directors
or
by the Chairman of the Board of Directors, or the President, and may not be
called by any other person or persons.
Section
3.
Written
Consents
.
No
action that is required or permitted to be taken by the stockholders of the
Corporation at any annual or special meeting of the stockholders may be effected
by written consent of the stockholders in lieu of a meeting of
stockholders.
Section
4.
Vacancies
.
Subject
to the rights, if any, of the holders of any outstanding series of Preferred
Stock
as
provided for or fixed pursuant to the provisions of
Article
IVSection 2
hereof,
newly
created directorships resulting from an increase in the authorized number of
directors or any vacancies on the Board of Directors resulting from death,
resignation, retirement, disqualification, removal or other cause shall be
filled solely and exclusively by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board
of Directors. Any director so chosen shall hold office until the next election
of the class for which such director shall have been chosen and until his or
her
successor shall be elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
ARTICLE
VII
LIMITATION
ON LIABILITY OF DIRECTORS
No
person
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, including without limitation
for serving on a committee of the Board of Directors, except to the extent
such
exemption from liability or limitation thereof is not permitted under the DGCL
as the same exists or hereafter may be amended. If the DGCL is amended after
the
date of the filing of this Certificate of Incorporation to authorize corporate
action further eliminating or limiting the personal liability of directors,
then
the liability of a director of the Corporation shall be eliminated or limited
to
the fullest extent permitted by the DGCL as so amended. Any amendment, repeal
or
modification of this
Article
VII
shall
not adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to such
amendment, repeal or modification.
ARTICLE
VIII
INDEMNIFICATION
The
Corporation may indemnify to the fullest extent permitted by law any person
made
or threatened to be made a party to an action or proceeding, whether criminal,
civil, administrative or investigative, by reason of the fact that such person,
his or her testator or intestate is or was a director, officer or employee
of
the Corporation or any predecessor of the Corporation or serves or served at
any
other enterprise as a director, officer or employee at the request of the
Corporation or any predecessor to the Corporation. No amendment, repeal or
modification of this
Article
VIII
by the
stockholders shall adversely affect any right or protection of a director of
the
Corporation existing by virtue of this
Article
VIII
at the
time of such amendment, repeal or modification.
ARTICLE
IX
AMENDMENT
OF CERTIFICATE OF INCORPORATION
The
Corporation hereby reserves the right from time to time to amend, alter, change
or repeal any provision contained in the Certificate of Incorporation, and
other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed by law,
and
all rights, preferences, and privileges of whatsoever nature conferred upon
the
stockholders, directors or any other persons whomsoever by or pursuant to this
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this
Article
IX
.
ARTICLE
X
CREDITORS
Whenever
a compromise or arrangement is proposed between this Corporation and its
creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof, or on the application
of
any receiver or receivers appointed for this Corporation under the provisions
of
Section 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or
of
the stockholders or class of stockholders of this Corporation, as the case
may
be, to be summoned in such manner as the said court directs. If a majority
in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and
to
any reorganization of this Corporation as a consequence of such compromise
or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may
be,
and also on this Corporation.
Schedule
1.01(d)
CombiMatrix
Assets
1)
|
Ownership
Interest in Advanced Material Sciences,
Inc.
|
2)
|
Ownership
Interest in CombiMatrix, K.K.
|
3)
|
Any
net proceeds received by Acacia from any future settlement or disposition
of the lawsuit between Acacia Research Corporation and National
Union
|
4)
|
Any
net proceeds received by Acacia from the sale of AR-CombiMatrix stock
as
the result of a financing event or exercise of an option or warrant
to
purchase AR-CombiMatrix stock prior to the Time of
Distribution
|
[end]
Schedule
1.01(e)
CombiMatrix
Liabilities
1)
|
Dent
/ Strathmann matter
|
[end]
Schedule
1.01(f)
CombiMatrix
Property
NONE.
Schedule
1.01(g)
CombiMatrix
Subsidiaries
Advanced
Materials Sciences, Inc.
CombiMatrix
International Holdings Corp.
CombiMatrix
Molecular Diagnostics, Inc.
CombiMatrix
K.K.
Leuchemix,
Inc.
[end]
Schedule
2.01(c)
Acacia
Actions
[to
be
attached]
Schedule
2.03(a)
Elimination
of Intercompany Agreements
NONE.
Schedule
2.03(b)
Intercompany
Agreements
NONE.
Schedule
2.04
CombiMatrix
Board of Directors
Amit
Kumar, Ph.D
|
|
Brooke
Anderson, Ph.D
|
|
Thomas
Akin
|
|
Rigdon
Currie
|
|
John
Abeles, MD
|
[end]
Schedule
2.05
Exceptions
to Acacia Resignations
NONE
Schedule
5.03(a)
CombiMatrix/May
2003 Warrants
Warrant
Date
|
No.
of Warrant Shares
|
No.
of Warrant Shares Outstanding
|
5/20/03
|
67,500
|
67,500
|
5/20/03
|
45,455
|
45,455
|
5/20/03
|
170,455
|
170,455
|
Schedule
5.03(b)
CombiMatrix/Piper
2005 Warrants
WARRANT
LEDGER - MAY 20, 2003 PRIVATE PLACEMENT
Warrant
No.
|
Warrant
Date
|
No.
of Warrant Shares
|
No.
of Warrant Shares Outstanding
|
W-1
|
9/21/05
|
6,061
|
6,061
|
W-2
|
9/21/05
|
60,606
|
60,606
|
W-3
|
9/21/05
|
84,849
|
84,849
|
W-4
|
9/21/05
|
60,606
|
60,606
|
W-5
|
9/21/05
|
303,030
|
303,030
|
W-6
|
9/21/05
|
151,515
|
151,515
|
W-7
|
9/21/05
|
75,758
|
75,758
|
W-8
|
9/21/05
|
151,515
|
151,515
|
W-9
|
9/21/05
|
37,879
|
37,879
|
W-10
|
9/21/05
|
20,000
|
20,000
|
W-11
|
9/21/05
|
105,000
|
105,000
|
W-12
|
9/21/05
|
75,000
|
75,000
|
W-13
|
9/21/05
|
113,636
|
113,636
|
W-14
|
9/21/05
|
61,250
|
61,250
|
W-15
|
9/21/05
|
62,500
|
62,500
|
W-16
|
9/21/05
|
121,212
|
121,212
|
W-19
|
9/21/05
|
37,879
|
37,879
|
W-20
|
9/21/05
|
21,591
|
21,591
|
W-21
|
9/21/05
|
3,788
|
3,788
|
W-22
|
9/21/05
|
12,500
|
12,500
|
W-23
|
9/28/06
|
7,576
|
7,576
|
W-24
|
9/22/06
|
22,727
|
22,727
|
Schedule
5.03(c)
CombiMatrix/Oppenheimer
Warrants
|
No.
of Warrant Shares
|
|
Warrant
#
|
|
Date
Issued
|
|
|
3,529,411
|
|
WA-001
|
|
12/13/2006
|
|
|
288,000
|
|
WA-003
|
|
12/13/2006
|
|
|
576,000
|
|
WA-004
|
|
12/13/2006
|
|
|
288,000
|
|
WA-005
|
|
12/13/2006
|
|
|
411,764
|
|
WA-006
|
|
12/13/2006
|
|
|
204,000
|
|
WA-007
|
|
12/13/2006
|
|
|
390,720
|
|
WA-008
|
|
12/13/2006
|
|
|
60,960
|
|
WA-009
|
|
12/13/2006
|
|
|
544,320
|
|
WA-010
|
|
12/13/2006
|
|
|
300,000
|
|
WA-011
|
|
12/13/2006
|
|
|
124,560
|
|
WA-012
|
|
12/13/2006
|
|
|
45,480
|
|
WA-013
|
|
12/13/2006
|
|
|
1,029,960
|
|
WA-014
|
|
12/13/2006
|
|
|
28,800
|
|
WA-015
|
|
12/13/2006
|
|
|
90,000
|
|
WA-016
|
|
12/13/2006
|
|
|
12,000
|
|
WA-017
|
|
12/13/2006
|
|
|
120,000
|
|
WA-018
|
|
12/13/2006
|
|
|
24,000
|
|
WA-019
|
|
12/13/2006
|
|
|
12,000
|
|
WA-020
|
|
12/13/2006
|
|
|
12,000
|
|
WA-021
|
|
12/13/2006
|
|
|
12,000
|
|
WA-022
|
|
12/13/2006
|
|
|
12,000
|
|
WA-023
|
|
12/13/2006
|
|
|
6,000
|
|
WA-024
|
|
12/13/2006
|
|
|
488,416
|
|
WA-025
|
|
12/13/2006
|
|
|
1,200,000
|
|
WA-026
|
|
12/13/2006
|
|
|
2,400,000
|
|
WA-027
|
|
12/13/2006
|
|
EXHIBIT 10.3
COMBIMATRIX
CORPORATION
2006
STOCK INCENTIVE PLAN
ARTICLE
ONE
GENERAL
PROVISIONS
I.
PURPOSE
OF THE PLAN
This
CombiMatrix Corporation 2006 Stock Incentive Plan is intended to promote
the
interests of CombiMatrix Corporation, a Delaware corporation, by providing
eligible persons in the Corporation's Service with the opportunity to acquire
a
proprietary interest, or otherwise increase their proprietary interest, in
the
Corporation as an incentive for them to remain in such Service.
Capitalized
terms shall have the meanings assigned to such terms in the attached
Appendix.
II.
STRUCTURE
OF THE PLAN
A.
The
Plan
shall be divided into three separate equity incentive programs:
the
Discretionary Option/Stock Appreciation Right Grant Program under which eligible
persons may, at the discretion of the Plan Administrator, be granted options
to
purchase shares of Common Stock,
the
Stock
Issuance Program under which eligible persons may, at the discretion of the
Plan
Administrator, be issued shares of Common Stock directly, either through
the
immediate purchase of such shares or as a bonus for services rendered the
Corporation (or any Parent or Subsidiary),
the
Automatic Option Grant Program under which eligible non-employee Board members
shall automatically receive option grants at designated intervals over their
period of continued Board Service, and
B.
The
provisions of Articles One and Five shall apply to all equity incentive programs
under the Plan and shall govern the interests of all persons under the
Plan.
III.
ADMINISTRATION
OF THE PLAN
A.
The
Committee shall have sole and exclusive authority to administer the
Discretionary Option Grant and Stock Issuance Programs with respect to Section
16 Insiders. Administration of the Discretionary Option Grant and Stock Issuance
Programs with respect to all other persons eligible to participate in those
programs may, at the Board's discretion, be vested in the Committee, or the
Board may retain the power to administer those programs with respect to all
such
persons. Other than with respect to Section 16 Insiders, the Board may also
appoint an Executive Officer Committee to administer the Discretionary Option
Program and Stock Issuance Program, subject to the applicable limitations
and
requirements of the Delaware Corporate Law. However, any discretionary option
grants or stock issuances to members of the Committee must be authorized
and
approved by a disinterested majority of the Board.
B.
Members
of the Committee or, if applicable, the Executive Officer Committee, shall
serve
for such period of time as the Board may determine and may be removed by
the
Board at any time.
C.
The
Plan
Administrator shall, within the scope of its administrative functions under
the
Plan, have full power and authority (subject to the provisions of the Plan)
to
establish such rules and regulations as it may deem appropriate for proper
administration of the Discretionary Option Grant and Stock Issuance Programs
and
to make such determinations under, and issue such interpretations of, the
provisions of those programs and any outstanding options or stock issuances
thereunder as it may deem necessary or advisable. Decisions of the Plan
Administrator within the scope of its administrative functions under the
Plan
shall be final and binding on all parties who have an interest in the
Discretionary Option Grant and Stock Issuance Programs under its jurisdiction
or
any stock option or stock issuance thereunder.
D.
Service
on the Committee shall constitute Service as a Board member, and members
of each
such committee shall accordingly be entitled to full indemnification and
reimbursement as Board members for their service on such committee. No member
of
the Committee or, if applicable, the Executive Officer Committee, shall be
liable for any act or omission made in good faith with respect to the Plan
or
any option grants or stock issuances under the Plan.
E.
Administration
of the Automatic Option Grant Program shall be self-executing in accordance
with
the terms of those programs, and no Plan Administrator shall exercise any
discretionary functions with respect to any option grants or stock issuances
made under those programs.
IV.
ELIGIBILITY
A.
The
persons eligible to participate in the Discretionary Option Grant and Stock
Issuance Programs are as follows:
|
(ii)
|
non-employee
members of the Board or the board of directors of any Parent or
Subsidiary, and
|
|
(iii)
|
consultants
and other independent advisors who provide services to the Corporation
(or
any Parent or Subsidiary).
|
B.
The
Plan
Administrator shall, within the scope of its administrative jurisdiction
under
the Plan, have full authority to determine, (i) with respect to the option
grants under the Discretionary Option Grant Program, which eligible persons
are
to receive such grants, the time or times when those grants are to be made,
the
number of shares to be covered by each such grant, the status of the granted
option as either an Incentive Option or a Non-Statutory Option, if, and the
extent to which, each option is to be exercisable at a different time or
times
than those times set forth in Section I.B.1. of Article Two of the Plan,
the vesting schedule (if any) applicable to the option shares and the maximum
term for which the option is to remain outstanding and (ii) with respect
to
stock issuances under the Stock Issuance Program, which eligible persons
are to
receive such issuances, the time or times when the issuances are to be made,
the
number of shares to be issued to each Participant, the vesting schedule (if
any)
applicable to the issued shares and the consideration for such shares.
C.
The
Plan
Administrator shall have the absolute discretion either to grant options
in
accordance with the Discretionary Option/Stock Appreciation Right Grant Program
or to effect stock issuances in accordance with the Stock Issuance
Program.
D.
The
individuals who shall be eligible to participate in the Automatic Option
Grant
Program shall be limited to (i) those individuals who first become non-employee
Board members after the Plan Effective Date, whether through appointment
by the
Board or election by the Corporation's stockholders, and (ii) those individuals
who continue to serve as non-employee Board members on the first business
day in
each calendar year following the Plan Effective Date and during the term
of the
Plan, including any individuals who first became non-employee Board members
prior to such Plan Effective Date. A non-employee Board member who has
previously been in the employ of the Corporation (or any Parent or Subsidiary)
shall not be eligible to receive an option grant under the Automatic Option
Grant Program at the time he or she first becomes a non-employee Board member,
but shall be eligible to receive periodic option grants under the Automatic
Option Grant Program while he or she continues to serve as a non-employee
Board
member.
V.
STOCK
SUBJECT TO THE PLAN
A.
The
stock
issuable under the Plan shall be shares of authorized but unissued or reacquired
Common Stock, including shares repurchased by the Corporation on the open
market. The number of shares of Common Stock initially reserved for issuance
over the term of the Plan shall not exceed 8,100,000 shares of Common Stock.
For
purposes of clarification, the shares of Common Stock subject to the Assumed
Options are not included in the 8,100,000 share of Common Stock reserved
hereunder for issuance pursuant to this paragraph, though the shares of Common
Stock subject to the Assumed Options may become available for grant under
this
Plan to the extent provided in Article One, Section V.D. below.
B.
The
number of shares of Common Stock available for issuance under the Plan shall
automatically increase on the first trading day of January each calendar
year
during the term of the Plan, beginning with calendar year 2007, by an amount
equal to three percent (3%) of the total number of shares of Common Stock
outstanding on the last trading day in December of the immediately preceding
calendar year. The maximum aggregate number of shares of Common Stock that
may
be issued under the Plan (as adjusted for all such annual increases) through
Incentive Options shall be 30,000,000 shares of Common Stock.
C.
At
such
time as stock option or stock appreciation rights granted under the Plan
may
qualify as performance-based compensation under Code Section 162(m), no one
person participating in the Plan may receive stock options or separately
exercisable stock appreciation rights for more than 2,000,000 shares of Common
Stock in the aggregate per calendar year. At such time as direct stock issuances
or share right awards granted under the Plan may qualify as performance-based
compensation under Code Section 162(m), no one person participating in the
Plan
may receive direct stock issuances or share right awards for more than 2,000,000
shares of Common Stock in the aggregate per calendar year. In addition, the
maximum dollar value payable to any one Participant with respect to awards
granted under Article Five, Section VIII.B. is $5,000,000 per calendar
year.
D.
Shares
of
Common Stock subject to outstanding options, Assumed Options or stock
appreciation rights shall be available for subsequent issuance under the
Plan to
the extent such shares are not issued pursuant to such options, Assumed Options
or stock appreciation rights prior to the expiration, termination or
cancellation of such options, Assumed Options or stock appreciation rights
for
any reason. Shares of Common Stock subject to outstanding share right awards
shall be available for subsequent issuance under the Plan to the extent those
share right awards expire, terminate or are cancelled for any reason prior
to
the issuance of all shares of Common Stock subject to such share right awards.
Unvested shares issued under the Plan and subsequently cancelled, forfeited
or
repurchased by the Corporation, at a price per share not greater than the
original issue price paid per share, pursuant to the Corporation’s repurchase
rights under the Plan shall be added back to the number of shares of Common
Stock reserved for issuance under the Plan. In addition, (i) should no shares
of
Common Stock be delivered upon the exercise of a stock appreciation right
or
(ii) should the exercise price of an option under the Plan or an Assumed
Option
be paid with shares of Common Stock (either shares previously held by the
individual exercising the option or shares deducted from the option) or (iii)
should shares of Common Stock otherwise issuable under the Plan or pursuant
to
or an Assumed Option be withheld by the Corporation in satisfaction of the
withholding taxes incurred in connection with the exercise of an option,
an
Assumed Option or stock appreciation right or in connection with a stock
issuance (including a share right award) under the Plan, then the number
of
shares of Common Stock available for issuance under the Plan shall be reduced
by
the net number of shares issued to the holder of the award, and not by the
gross
number of shares of Common Stock for which the option, Assumed Option or
stock
appreciation right is exercised or which vest or are issued pursuant to the
stock issuance (including a share right award).
E.
If
any
change is made to the Common Stock by reason of any stock split, stock dividend,
recapitalization, merger, reorganization, combination of shares, exchange
of
shares or other change affecting the outstanding Common Stock as a class
without
the Corporation's receipt of consideration, appropriate adjustments shall
be
made by the Plan Administrator to (i) the maximum number, type and/or class
of
securities issuable under the Plan, (ii) the maximum number, type and/or
class
of securities for which any one person may be granted (x) stock options and
separately exercisable stock appreciation rights and (y) direct stock issuances
and share right awards under the Plan per calendar year, (iii) the number,
type
and/or class of securities for which grants are subsequently to be made under
the Automatic Option Grant Program to new and continuing non-employee Board
members, (iv) the number, type and/or class of securities and the exercise
price
per share in effect under each outstanding option and stock appreciation
right
under the Plan, (v) the number, kind and/or class of securities under each
share
right award, and (vi) the maximum number, type and/or class of securities
by
which the share reserve is to increase automatically each calendar year pursuant
to the provisions of Section V.B. of this Article One. Such adjustments to
the
outstanding awards are to be effected in a manner which shall preclude the
enlargement or dilution of rights and benefits under such options. The
adjustments determined by the Plan Administrator shall be final, binding
and
conclusive.
ARTICLE
TWO
DISCRETIONARY
OPTION/STOCK APPRECIATION RIGHT GRANT PROGRAM
I.
OPTION
TERMS
Each
option shall be evidenced by one or more documents in the form approved by
the
Plan Administrator; provided, however, that each such document shall comply
with
the terms specified below. Each document evidencing an Incentive Option shall,
in addition, be subject to the provisions of the Plan applicable to such
options.
A.
EXERCISE
PRICE.
1.
The
exercise price per share shall be fixed by the Plan Administrator but shall
not
be less than one hundred percent (100%) of the Fair Market Value per share
of
Common Stock on the option grant date.
2.
The
exercise price shall become immediately due upon exercise of the option and
shall, subject to the provisions of the documents evidencing the option,
be
payable in one or more of the forms specified below:
(i)
cash
or
check made payable to the Corporation, or
(ii)
shares
of
Common Stock held for the requisite period necessary to avoid a charge to
the
Corporation's earnings for financial reporting purposes and valued at Fair
Market Value on the Exercise Date (including the cancellation of shares of
Common Stock subject to the option), or
(iii)
to
the
extent the option is exercised for vested shares, through a special sale
and
remittance procedure pursuant to which the Optionee shall concurrently provide
irrevocable instructions to (a) a Corporation-designated brokerage firm to
effect the immediate sale of the purchased shares and remit to the Corporation,
out of the sale proceeds available on the settlement date, sufficient funds
to
cover the aggregate exercise price payable for the purchased shares plus
all
applicable Federal, state and local income and employment taxes required
to be
withheld by the Corporation by reason of such exercise and (b) the Corporation
to deliver the certificates for the purchased shares directly to such brokerage
firm in order to complete the sale, or
(iv)
Any
other
form of legal consideration, as determined by the Plan Administrator and
specifically included in the stock option agreement.
Except
to
the extent such sale and remittance procedure is utilized, payment of the
exercise price for the purchased shares must be made on the Exercise Date.
B.
EXERCISE
AND TERM OF OPTIONS.
1.
Each
option shall vest and be exercisable at such time or times, during such period
and for such number of shares as shall be determined by the Plan Administrator
and set forth in the documents evidencing the option.
2.
Notwithstanding
any other provision of the Plan, no option shall have a term in excess of
ten
(10) years measured from the option grant date.
C.
EFFECT
OF
TERMINATION OF SERVICE.
1.
The
following provisions shall govern the exercise of any options held by the
Optionee at the time of cessation of Service or death:
(i)
Termination
of Service
.
Subject
to earlier termination of the option as otherwise provided in the Plan and
unless otherwise specifically provided by the Plan Administrator with respect
to
an option and set forth in the award agreement (either at grant or by amendment
at a later time), an option shall remain exercisable, to the extent vested,
after a Optionee’s termination of Service only during the applicable time period
determined in accordance with this Section and thereafter shall terminate
and no
longer be exercisable:
(A)
Death
or
Permanent Disability. If the Optionee’s Service terminates because of the death
or Permanent Disability of the Optionee, the option, to the extent unexercised,
vested and exercisable on the date on which the Optionee’s Service terminated,
may be exercised by the Optionee (or the Optionee’s legal representative or
estate, as applicable) at any time prior to the expiration of twelve (12)
months
(or such other period of time as determined by the Plan Administrator, in
its
discretion) after the date on which the Optionee’s Service terminated, but in
any event only with respect to the unexercised and vested portion of the
option
and not after the maximum term of the option.
(B)
Termination
for Misconduct. Notwithstanding any other provision of the Plan to the contrary,
if the Optionee’s Service is terminated for Misconduct or should the Optionee
otherwise engage in Misconduct while holding one or more outstanding options,
then all such options shall terminate immediately and cease to be outstanding.
(C)
Other
Termination of Service. If the Optionee’s Service terminates for any reason,
except Permanent Disability, death or Misconduct, the option, to the extent
unexercised, vested and exercisable by the Optionee on the date on which
the
Optionee’s Service terminated, may be exercised by the Optionee at any time
prior to the expiration of ninety (90) days (or such longer or shorter period
of
time as determined by the Plan Administrator, in its discretion) after the
date
on which the Optionee’s Service terminated, but in any event only with respect
to the unexercised and vested portion of the option and not the maximum term
of
the option.
(ii)
Any
option held by the Optionee at the time of death and exercisable in whole
or in
part at that time may be subsequently exercised by the personal representative
of the Optionee's estate or by the person or persons to whom the option is
transferred pursuant to the Optionee's will or the laws of descent and
distribution or by the Optionee's designated beneficiary or beneficiaries
of
that option.
(iii)
During
the applicable post-Service exercise period, the option may not be exercised
in
the aggregate for more than the number of vested shares for which the option
is
exercisable on the date of the Optionee's cessation of Service. Upon the
expiration of the applicable exercise period or (if earlier) upon the expiration
of the option term, the option shall terminate and cease to be outstanding
for
any vested shares for which the option has not been exercised. However, the
option shall, immediately upon the Optionee's cessation of Service, terminate
and cease to be outstanding to the extent the option is not otherwise at
that
time exercisable for vested shares.
2.
The
Plan
Administrator shall have complete discretion, exercisable either at the time
an
option is granted or at any time while the option remains outstanding, to:
(i)
extend
the period of time for which the option is to remain exercisable following
the
Optionee's cessation of Service from the limited exercise period otherwise
in
effect for that option to such greater period of time as the Plan Administrator
shall deem appropriate, but in no event beyond the expiration of the option
term
and in no event to such extent to make the option subject to Section 409A
(unless given the prior consent of the Optionee), and/or
(ii)
permit
the option to be exercised, during the applicable post-Service exercise period,
not only with respect to the number of vested shares of Common Stock for
which
such option is exercisable at the time of the Optionee's cessation of Service
but also with respect to one or more additional installments in which the
Optionee would have vested had the Optionee continued in Service.
D.
STOCKHOLDER
RIGHTS. The holder of an option shall have no stockholder rights with respect
to
the shares subject to the option until such person shall have exercised the
option, paid the exercise price and become a holder of record of the purchased
shares.
E.
REPURCHASE
RIGHTS.
The Plan
Administrator shall have the discretion to grant options which are exercisable
for unvested shares of Common Stock. Should the Optionee cease Service while
holding such unvested shares, the Corporation shall have the right, but not
the
obligation, to repurchase any or all of those unvested shares at a price
per
share equal to the
lower
of (i)
the exercise price paid per share or (ii) the Fair Market Value per share
of
Common Stock at the time of the Optionee’s cessation of Service. The terms upon
which such repurchase right shall be exercisable (including the period and
procedure for exercise and the appropriate vesting schedule for the purchased
shares) shall be established by the Plan Administrator and set forth in the
document evidencing such repurchase right.
F.
LIMITED
TRANSFERABILITY OF OPTIONS. During the lifetime of the Optionee, Incentive
Options shall be exercisable only by the Optionee and shall not be assignable
or
transferable other than by will or the laws of descent and distribution
following the Optionee's death. Non-Statutory Options shall be subject to
the
same limitation, except as otherwise determined by the Plan Administrator,
including an assignment to the Optionee’s Immediate Family. To the extent that a
Non-Statutory Option is assigned, the assigned portion may only be exercised
by
the person or persons who acquire a proprietary interest in the option pursuant
to the assignment. The terms applicable to the assigned portion shall be
the
same as those in effect for the option immediately prior to such assignment
and
shall be set forth in such documents issued to the assignee as the Plan
Administrator may deem appropriate. Notwithstanding the foregoing, the Optionee
may also designate one or more persons as the beneficiary or beneficiaries
of
his or her outstanding options under this Article Two, and those options
shall,
in accordance with such designation, automatically be transferred to such
beneficiary or beneficiaries upon the Optionee's death while holding those
options. Such beneficiary or beneficiaries shall take the transferred options
subject to all the terms and conditions of the applicable agreement evidencing
each such transferred option, including (without limitation) the limited
time
period during which the option may be exercised following the Optionee's
death.
II.
INCENTIVE
OPTIONS
The
terms
specified below shall be applicable to all Incentive Options. Except as modified
by the provisions of this Section II, all the provisions of Articles One
and Two
shall be applicable to Incentive Options. Options which are specifically
designated as Non-Statutory Options when issued under the Plan shall not
be
subject to the terms of this Section II.
A.
ELIGIBILITY.
Incentive Options may only be granted to Employees.
B.
EXERCISE
PRICE. The exercise price per share shall not be less than one hundred percent
(100%) of the Fair Market Value per share of Common Stock on the option grant
date.
C.
DOLLAR
LIMITATION. The aggregate Fair Market Value of the shares of Common Stock
(determined as of the respective date or dates of grant) for which one or
more
options granted to any Employee under the Plan (or any other option plan
of the
Corporation or any Parent or Subsidiary) may for the first time become
exercisable as Incentive Options during any one calendar year shall not exceed
the sum of One Hundred Thousand Dollars ($100,000). To the extent the Employee
holds two (2) or more such options which become exercisable for the first
time
in the same calendar year, the foregoing limitation on the exercisability
of
such options as Incentive Options shall be applied on the basis of the order
in
which such options are granted. To the extent that the options exceed this
limit, the excess amount shall be considered Non-Statutory Options.
D.
FAILURE
TO QUALIFY AS INCENTIVE OPTION. To the extent that any option governed by
this
Plan does not qualify as an Incentive Option, by reason of the dollar limitation
described in Section II.C of this Article Two or for any other reason, such
option shall be exercisable as a Non-Statutory Option under the Federal tax
laws.
E.
10%
STOCKHOLDER. If any Employee to whom an Incentive Option is granted is a
10%
Stockholder, then the exercise price per share shall not be less than one
hundred ten percent (110%) of the Fair Market Value per share of Common Stock
on
the option grant date, and the option term shall not exceed five (5) years
measured from the option grant date.
III.
STOCK
APPRECIATION RIGHT TERMS
The
Plan
Administrator may grant stock appreciation rights either in conjunction with
all
or part of any option or without regard to any option, in each case upon
such
terms and conditions as the Plan Administrator may establish in its sole
discretion, not inconsistent with the provisions of the Plan. Each stock
appreciation right shall be evidenced by one or more documents in the form
approved by the Plan Administrator;
provided
,
however, that each such document shall comply with the terms specified
below.
A.
RIGHT
TO
PAYMENT.
1.
Each
stock appreciation right shall confer on the Participant to whom it is granted
a
right to receive, upon exercise thereof, the excess of (A) the Fair Market
Value
of one share of Common Stock on the date of exercise over (B) the per share
strike price of the stock appreciation right.
2.
The
Plan
Administrator shall determine the method of settlement, form of consideration
payable in settlement and method by or forms in which shares of Common Stock
will be delivered or deemed to be delivered to Participants.
3.
The
strike price per share shall be fixed by the Plan Administrator but shall
not be
less than one hundred percent (100%) of the Fair Market Value per share of
Common Stock on the stock appreciation right grant date.
B.
EXERCISE
AND TERM OF STOCK APPRECIATION RIGHTS.
Each
stock appreciation right shall be exercisable at such time or times, during
such
period and for such number of shares as shall be determined by the Plan
Administrator and set forth in the documents evidencing the stock appreciation
right. However, no stock appreciation right shall have a term in excess of
ten
(10) years measured from the stock appreciation right grant date.
C.
EFFECT
OF
TERMINATION OF SERVICE.
1.
The
following provisions shall govern the exercise of any stock appreciation
rights
held by the Participant at the time of cessation of Service or
death:
(i)
Any
stock
appreciation right outstanding at the time of the Participant’s cessation of
Service for any reason shall remain exercisable for such period of time
thereafter as shall be determined by the Plan Administrator and set forth
in the
documents evidencing the stock appreciation right, but no such stock
appreciation right shall be exercisable after the expiration of the stock
appreciation right term.
(ii)
Any
stock
appreciation right held by the Participant at the time of death and exercisable
in whole or in part at that time may be subsequently exercised by the personal
representative of the Participant’s estate or by the person or persons to whom
the stock appreciation right is transferred pursuant to the Participant’s will
or the laws of inheritance or by the Participant’s designated beneficiary or
beneficiaries of that stock appreciation right.
(iii)
Should
the Participant’s Service be terminated for Misconduct or should the Participant
otherwise engage in Misconduct while holding one or more outstanding stock
appreciation rights under this Article Two, then all those stock appreciation
rights shall terminate immediately and cease to be outstanding.
(iv)
During
the applicable post-Service exercise period, the stock appreciation right
may
not be exercised in the aggregate for more than the number of vested shares
for
which the stock appreciation right is exercisable on the date of the
Participant’s cessation of Service. Upon the expiration of the applicable
exercise period or (if earlier) upon the expiration of the stock appreciation
right term, the stock appreciation right shall terminate and cease to be
outstanding for any vested shares for which the stock appreciation right
has not
been exercised. However, the stock appreciation right shall, immediately
upon
the Participant’s cessation of Service, terminate and cease to be outstanding to
the extent the stock appreciation right is not otherwise at that time
exercisable for vested shares.
2.
The
Plan
Administrator shall have complete discretion, exercisable either at the time
an
stock appreciation right is granted or at any time while the stock appreciation
right remains outstanding, to:
(i)
extend
the period of time for which the stock appreciation right is to remain
exercisable following the Participant’s cessation of Service from the limited
exercise period otherwise in effect for that stock appreciation right to
such
greater period of time as the Plan Administrator shall deem appropriate,
but in
no event beyond the expiration of the stock appreciation right term,
and/or
(ii)
permit
the stock appreciation right to be exercised, during the applicable post-Service
exercise period, not only with respect to the number of vested shares of
Common
Stock for which such stock appreciation right is exercisable at the time
of the
Participant’s cessation of Service but also with respect to one or more
additional installments in which the Participant would have vested had the
Participant continued in Service.
D.
STOCKHOLDER
RIGHTS. The holder of an stock appreciation right shall have no stockholder
rights with respect to the shares subject to the stock appreciation right
until
such person shall have exercised the stock appreciation right, received shares
of common stock in connection with such exercise and become a holder of record
of the purchased shares.
E.
LIMITED
TRANSFERABILITY OF STOCK APPRECIATION RIGHTS. During the lifetime of the
Participant, stock appreciation rights shall be exercisable only by the
Participant and shall not be assignable or transferable other than by will
or
the laws of inheritance following the Participant’s death, except that the Plan
Administrator may structure one or more stock appreciation rights under the
Discretionary Option/Stock Appreciation Right Grant Program so that each
such
stock appreciation right may be assigned in whole or in part during the
Participant’s lifetime to one or more members of the Participant’s family or to
a trust established exclusively for one or more such family members or to
Participant’s former spouse, to the extent such assignment is in connection with
the Participant’s estate plan or pursuant to a domestic relations order. The
assigned portion may only be exercised by the person or persons who acquire
a
proprietary interest in the stock appreciation right pursuant to the assignment.
The terms applicable to the assigned portion shall be the same as those in
effect for the stock appreciation right immediately prior to such assignment
and
shall be set forth in such documents issued to the assignee as the Plan
Administrator may deem appropriate. Notwithstanding the foregoing, the
Participant may also designate one or more persons as the beneficiary or
beneficiaries of his or her outstanding stock appreciation rights under this
Article Two, and those stock appreciation rights shall, in accordance with
such
designation, automatically be transferred to such beneficiary or beneficiaries
upon the Participant’s death while holding those stock appreciation rights. Such
beneficiary or beneficiaries shall take the transferred stock appreciation
rights subject to all the terms and conditions of the applicable agreement
evidencing each such transferred stock appreciation right, including (without
limitation) the limited time period during which the stock appreciation right
may be exercised following the Participant’s death.
IV.
CHANGE
IN CONTROL/HOSTILE TAKE-OVER
A.
Except
as
otherwise provided in this Section IV, none of the outstanding options or
stock
appreciation rights under the Discretionary Option/Stock Appreciation Right
Grant Program shall vest in whole or in part on an accelerated basis upon
the
occurrence of a Change in Control, and those options and stock appreciation
rights may be assumed, continued or substituted for by any successor corporation
in the Change in Control.
B.
Except
as
otherwise provided in this Section IV, none of the outstanding repurchase
rights
under the Discretionary Option/Stock Appreciation Right Grant Program shall
terminate on an accelerated basis upon the occurrence of a Change in Control,
and those rights shall be assignable to any successor corporation in the
Change
in Control.
C.
Unless
an
option or stock appreciation right is assumed, continued or substituted for
by
the successor corporation (or parent thereof) or otherwise continued in full
force and effect pursuant to the terms of the Change in Control transaction,
if
a Change in Control occurs while the Optionee remains in Service, the shares
of
Common Stock at the time subject to each outstanding option or stock
appreciation right held by such Optionee but not otherwise vested shall
automatically accelerate so that each such option or stock appreciation right
shall, immediately prior to the effective date of the Change in Control,
vest
and become exercisable for all the shares of Common Stock at the time subject
to
such option or stock appreciation right and may be exercised for any or all
of
those shares as fully vested shares of Common Stock. The Corporation shall
provide each holder of an option or a stock appreciation right that is
accelerated in accordance with this paragraph at least five (5) business
days
notice of the vesting acceleration. Immediately following the consummation
of
the Change in Control, each option or stock appreciation right shall terminate
and cease to be outstanding, except to the extent assumed or substituted
for by
the successor corporation (or parent thereof) or otherwise continued in full
force and effect pursuant to the express terms of the Change in Control
transaction.
D.
The
Plan
Administrator shall have the discretionary authority to structure one or
more
options or stock appreciation rights grants under the Discretionary Option/Stock
Appreciation Right Grant Program so that the vesting and exercisability of
each
option or stock appreciation right shall automatically accelerate in whole
or in
part, either (i) immediately prior to the effective date of that Change in
Control or Hostile Takeover, and become exercisable for all the shares of
Common
Stock at the time or (ii) upon an event occurring after the Change in Control
or
Hostile Takeover (including a termination of employment). In addition, the
Plan
Administrator may structure one or more of the Corporation’s repurchase rights
so that those rights shall immediately terminate, in whole or in part, with
respect to any shares held by the Participant (and the shares subject to
those
terminated repurchase rights shall accordingly vest in full ) either (i)
immediately prior to the effective date of that Change in Control or Hostile
Takeover, or (ii) upon an event occurring after the Change in Control or
Hostile
Takeover (including a termination of employment).
E.
Each
option which is assumed or substituted for in connection with a Change in
Control or otherwise continued in effect shall be appropriately adjusted,
immediately after such Change in Control, to apply to the number and class
of
securities which would have been issuable to the Optionee in consummation
of
such Change in Control had the option been exercised immediately prior to
such
Change in Control. Appropriate adjustments to reflect such Change in Control
shall also be made to (i) the exercise price payable per share under each
outstanding option, provided the aggregate exercise price payable for such
securities shall remain the same, (ii) the maximum number, type and/or class
of
securities available for issuance over the remaining term of the Plan, (iii)
the
maximum number, type and/or class of securities by which the share reserve
is to
increase each calendar year pursuant to the automatic share increase provisions
of the Plan and (iv) the maximum number, type and/or class of securities
for
which any one person may be granted options, separately exercisable stock
appreciation rights and direct stock issuances or share right awards under
the
Plan per calendar year. To the extent the actual holders of the Corporation's
outstanding Common Stock receive cash consideration for their Common Stock
in
consummation of the Change in Control transaction, the successor corporation
may, in connection with the assumption of the outstanding options under the
Discretionary Option Grant Program, substitute one or more shares of its
own
common stock (or those of its parent) with a fair market value equivalent
to the
cash consideration paid per share of Common Stock in such Change in Control
transaction.
F.
Unless
otherwise determined by the Plan Administrator and expressly set forth in
the
documents evidencing the option, each option outstanding under the Discretionary
Option/Stock Appreciation Right Grant Program at the time of a Hostile Take-Over
but not otherwise exercisable for all the shares of Common Stock subject
to such
option at that time shall, immediately prior to the effective date of a Hostile
Take-Over, automatically vest and become exercisable for all the shares of
Common Stock at that time subject to such options on an accelerated basis
and
may be exercised for any or all of such shares as fully vested shares of
Common
Stock. In addition, all of the Corporation's repurchase rights under the
Discretionary Option/Stock Appreciation Right Grant Program shall terminate
automatically upon the consummation of such Hostile Take-Over, and the shares
subject to those terminated rights shall thereupon immediately vest in full,
except to the extent such accelerated vesting is precluded by limitations
imposed by the Plan Administrator at the time the repurchase right is issued.
Each option so accelerated shall remain exercisable for fully vested shares
of
Common Stock until the expiration or sooner termination of the option
term.
G.
The
portion of any Incentive Option accelerated in connection with a Change in
Control or Hostile Take-Over shall remain exercisable as an Incentive Option
only to the extent the applicable One Hundred Thousand Dollar ($100,000)
limitation is not exceeded. To the extent such dollar limitation is exceeded,
the excess accelerated portion of such option shall be exercisable as a
Non-Statutory Option under the Federal tax laws.
H.
The
grant
of options under the Discretionary Option/Stock Appreciation Right Grant
Program
shall in no way affect the right of the Corporation to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets.
V.
CANCELLATION
AND REGRANT OF OPTIONS
The
Plan
Administrator shall have the authority to effect, at any time and from time
to
time, with the consent of the affected option holders, the cancellation of
any
or all outstanding options under the Discretionary Option/Stock Appreciation
Right Grant Program (including outstanding options incorporated from the
Predecessor Plans) and to grant (i) in substitution new options or stock
appreciation rights covering the same or a different number of shares of
Common
Stock but with an exercise price per share calculated based upon the Fair
Market
Value per share of Common Stock on the new grant date; (ii) stock issuances
(including share right awards); (iii) cash; or (iv) other
property.
ARTICLE
THREE
STOCK
ISSUANCE PROGRAM
I.
STOCK
ISSUANCE TERMS
Shares
of
Common Stock may be issued under the Stock Issuance Program through direct
and
immediate issuances without any intervening option grants. Each such stock
issuance shall be evidenced by a Stock Issuance Agreement which complies
with
the terms specified below. Shares of Common Stock may also be issued under
the
Stock Issuance Program pursuant to share right awards which entitle the
recipients to receive those shares upon the attainment of designated performance
goals.
A.
PURCHASE
PRICE.
1.
The
purchase price per share shall be fixed by the Plan Administrator, but shall
not
be less than any legal limit required under state law.
2.
Shares
of
Common Stock may be issued under the Stock Issuance Program for any of the
following items of consideration which the Plan Administrator may deem
appropriate in each individual instance:
(i)
cash
or
check made payable to the Corporation for one hundred percent of the Fair
Market
Value of the shares of Common Stock to be purchased,
(ii)
past
services rendered to the Corporation (or any Parent or Subsidiary),
(iii)
services
to be rendered to the Corporation (or any Parent or Subsidiary) during the
vesting period, or
(iv)
any
other
form of legal consideration that may be acceptable to the Plan
Administrator.
B.
VESTING
PROVISIONS.
1.
Shares
of
Common Stock issued under the Stock Issuance Program may, in the discretion
of
the Plan Administrator, be fully and immediately vested upon issuance or
may
vest in one or more installments over the Participant's period of Service
or
upon attainment of specified performance objectives. The elements of the
vesting
schedule applicable to any unvested shares of Common Stock issued under the
Stock Issuance Program shall be determined by the Plan Administrator and
incorporated into the Stock Issuance Agreement. Shares of Common Stock may
also
be issued under the Stock Issuance Program pursuant to share right awards
which
entitle the recipients to receive those shares upon the attainment of designated
performance goals or in one or more installments over the Participant's period
of Service. Upon the attainment of such performance goals or Service period,
fully vested shares of Common Stock shall be issued in satisfaction of those
share right awards.
2.
Any
new,
substituted or additional securities or other property (including money paid
other than as a regular cash dividend) which the Participant may have the
right
to receive with respect to the Participant's unvested shares of Common Stock
by
reason of any stock dividend, stock split, recapitalization, combination
of
shares, exchange of shares or other change affecting the outstanding Common
Stock as a class without the Corporation's receipt of consideration shall
be
issued subject to (i) the same vesting requirements applicable to the
Participant's unvested shares of Common Stock and (ii) such escrow arrangements
as the Plan Administrator shall deem appropriate.
3.
The
Participant shall have full stockholder rights with respect to any shares
of
Common Stock issued to the Participant under the Stock Issuance Program,
whether
or not the Participant's interest in those shares is vested. Accordingly,
the
Participant shall have the right to vote such shares and to receive any regular
cash dividends paid on such shares.
4.
Should
the Participant cease to remain in Service while holding one or more unvested
shares of Common Stock issued under the Stock Issuance Program or should
the
performance objectives not be attained with respect to one or more such unvested
shares of Common Stock, then those shares shall be immediately surrendered
to
the Corporation for cancellation, and the Participant shall have no further
stockholder rights with respect to those shares. To the extent the surrendered
shares were previously issued to the Participant for consideration paid in
cash
or cash equivalent (including the Participant’s purchase-money indebtedness),
the Corporation shall repay to the Participant the
lower
of
(i)
the cash consideration paid for the surrendered shares or (ii) the Fair Market
Value of those shares at the time of cancellation.
5.
The
Plan
Administrator may in its discretion waive the surrender and cancellation
of one
or more unvested shares of Common Stock which would otherwise occur upon
the
cessation of the Participant's Service or the non-attainment of the performance
objectives applicable to those shares. Such waiver shall result in the immediate
vesting of the Participant's interest in the shares of Common Stock as to
which
the waiver applies. Such waiver may be effected at any time, whether before
or
after the Participant's cessation of Service or the attainment or non-attainment
of the applicable performance objectives.
6.
Outstanding
share right awards under the Stock Issuance Program shall automatically
terminate, and no shares of Common Stock shall actually be issued in
satisfaction of those awards, if the performance goals or Service requirements
established for such awards are not attained. The Plan Administrator, however,
shall have the discretionary authority to issue shares of Common Stock under
one
or more outstanding share right awards as to which the designated performance
goals or Service requirements have not been attained.
II.
CHANGE
IN CONTROL/HOSTILE TAKE-OVER
A.
Except
as
otherwise provided in this Section II, none of the outstanding repurchase
rights
under the Stock Issuance Program shall terminate on an accelerated basis
upon
the occurrence of a Change in Control, and those rights shall be assignable
to
any successor corporation in the Change in Control. Except as otherwise provided
in this Section II, none of the outstanding share right awards under the
Stock
Issuance Program shall vest in whole or in part on an accelerated basis upon
the
occurrence of a Change in Control, and those share right awards may be assumed,
continued or substituted for by any successor corporation in the Change in
Control.
B.
To
the
extent that the outstanding repurchase rights under the Stock Issuance Program
are not assigned to any successor corporation in the Change in Control and
are
not continued by the Corporation, such outstanding repurchase rights under
the
Stock Issuance Program shall terminate immediately prior to and contingent
upon
the occurrence of the Change in Control.
C.
Unless
a
share right award is assumed or substituted for by the successor corporation
(or
parent thereof) or otherwise continued in full force and effect pursuant
to the
terms of the Change in Control transaction, if a Change in Control occurs
while
the Participant remains in Service, the shares of Common Stock at the time
subject to each a share right award held by such Participant but not otherwise
vested shall automatically accelerate so that each such Participant shall,
immediately prior to the effective date of the Change in Control, vest for
all
the shares of Common Stock at the time subject to such share right award
and
such fully vested shares of Common Stock shall be delivered to the Participant
immediately prior to and contingent upon the Change in Control. The Corporation
shall provide each holder of a share right award that is accelerated in
accordance with this paragraph at least five (5) business days notice of
the
vesting acceleration. Immediately following the consummation of the Change
in
Control, each option or stock appreciation right shall terminate and cease
to be
outstanding, except to the extent assumed or substituted for by the successor
corporation (or parent thereof) or otherwise continued in full force and
effect
pursuant to the express terms of the Change in Control transaction.
D.
To
the
extent a share right award is not assumed, continued or substituted for by
the
successor corporation (or parent thereof) or otherwise continued in full
force
and effect pursuant to the terms of the Change in Control transaction, then
such
share right award shall become fully vested and shares of Common Stock
deliverable under the share right award shall be delivered immediately prior
to
and contingent upon the Change in Control. The Corporation shall provide
each
holder of a share right award that is accelerated in accordance with this
paragraph at least five (5) business days notice of the vesting
acceleration.
E.
Immediately
following the consummation of the Change in Control, all outstanding share
right
awards under the Stock Issuance Program shall terminate and cease to be
outstanding, except to the extent assumed, continued or substituted for by
the
successor corporation (or parent thereof) or otherwise continued in full
force
and effect pursuant to the terms of the Change in Control
transaction.
F.
All
of
the Corporation's outstanding repurchase rights under the Stock Issuance
Program
shall terminate automatically, and all the shares of Common Stock subject
to
those terminated rights shall immediately vest in full, in the event of any
Hostile Take-Over, except to the extent such accelerated vesting is precluded
by
other limitations imposed in the Stock Issuance Agreement. All the shares
of
Common Stock subject to outstanding share right awards shall immediately
vest in
full, in the event of any Hostile Take-Over, except to the extent such
accelerated vesting is precluded by other limitations imposed in the Share
Right
Award Agreement.
G.
The
Plan
Administrator may, in its discretion, structure one or more of the Corporation’s
repurchase rights so that those rights shall immediately terminate, in whole
or
in part, with respect to any shares held by the Participant (and the shares
subject to those terminated repurchase rights shall accordingly vest in full)
either (i) immediately prior to the effective date of that Change in Control
or
Hostile Takeover, or (ii) upon an event occurring after the Change in Control
or
Hostile Takeover (including a termination of a Participant’s Service). In
addition, the Plan Administrator shall have the discretionary authority to
structure one or more share right awards grants under the Stock Issuance
Program
so that the vesting of each share right shall automatically accelerate in
whole
or in part, either (i) immediately prior to the effective date of that Change
in
Control or Hostile Takeover, or (ii) upon an event occurring after the Change
in
Control or Hostile Takeover (including a termination of employment).
H.
Each
share right award which is assumed or substituted for in connection with
a
Change in Control or otherwise continued in effect shall be appropriately
adjusted, immediately after such Change in Control, to convert the number
and
class of securities which would have been issuable to the Participant in
consummation of such Change in Control had the shares of Common Stock subject
to
the share right award been issued immediately prior to such Change in Control
to
the type and amount of consideration received by the holders of Common Stock
in
the Change in Control. To the extent the actual holders of the Corporation’s
outstanding Common Stock receive cash consideration for their Common Stock
in
consummation of the Change in Control, the successor corporation may, in
connection with the assumption or substitution of the outstanding share right
awards under the Stock Issuance Program, substitute one or more shares of
its
own common stock or that of any parent or publicly traded Subsidiary, with
a
fair market value equivalent to the cash consideration paid per share of
Common
Stock in such Change in Control transaction.
III.
SHARE
ESCROW/LEGENDS
Unvested
shares may, in the Plan Administrator's discretion, be held in escrow by
the
Corporation until the Participant's interest in such shares vests or may
be
issued directly to the Participant with restrictive legends on the certificates
evidencing those unvested shares.
ARTICLE
FOUR
AUTOMATIC
OPTION GRANT PROGRAM
I.
OPTION
TERMS
A.
GRANT
DATES. Option grants shall be made on the dates specified below:
1.
Each
individual who is first elected or appointed as a non-employee Board member
at
any time on or after the Plan Effective Date shall automatically be granted,
on
the date of such initial election or appointment, a Non-Statutory Option
to
purchase 30,000 shares of Common Stock, provided that individual has not
previously been in the employ of the Corporation or any Parent or
Subsidiary.
2.
On
the
first business day in each calendar year following the Plan Effective Date
and
during the term of the Plan, each non-employee Board member then in office,
shall automatically be granted a Non-Statutory Option to purchase 30,000
shares
of Common Stock, provided such individual has served as a non-employee Board
member for at least six (6) months. There shall be no limit on the number
of
such option grants any one non-employee Board member may receive over his
or her
period of Service on the Board, and non-employee Board members who have
previously been in the employ of the Corporation (or any Parent or Subsidiary)
or who joined the Board prior to the Plan Effective Date shall be eligible
to
receive one or more such annual option grants over their period of continued
Board Service.
B.
EXERCISE
PRICE.
1.
The
exercise price per share shall be equal to one hundred percent (100%) of
the
Fair Market Value per share of Common Stock on the option grant date.
2.
The
exercise price shall be payable in one or more of the alternative forms
authorized under the Discretionary Option Grant Program. Except to the extent
the sale and remittance procedure specified thereunder is utilized, payment
of
the exercise price for the purchased shares must be made on the Exercise
Date.
C.
OPTION
TERM. Each option shall have a maximum term of ten (10) years measured from
the
option grant date.
D.
EXERCISE
AND VESTING OF OPTIONS.
Each
option granted pursuant to this Automatic Option Grant Program shall become
exercisable in a series of four (4) equal quarterly installments upon the
Optionee's completion of each three (3) months of continuous Service as a
Board
member over the 12-month period measured from the option grant date.
E.
LIMITED
TRANSFERABILITY OF OPTIONS. Each option under this Article Four may be assigned
in whole or in part during the Optionee's lifetime to one or more members
of the
Optionee's Immediate Family or to a trust established exclusively for the
Optionee or one or more Members of the Optionee's Immediate Family or to
Optionee's former spouse, to the extent such assignment is in connection
with
the Optionee's estate plan or pursuant to domestic relations order. The assigned
portion may only be exercised by the person or persons who acquire a proprietary
interest in the option pursuant to the assignment. The terms applicable to
the
assigned portion shall be the same as those in effect for the option immediately
prior to such assignment and shall be set forth in such documents issued
to the
assignee as the Plan Administrator may deem appropriate. The Optionee may
also
designate one or more persons as the beneficiary or beneficiaries of his
or her
outstanding options under this Article Four, and those options shall, in
accordance with such designation, automatically be transferred to such
beneficiary or beneficiaries upon the Optionee's death while holding those
options. Such beneficiary or beneficiaries shall take the transferred options
subject to all the terms and conditions of the applicable agreement evidencing
each such transferred option, including (without limitation) the limited
time
period during which the option may be exercised following the Optionee's
death.
F.
TERMINATION
OF BOARD SERVICE. The following provisions shall govern the exercise of any
options held by the Optionee at the time the Optionee ceases to serve as
a Board
member for any reason:
(i)
The
Optionee (or, in the event of Optionee's death, the personal representative
of
the Optionee's estate or the person or persons to whom the option is transferred
pursuant to the Optionee's will or the laws of descent and distribution or
the
designated beneficiary or beneficiaries of such option) shall have a six
(6)-month period following the date of such cessation of Board Service in
which
to exercise each such option.
(ii)
During
the six (6)-month post-Service exercise period, the option may not be exercised
in the aggregate for more than the number of vested shares of Common Stock
for
which the option is exercisable at the time of the Optionee's cessation of
Board
Service.
(iii)
In
no
event shall the option remain exercisable after the expiration of the option
term. Upon the expiration of the six (6)-month post-Service exercise period
or
(if earlier) upon the expiration of the option term, the option shall terminate
and cease to be outstanding for any shares for which the option has not been
exercised. However, the option shall, immediately upon the Optionee's cessation
of Board Service for any reason, terminate and cease to be outstanding to
the
extent the option is not otherwise at that time exercisable.
II.
CHANGE
IN CONTROL/ HOSTILE TAKE-OVER
A.
In
the
event of any Change in Control while the Optionee remains a Board member,
the
shares of Common Stock at the time subject to each outstanding option held
by
such Optionee under the Automatic Option Grant Program but not otherwise
vested
shall automatically accelerate so that each such option shall, immediately
prior
to the effective date of the Change in Control, vest and become exercisable
for
all the shares of Common Stock at the time subject to such option and may
be
exercised for any or all of those shares as fully vested shares of Common
Stock.
Immediately following the consummation of the Change in Control, each automatic
option grant shall terminate and cease to be outstanding, except to the extent
assumed by the successor corporation (or parent thereof) or otherwise continued
in full force and effect pursuant to the express terms of the Change in Control
transaction.
B.
In
the
event of a Hostile Take-Over while the Optionee remains a Board member, the
shares of Common Stock at the time subject to each option outstanding under
the
Automatic Option Grant Program but not otherwise vested shall automatically
accelerate so that each such option shall, immediately prior to the effective
date of the Hostile Take-Over, vest and become exercisable for all the shares
of
Common Stock at the time subject to such option and may be exercised for
any or
all of those shares as fully vested shares of Common Stock. Each such option
shall remain exercisable for such fully-vested option shares until the
expiration or sooner termination of the option term or the surrender of the
option in connection with that Hostile Take-Over.
C.
All
outstanding repurchase rights under the Automatic Option Grant Program shall
automatically terminate, and the shares of Common Stock subject to those
terminated rights shall immediately vest in full, in the event of any Change
in
Control or Hostile Take-Over.
D.
Upon
the
occurrence of a Hostile Take-Over, the Optionee shall have a thirty (30)-day
period in which to surrender to the Corporation each of his or her outstanding
automatic option grants. The Optionee shall in return be entitled to a cash
payment from the Corporation in an amount equal to the excess of (i) the
Take-Over Price of the shares of Common Stock at the time subject to each
surrendered option (whether or not the Optionee is otherwise at the time
vested
in those shares) over (ii) the aggregate exercise price payable for such
shares.
Such cash payment shall be paid within five (5) days following the surrender
of
the option to the Corporation. The Plan Administrator shall, at the time
the
option with such limited stock appreciation right is granted under the Automatic
Option Grant Program, pre-approve any subsequent exercise of that right in
accordance with the terms of this Paragraph D. Accordingly, no further approval
of the Plan Administrator or the Board shall be required at the time of the
actual option surrender and cash payment.
E.
Each
option which is assumed in connection with a Change in Control or otherwise
continued in full force and effect shall be appropriately adjusted, immediately
after such Change in Control, to apply to the number and class of securities
which would have been issuable to the Optionee in consummation of such Change
in
Control had the option been exercised immediately prior to such Change in
Control. Appropriate adjustments shall also be made to the exercise price
payable per share under each outstanding option, provided the aggregate exercise
price payable for such securities shall remain the same. To the extent the
actual holders of the Corporation's outstanding Common Stock receive cash
consideration for their Common Stock in consummation of the Change in Control
transaction, the successor corporation may, in connection with the assumption
of
the outstanding options under the Automatic Option Grant Program, substitute
one
or more shares of its own common stock with a fair market value equivalent
to
the cash consideration paid per share of Common Stock in such Change in Control
transaction.
F.
The
grant
of options under the Automatic Option Grant Program shall in no way affect
the
right of the Corporation to adjust, reclassify, reorganize or otherwise change
its capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
III.
REMAINING
TERMS
The
remaining terms of each option granted under the Automatic Option Grant Program
shall be the same as the terms in effect for option grants made under the
Discretionary Option Grant Program.
ARTICLE
FIVE
MISCELLANEOUS
I.
NO
FRACTIONAL SHARES
No
fractional shares of Common Stock shall be issued or delivered pursuant to
the
Plan, and the Plan Administrator shall determine whether cash shall be paid
in
lieu of any fractional shares or whether such fractional shares or any rights
thereto shall be canceled, terminated or otherwise eliminated.
A.
The
Corporation’s obligation to deliver shares of Common Stock upon a stock
issuance, or the exercise of options or stock appreciation rights or the
issuance or vesting of such shares under the Plan shall be subject to the
satisfaction of all applicable income and employment tax withholding
requirements. The Corporation shall also make appropriate arrangements to
satisfy all applicable foreign tax withholding requirements which may be
imposed
in connection with the grant or exercise of options or stock appreciation
rights
under the Plan or the issuance or vesting of shares of Common Stock under
the
Plan.
B.
The
Plan
Administrator may, in its discretion, provide in the respective award agreement
that (i) the Corporation, in its discretion, may determine that shares of
Common
Stock from the award be withheld by the Corporation in satisfaction of all
or
part of the Withholding Taxes which may become payable in connection with
the an
award granted under the Plan (pursuant to Article Five Section II.B.1.) and
(ii)
any or all Optionees or Participants under the Plan (other than the non-employee
Board members) with the right to use shares of Common Stock in satisfaction
of
all or part of the Withholding Taxes to which such individuals may become
subject in connection with the grant or exercise of their options or stock
appreciation rights or the issuance or vesting of their shares. Such right
to an
individual may be provided to any such holder in either or both of the following
formats:
1.
Stock
Withholding
:
The
election to have the Corporation withhold, from the shares of Common Stock
otherwise issuable upon the exercise of options or stock appreciation rights
or
the issuance or the vesting of such shares, a portion of those shares with
an
aggregate Fair Market Value equal to the percentage of the Withholding Taxes
(not to exceed one hundred percent (100%) of the minimum Withholding Taxes
required be law) designated by the holder.
2.
Stock
Delivery
:
The
election to deliver to the Corporation, at the time the option or stock
appreciation right is granted or exercised or the shares are issued or vest,
one
or more shares of Common Stock previously acquired by such holder (other
than in
connection with the option or stock appreciation right exercise or share
vesting
triggering the Withholding Taxes) with an aggregate Fair Market Value equal
to
the percentage of the Withholding Taxes (not to exceed one hundred percent
(100%) of the minimum Withholding Taxes required be law) designated by the
holder.
III.
EFFECTIVE
DATE AND TERM OF THE PLAN
A.
The
Plan
shall become effective immediately upon the Plan Effective Date. Options
may be
granted under the Discretionary Option/Stock Appreciation Right Grant Program
at
any time on or after the Plan Effective Date, and the initial option grants
under the Automatic Option Grant Program shall be made on the Plan Effective
Date to any non-employee Board members eligible for such grants at that time.
However, no options granted under the Plan may be exercised, and no shares
shall
be issued under the Plan, until the Plan is approved by the Corporation's
stockholders. If such stockholder approval is not obtained within twelve
(12)
months after the Plan Effective Date, then all options previously granted
under
this Plan shall terminate and cease to be outstanding, and no further options
shall be granted and no shares shall be issued under the Plan.
B.
The
Plan
shall terminate upon the earliest of (i) the tenth anniversary of the Plan
Effective Date, (ii) the tenth anniversary of the approval of the Plan by
the Corporation's stockholders, (iii) the date on which all shares available
for
issuance under the Plan shall have been issued as fully-vested shares or
(iv)
the termination of all outstanding awards in connection with a Change in
Control. Upon such Plan termination, all option grants and unvested stock
issuances outstanding at that time shall thereafter continue to have force
and
effect in accordance with the provisions of the documents evidencing such
grants
or issuances.
IV.
AMENDMENT
OF THE PLAN
A.
The
Board
shall have complete and exclusive power and authority to amend or modify
the
Plan or any outstanding award granted under the Plan in any or all respects.
However, no such amendment or modification shall adversely affect the rights
and
obligations with respect to stock options, stock appreciation rights or unvested
stock issuances at the time outstanding, including share right awards, under
the
Plan unless the Optionee or the Participant consents to such amendment or
modification. Notwithstanding the foregoing, any amendment to either increase
the number of shares that may be issued under the Plan or the Persons eligible
to receive awards under the Plan shall require stockholder approval. In
addition, certain amendments may require stockholder approval pursuant to
applicable laws or regulations.
B.
Options
to purchase shares of Common Stock may be granted under the Discretionary
Option/Stock Appreciation Right Grant Program and shares of Common Stock
may be
issued under the Stock Issuance Program that are in each instance in excess
of
the number of shares then available for issuance under the Plan, provided
any
excess shares actually issued under those programs shall be held in escrow
until
there is obtained stockholder approval of an amendment sufficiently increasing
the number of shares of Common Stock available for issuance under the Plan.
If
such stockholder approval is not obtained within twelve (12) months after
the
date the first such excess issuances are made, then (i) any unexercised options
granted on the basis of such excess shares shall terminate and cease to be
outstanding and (ii) the Corporation shall promptly refund to the Optionees
and
the Participants the exercise or purchase price paid for any excess shares
issued under the Plan and held in escrow, together with interest (at the
short
term applicable federal rate) for the period the shares were held in escrow,
and
such shares shall thereupon be automatically cancelled and cease to be
outstanding.
V.
USE
OF PROCEEDS
Any
cash
proceeds received by the Corporation from the sale of shares of Common Stock
under the Plan shall be used for general corporate purposes.
VI.
REGULATORY
APPROVALS
A.
The
implementation of the Plan, the granting of any stock option under the Plan
and
the issuance of any shares of Common Stock (i) upon the exercise of any granted
option or (ii) under the Stock Issuance Program shall be subject to the
Corporation's procurement of all approvals and permits required by regulatory
authorities having jurisdiction over the Plan, the stock options granted
under
it and the shares of Common Stock issued pursuant to it.
B.
No
shares
of Common Stock or other assets shall be issued or delivered under the Plan
unless and until there shall have been compliance with all applicable
requirements of Federal and state securities laws, including the filing and
effectiveness of the Form S-8 registration statement for the shares of Common
Stock issuable under the Plan, and all applicable listing requirements of
any
stock exchange (or the Nasdaq National Market, if applicable) on which Common
Stock is then listed for trading.
VII.
NO
EMPLOYMENT/SERVICE RIGHTS
Nothing
in the Plan shall confer upon any Optionee or Participant any right to continue
in Service for any period of specific duration or interfere with or otherwise
restrict in any way the rights of the Corporation (or any Parent or Subsidiary
employing or retaining such person) or of any Optionee or Participant, which
rights are hereby expressly reserved by each, to terminate such person's
Service
at any time for any reason, with or without cause.
VIII.
SECTION
162(M)
A.
STOCK
OPTIONS AND STOCK APPRECIATION RIGHTS.
It
is the
intent of the Corporation that any options or stock appreciation rights granted
under the Plan to a "covered employee" (as that term is defined in
Section 162(m) of the Code) with an exercise price of not less than the
Fair Market Value per share of Common Stock on the date of grant shall qualify
as "qualified performance-based compensation" (within the meaning of Treas.
Reg.
§ 1.162-27(e)) to the extent that options or stock appreciation rights
granted under the Plan may qualify as "qualified performance-based compensation"
and the Plan shall be interpreted consistently with such intent. In furtherance
of the foregoing, if and to the extent that the Corporation intends that
an
option or a stock appreciation right granted under the Plan to any covered
employee shall qualify as qualified performance-based compensation, all
decisions regarding the grant of such option or stock appreciation right
shall
be made only by members of the Committee who qualify as "outside directors"
within the meaning of Treas. Reg. § 1.162-27(e)(3).
B.
PERFORMANCE
AWARDS.
The
Plan
Administrator shall also have the discretionary authority, consistent with
Code
Section 162(m), to structure (i) cash bonuses, (ii) stock options, (iii)
stock
appreciation rights and (iv) stock issuances, including share right awards,
so
that (x) the cash bonuses are only payable, (y) the shares of Common Stock
received upon exercise of the stock option or stock appreciation right and
(z)
the shares of Common Stock subject to such stock issuances shall only vest
or be
issuable upon the achievement of certain pre-established objective corporate
performance goals based on one or more of the following criteria:
(1) earnings per share; (2) revenues or margins; (3) cash flow;
(4) operating margin; (5) return on net assets, investment, capital,
or equity; (6) direct contribution; (7) net income; pretax earnings;
(8) earnings before interest and taxes; earnings before interest, taxes,
depreciation and amortization; earnings after interest expense and before
extraordinary or special items; operating income; income before interest
income
or expense, unusual items and income taxes, local, state or federal and
excluding budgeted and actual bonuses which might be paid under any ongoing
bonus plans of the Company; (9) working capital; (10) management of
fixed costs or variable costs; (11) identification or consummation of
investment opportunities or completion of specified projects in accordance
with
corporate business plans, including strategic mergers, acquisitions or
divestitures; (12) total shareholder return; and (13) debt reduction.
In addition, such performance goals may be based upon the attainment of
specified levels of the Corporation’s performance under one or more of the
measures described above relative to the performance of other entities and
may
also be based on the performance of any of the Corporation’s business units or
divisions or any Parent or Subsidiary. Performance goals may include a minimum
threshold level of performance below which no award will be earned, levels
of
performance at which specified portions of an award will be earned and a
maximum
level of performance at which an award will be fully earned. In furtherance
of
the foregoing, if and to the extent that the Corporation intends that an
award
granted under the Plan pursuant to this paragraph to any covered employee
shall
qualify as qualified performance-based compensation, all decisions regarding
the
grant of such award shall be made only by members of the Committee who qualify
as "outside directors" within the meaning of Treas. Reg.
§ 1.162-27(e)(3).
APPENDIX
The
following definitions shall be in effect under the Plan:
A.
ASSUMED
OPTIONS shall mean the stock options assumed by the Corporation from Acacia
Research that were exercisable for Acacia Research - CombiMatrix stock and
which
include, but are not limited to, the options outstanding as of the date of
the
Transaction that were granted under the Acacia Research Corporation 2002
CombiMatrix Stock Incentive Plan, the CombiMatrix Corporation 1998 Stock
Option
Plan, the CombiMatrix Corporation 2000 Stock Awards Plan and the Acacia Research
Corporation 1996 Stock Option Plan.
B.
AUTOMATIC
OPTION GRANT PROGRAM shall mean the automatic option grant program in effect
under Article Four of the Plan.
C.
BOARD
shall mean the Corporation's Board of Directors.
D.
CERTIFICATE
OF INCORPORATION shall mean the Certificate of Incorporation of CombiMatrix
Corporation filed with the Delaware Secretary of State on the Plan Effective
Date and all subsequent amendments, supplements, modifications and replacements
thereof.
E.
CHANGE
IN
CONTROL shall mean a change in ownership or control of the Corporation effected
through any of the following transactions:
(i)
a
stockholder-approved merger or consolidation in which securities possessing
more
than fifty percent (50%) of the total combined voting power of the Corporation's
outstanding securities are transferred to a person or persons different from
the
persons holding those securities immediately prior to such transaction, or
(ii)
a
sale,
transfer or other disposition of all or substantially all of the Corporation's
assets to an entity which is not a Subsidiary of the Corporation, or
(iii)
the
acquisition, directly or indirectly by any person or related group of persons
(other than the Corporation or a person that directly or indirectly controls,
is
controlled by, or is under common control with, the Corporation), of beneficial
ownership (within the meaning of Rule 13d-3 of the 1934 Act) of securities
possessing more than fifty percent (50%) of the total combined voting power
of
the Corporation's outstanding securities pursuant to a tender or exchange
offer
made directly to the Corporation's stockholders.
F.
CODE
shall mean the Internal Revenue Code of 1986, as amended.
G.
COMMITTEE
shall mean the committee of two (2) or more non-employee Board members appointed
by the Board to administer the Discretionary Option/Stock Appreciation Right
Grant Program with respect to Section 16 Insiders.
H.
COMMON
STOCK shall mean the Corporation's Common Stock (as defined in the Certificate
of Incorporation).
I.
CORPORATION
shall mean CombiMatrix Corporation, a Delaware corporation, and any corporate
successor to all or substantially all of the assets or voting stock of
CombiMatrix Corporation, which shall by appropriate action adopt the Plan.
J.
DISCRETIONARY
OPTION/STOCK APPRECIATION RIGHT GRANT PROGRAM shall mean the Discretionary
Option/Stock Appreciation Right Grant Program in effect under Article Two
of the
Plan.
K.
EMPLOYEE
shall mean an individual who is in the employ of the Corporation (or any
Parent
or Subsidiary), subject to the control and direction of the employer entity
as
to both the work to be performed and the manner and method of performance.
L.
EXECUTIVE
OFFICER COMMITTEE
shall
mean the committee comprised of two (2) or more executive officers of the
Corporation appointed by the Board to administer the Discretionary Option/Stock
Appreciation Right Grant Program and Stock Issuance Program with respect
to
persons other than Section 16 Insiders, but subject to the applicable
limitations and requirements of the Delaware Corporate Law.
M.
EXERCISE
DATE shall mean the date on which the Corporation shall have received written
notice of the option exercise.
N.
FAIR
MARKET VALUE per share of Common Stock on any relevant date shall be determined
in accordance with the following provisions:
(i)
If
the
Common Stock is at the time traded on the Nasdaq National Market, then the
Fair
Market Value shall be the closing selling price per share of Common Stock
on the
date in question, as such price is reported on the Nasdaq National Market.
If
there is no closing selling price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(ii)
If
the
Common Stock is at the time listed on any Stock Exchange, then the Fair Market
Value shall be the closing selling price per share of Common Stock on the
date
in question on the Stock Exchange determined by the Plan Administrator to
be the
primary market for the Common Stock, as such price is officially quoted in
the
composite tape of transactions on such exchange. If there is no closing selling
price for the Common Stock on the date in question, then the Fair Market
Value
shall be the closing selling price on the last preceding date for which such
quotation exists.
(iii)
If
the
Common Stock is at the time not traded on the Nasdaq National Market or listed
on any Stock Exchange, but is regularly traded in any over-the-counter market,
then the Fair Market Value shall be the average of the bid and asked prices
per
share of Common Stock in such over-the-counter market on the date in question.
If there are no bid and asked prices on the date in question, then the Fair
Market Value shall be the average of the bid and asked prices in such
over-the-counter market on the last preceding date for which such prices
exist.
(iv)
If
the
Common Stock is at the time not traded as described in (i), (ii) or (iii)
above,
then the Fair Market Value of a share of Common Stock shall be determined
by the
Plan Administrator, after taking into account such factors as it deems
appropriate.
O.
HOSTILE
TAKE-OVER shall mean either of the following events effecting a change in
control or ownership of the Corporation:
(i)
the
acquisition, directly or indirectly, by any person or related group of persons
(other than the Corporation or a person that directly or indirectly controls,
is
controlled by, or is under common control with, the Corporation) of beneficial
ownership (within the meaning of Rule 13d-3 of the 1934 Act) of securities
possessing more than fifty percent (50%) of the total combined voting power
of
the Corporation's outstanding securities pursuant to a tender or exchange
offer
made directly to the Corporation's stockholders which the Board does not
recommend such stockholders to accept, or
(ii)
a
change
in the composition of the Board over a period of thirty-six (36) consecutive
months or less such that a majority of the Board members ceases, by reason
of
one or more contested elections for Board membership, to be comprised of
individuals who either (A) have been Board members continuously since the
beginning of such period or (B) have been elected or nominated for election
as
Board members during such period by at least a majority of the Board members
described in clause (A) who were still in office at the time the Board approved
such election or nomination.
P.
IMMEDIATE
FAMILY shall mean any child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law and shall include adoptive
relationships.
Q.
INCENTIVE
OPTION shall mean an option which satisfies the requirements of Code Section
422.
R.
MISCONDUCT
shall, with respect to any Participant, have the meaning specified in the
Participant’s award agreement. In the absence of any definition in the award
agreement, “Misconduct” shall have the equivalent meaning or the same meaning as
“misconduct” or “cause” set forth in any employment, consulting or other
agreement for the performance of services between the Participant and the
Corporation or, in the absence of any such agreement or any such definition
in
such agreement, such term shall mean the commission of any act of fraud,
embezzlement or dishonesty by the Optionee or Participant, any unauthorized
use
or disclosure by such person of confidential information or trade secrets
of the
Corporation (or any Parent or Subsidiary), or any other intentional misconduct
by such person adversely affecting the business or affairs of the Corporation
(or any Parent or Subsidiary)in a material manner. The foregoing definition
shall not be deemed to be inclusive of all the acts or omissions which the
Corporation (or any Parent or Subsidiary) may consider as grounds for the
dismissal or discharge of any Optionee, Participant or other person in the
Service of the Corporation (or any Parent or Subsidiary).
S.
1934
ACT
shall mean the Securities Exchange Act of 1934, as amended.
T.
NON-STATUTORY
OPTION shall mean an option not intended to satisfy the requirements of Code
Section 422.
U.
OPTIONEE
shall mean any person to whom an option is granted under the Discretionary
Option Grant Program, the Automatic Option Grant Program.
V.
PARENT
shall mean any corporation (other than the Corporation) in an unbroken chain
of
corporations ending with the Corporation, provided each corporation in the
unbroken chain (other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
W.
PARTICIPANT
shall mean any person who is issued shares of Common Stock under the Stock
Issuance Program.
X.
PERMANENT
DISABILITY OR PERMANENTLY DISABLED shall mean the inability of the Optionee
or
the Participant to engage in any substantial gainful activity by reason of
any
medically determinable physical or mental impairment which can be expected
to
result in death or to be of continuous duration of twelve (12) months or
more.
However, solely for purposes of the Automatic Option Grant Program, Permanent
Disability or Permanently Disabled shall mean the inability of the non-employee
Board member to perform his or her usual duties as a Board member by reason
of
any medically determinable physical or mental impairment expected to result
in
death or to be of continuous duration of twelve (12) months or more.
Y.
PLAN
shall mean the Corporation's 2006 Stock Incentive Plan, as set forth in this
document.
Z.
PLAN
ADMINISTRATOR shall mean the particular body, whether the Committee or the
Board, which is authorized to administer the Discretionary Option Grant and
Stock Issuance Programs with respect to one or more classes of eligible persons,
to the extent such entity is carrying out its administrative functions under
those programs with respect to the persons under its jurisdiction.
AA.
PLAN
EFFECTIVE DATE shall mean the date on which the Plan is approved by the
stockholders of the Corporation.
BB.
SECTION
16 INSIDER shall mean an officer or director of the Corporation subject to
the
short-swing profit liabilities of Section 16 of the 1934 Act.
CC.
SERVICE
shall mean the performance of services for the Corporation (or any Parent
or
Subsidiary) by a person in the capacity of an Employee, a non-employee member
of
the board of directors or a consultant or independent advisor, except to
the
extent otherwise specifically provided in the documents evidencing the option
grant or stock issuance.
DD.
STOCK
EXCHANGE shall mean either the, Nasdaq National Market, the American Stock
Exchange or the New York Stock Exchange.
EE.
STOCK
ISSUANCE AGREEMENT shall mean the agreement entered into by the Corporation
and
the Participant at the time of issuance of shares of Common Stock under the
Stock Issuance Program.
FF.
STOCK
ISSUANCE PROGRAM shall mean the stock issuance program in effect under Article
Three of the Plan.
GG.
SUBSIDIARY
shall mean any corporation (other than the Corporation) in an unbroken chain
of
corporations beginning with the Corporation, provided each corporation (other
than the last corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
HH.
TAKE-OVER
PRICE shall mean the greater of (i) the Fair Market Value per share of Common
Stock on the date the option is surrendered to the Corporation in connection
with a Hostile Take-Over or, if applicable, (ii) the highest reported price
per
share of Common Stock paid by the tender offeror in effecting the Hostile
Take-Over through the acquisition of such Common Stock. However, if the
surrendered option is an Incentive Option, the Take-Over Price shall not
exceed
the price per share described in clause (i) above.
II.
10%
STOCKHOLDER shall mean the owner of stock (as determined under Code Section
424(d)) possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Corporation (or any Parent or
Subsidiary).
JJ.
WITHHOLDING
TAXES shall mean the minimum Federal, state and local income and employment
withholding taxes to which the holder of options or unvested shares of Common
Stock may become subject in connection with the exercise of those options
or the
vesting of those shares.
Exhibit
10.4
COMBIMATRIX
CORPORATION
STOCK
OPTION AGREEMENT
R
E C
I T A L S
:
A.
The
Board
has adopted the Plan for the purpose of retaining the services of selected
Employees, non-employee members of the Board or of the board of directors of
any
Parent or Subsidiary and consultants and other independent advisors who provide
services to the Corporation (or any Parent or Subsidiary).
B.
Optionee
is to render valuable services to the Corporation (or a Parent or Subsidiary),
and this Agreement is executed pursuant to, and is intended to carry out the
purposes of, the Plan in connection with the Corporation's grant of an option
to
Optionee.
C.
All
capitalized terms in this Agreement shall have the meaning assigned to them
in
the attached Appendix.
NOW,
THEREFORE, it is hereby agreed as follows:
1.
GRANT
OF
OPTION. The Corporation hereby grants to Optionee, as of the Grant Date, an
option to purchase up to the number of Option Shares specified in the Grant
Notice. The Option Shares shall be purchasable from time to time during the
option term specified in Paragraph 2 hereof at the Exercise Price.
2.
OPTION
TERM. This option shall have a maximum term of ten (10) years
[change
term to 5 years if this option is an ISO and Optionee owns (actually or
constructively) more than 10% of the total combined voting power of all classes
of stock of the Corporation or any parent or subsidiary of the
Corporation]
measured
from the Grant Date and shall accordingly expire at the close of business on
the
Expiration Date, unless sooner terminated in accordance with Paragraph 5 or
6
hereof.
3.
LIMITED
TRANSFERABILITY. This option shall be neither transferable nor assignable by
Optionee other than by will or by the laws of descent and distribution following
Optionee's death and may be exercised, during Optionee's lifetime, only by
Optionee. However, if this option is designated a Non-Statutory Option in the
Grant Notice, then this option may be assigned in whole or in part during
Optionee's lifetime to one or more members of the Optionee's Immediate Family
or
to a trust established for the exclusive benefit of Optionee or one or more
members of the Optionee's Immediate Family or to the Optionee's former spouse,
to the extent such assignment is in connection with Optionee's estate plan
or
pursuant to a domestic relations order. The assigned portion shall be
exercisable only by the person or persons who acquire a proprietary interest
in
the option pursuant to such assignment. The terms applicable to the assigned
portion shall be the same as those in effect for this option immediately prior
to such assignment. Notwithstanding the foregoing, the Optionee may also
designate one or more persons as the beneficiary or beneficiaries of this option
and this option shall, in accordance with such designation, automatically be
transferred to such beneficiary or beneficiaries upon the Optionee's death
while
holding this option. Such beneficiary or beneficiaries shall take the
transferred option subject to all the terms and conditions of this Agreement,
including (without limitation) the limited time period during which the option
may be exercised following the Optionee's death.
4.
DATES
OF
EXERCISE. This option shall become exercisable for the Option Shares in one
or
more installments as specified in the Grant Notice. As the option becomes
exercisable for such installments, those installments shall accumulate, and
the
option shall remain exercisable for the accumulated installments until the
Expiration Date or sooner termination of the option term under Paragraph 5
or 6
hereof.
5.
CESSATION
OF SERVICE. The option term specified in Paragraph 2 hereof shall terminate
(and
this option shall cease to be outstanding) prior to the Expiration Date should
any of the following provisions become applicable:
(a)
Should
Optionee cease to remain in Service for any reason (other than death, Permanent
Disability or Misconduct) while this option is outstanding, then Optionee shall
have a period of three (3) months (commencing with the date of such cessation
of
Service) during which to exercise this option, but in no event shall this option
be exercisable at any time after the Expiration Date.
(b)
Should
Optionee die while this option is outstanding, then the personal representative
of Optionee's estate or the person or persons to whom the option is transferred
pursuant to Optionee's will or in accordance with the laws of descent and
distribution or any person or trust to whom all or a portion of this option
is
transferred in accordance with Paragraph 3 hereof or the designated beneficiary
or beneficiaries of this option shall have the right to exercise this option.
Such right shall lapse, and this option shall cease to be outstanding, upon
the
earlier of (i) the expiration of the twelve (12)-month period measured from
the
date of Optionee's death or (ii) the Expiration Date.
(c)
Should
Optionee cease Service by reason of Permanent Disability while this option
is
outstanding, then Optionee shall have a period of twelve (12) months (commencing
with the date of such cessation of Service) during which to exercise this
option. In no event shall this option be exercisable at any time after the
Expiration Date.
(d)
During
the limited period of post-Service exercisability, this option may not be
exercised in the aggregate for more than the number of vested Option Shares
for
which the option is exercisable at the time of Optionee's cessation of Service.
Upon the expiration of such limited exercise period or (if earlier) upon the
Expiration Date, this option shall terminate and cease to be outstanding for
any
vested Option Shares for which the option has not been exercised. However,
this
option shall, immediately upon Optionee's cessation of Service for any reason,
terminate and cease to be outstanding with respect to any Option Shares for
which this option is not otherwise at that time exercisable.
(e)
Should
Optionee's Service be terminated for Misconduct, then this option shall
terminate immediately and cease to remain outstanding.
6.
SPECIAL
ACCELERATION OF OPTION. This option may vest on an accelerated basis in
connection with a Change in Control or a Hostile Takeover pursuant to the terms
of the Plan.
7.
ADJUSTMENT
IN OPTION SHARES. Should any change be made to the Common Stock by reason of
any
stock split, stock dividend, recapitalization, combination of shares, exchange
of shares or other change affecting the outstanding Common Stock as a class
without the Corporation's receipt of consideration, appropriate adjustments
shall be made to (i) the total number and/or class of securities subject to
this
option and (ii) the Exercise Price in order to reflect such change and thereby
preclude a dilution or enlargement of benefits hereunder.
8.
STOCKHOLDER
RIGHTS. The holder of this option shall not have any stockholder rights with
respect to the Option Shares until such person shall have exercised the option,
paid the Exercise Price and become a holder of record of the purchased
shares.
9.
MANNER
OF
EXERCISING OPTION.
(a)
In
order
to exercise this option with respect to all or any part of the Option Shares
for
which this option is at the time exercisable, Optionee (or any other person
or
persons exercising the option) must take the following actions:
(i)
Execute
and deliver to the Corporation a Notice of Exercise for the Option Shares for
which the option is exercised.
(ii)
Pay
the
aggregate Exercise Price for the purchased shares in one or more of the
following forms:
(A)
cash
or
check made payable to the Corporation;
(B)
shares
of
Common Stock held by Optionee (or any other person or persons exercising the
option) for the requisite period necessary to avoid a charge to the
Corporation's earnings for financial reporting purposes and valued at Fair
Market Value on the Exercise Date; or
(C)
to
the
extent the option is exercised for vested Option Shares, through a special
sale
and remittance procedure pursuant to which Optionee (or any other person or
persons exercising the option) shall concurrently provide irrevocable
instructions (I) to a Corporation-designated brokerage firm to effect the
immediate sale of the purchased shares and remit to the Corporation, out of
the
sale proceeds available on the settlement date, sufficient funds to cover the
aggregate Exercise Price payable for the purchased shares plus all applicable
Federal, state and local income and employment taxes required to be withheld
by
the Corporation by reason of such exercise and (II) to the Corporation to
deliver the certificates for the purchased shares directly to such brokerage
firm in order to complete the sale.
Except
to
the extent the sale and remittance procedure is utilized in connection with
the
option exercise, payment of the Exercise Price must accompany the Notice of
Exercise delivered to the Corporation in connection with the option
exercise.
(iii)
Furnish
to the Corporation appropriate documentation that the person or persons
exercising the option (if other than Optionee) have the right to exercise this
option.
(iv)
Make
appropriate arrangements with the Corporation (or Parent or Subsidiary employing
or retaining Optionee) for the satisfaction of all Federal, state and local
income and employment tax withholding requirements applicable to the option
exercise.
(b)
As
soon
as practical after the Exercise Date, the Corporation shall issue to or on
behalf of Optionee (or any other person or persons exercising this option)
a
certificate for the purchased Option Shares, with the appropriate legends
affixed thereto. To the extent any such Option Shares are unvested, the
certificates for those Option Shares shall be endorsed with an appropriate
legend evidencing the Corporation's repurchase rights and may be held in escrow
with the Corporation until such shares vest.
(c)
In
no
event may this option be exercised for any fractional shares.
10.
NO
IMPAIRMENT OF RIGHTS. This Agreement shall not in any way affect the right
of
the Corporation to adjust, reclassify, reorganize or otherwise make changes
in
its capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets. In addition,
this
Agreement shall not in any way be construed or interpreted so as to affect
adversely or otherwise impair the rights of the Corporation (or any Parent
or
Subsidiary employing or retaining Optionee) or of Optionee, which rights are
hereby expressly reserved by each, to terminate Optionee's Service at any time
for any reason, with or without cause.
11.
COMPLIANCE
WITH LAWS AND REGULATIONS.
(a)
The
exercise of this option and the issuance of the Option Shares upon such exercise
shall be subject to compliance by the Corporation and Optionee with all
applicable requirements of law relating thereto and with all applicable
regulations of any Stock Exchange (or the Nasdaq National Market, if applicable)
on which the Common Stock may be listed for trading at the time of such exercise
and issuance.
(b)
The
inability of the Corporation to obtain approval from any regulatory body having
authority deemed by the Corporation to be necessary to the lawful issuance
and
sale of any Common Stock pursuant to this option shall relieve the Corporation
of any liability with respect to the non-issuance or sale of the Common Stock
as
to which such approval shall not have been obtained. The Corporation, however,
shall use its best efforts to obtain all such approvals.
12.
SUCCESSORS
AND ASSIGNS. Except to the extent otherwise provided in Paragraphs 3 and 6
hereof, the provisions of this Agreement shall inure to the benefit of, and
be
binding upon, the Corporation and its successors and assigns and Optionee,
Optionee's assigns and the legal representatives, heirs and legatees of
Optionee's estate.
13.
NOTICES.
Any notice required to be given or delivered to the Corporation under the terms
of this Agreement shall be in writing and addressed to the Corporation at its
principal corporate offices. Any notice required to be given or delivered to
Optionee shall be in writing and addressed to Optionee at the address indicated
below Optionee's signature line on the Grant Notice. All notices shall be deemed
effective upon personal delivery or upon deposit in the U.S. mail, postage
prepaid and properly addressed to the party to be notified.
14.
CONSTRUCTION.
This Agreement and the option evidenced hereby are made and granted pursuant
to
the Plan and are in all respects limited by and subject to the terms of the
Plan. All decisions of the Plan Administrator with respect to any question
or
issue arising under the Plan or this Agreement shall be conclusive and binding
on all persons having an interest in this option.
15.
GOVERNING
LAW. The interpretation, performance and enforcement of this Agreement shall
be
governed by the laws of the State of Delaware without resort to that State's
conflict-of-laws rules.
16.
EXCESS
SHARES. If the Option Shares covered by this Agreement exceed, as of the Grant
Date, the number of shares of Common Stock which may without stockholder
approval be issued under the Plan, then this option shall be void with respect
to those excess shares, unless stockholder approval of an amendment sufficiently
increasing the number of shares of Common Stock issuable under the Plan is
obtained in accordance with the provisions of the Plan.
17.
ADDITIONAL
TERMS APPLICABLE TO AN INCENTIVE OPTION. In the event this option is designated
an Incentive Option in the Grant Notice, the option is intended to be an
incentive stock option as described in Code Section 422, but the
Corporation does not represent or warrant that the option qualifies as such.
The
Optionee should consult with the Optionee's own tax advisors regarding the
tax
effects of this option and the requirements necessary to obtain favorable income
tax treatment under Code Section 422, including, but not limited to,
holding period requirements with respect to the Option Shares after exercise
of
this option. In addition, the following terms and conditions shall also apply
to
the grant:
(a)
This
option shall cease to qualify for favorable tax treatment as an Incentive Option
if (and to the extent) this option is exercised for one or more Option Shares:
(A) more than three (3) months after the date Optionee ceases to be an Employee
for any reason other than death or Permanent Disability or (B) more than twelve
(12) months after the date Optionee ceases to be an Employee by reason of
Permanent Disability.
(b)
No
installment under this option shall qualify for favorable tax treatment as
an
Incentive Option if (and to the extent) the aggregate Fair Market Value
(determined at the Grant Date) of the Common Stock for which such installment
first becomes exercisable hereunder would, when added to the aggregate value
(determined as of the respective date or dates of grant) of the Common Stock
or
other securities for which this option or any other Incentive Options granted
to
Optionee prior to the Grant Date (whether under the Plan or any other option
plan of the Corporation or any Parent or Subsidiary) first become exercisable
during the same calendar year, exceed One Hundred Thousand Dollars ($100,000)
in
the aggregate. Should such One Hundred Thousand Dollar ($100,000) limitation
be
exceeded in any calendar year, this option shall nevertheless become exercisable
for the excess shares in such calendar year as a Non-Statutory
Option.
(c)
Should
the exercisability of this option be accelerated upon a Change in Control,
then
this option shall qualify for favorable tax treatment as an Incentive Option
only to the extent the aggregate Fair Market Value (determined at the Grant
Date) of the Common Stock for which this option first becomes exercisable in
the
calendar year in which the Change in Control occurs does not, when added to
the
aggregate value (determined as of the respective date or dates of grant) of
the
Common Stock or other securities for which this option or one or more other
Incentive Options granted to Optionee prior to the Grant Date (whether under
the
Plan or any other option plan of the Corporation or any Parent or Subsidiary)
first become exercisable during the same calendar year, exceed One Hundred
Thousand Dollars ($100,000) in the aggregate. Should the applicable One Hundred
Thousand Dollar ($100,000) limitation be exceeded in the calendar year of such
Change in Control, the option may nevertheless be exercised for the excess
shares in such calendar year as a Non-Statutory Option.
(d)
Should
Optionee hold, in addition to this option, one or more other options to purchase
Common Stock which become exercisable for the first time in the same calendar
year as this option, then the foregoing limitations on the exercisability of
such options as Incentive Options shall be applied on the basis of the order
in
which such options are granted.
APPENDIX
The
following definitions shall be in effect under the Agreement:
A.
AGREEMENT
shall mean this Stock Option Agreement.
B.
BOARD
shall mean the Corporation's Board of Directors.
C.
CERTIFICATE
OF INCORPORATION shall mean the Certificate of Incorporation of CombiMatrix
Corporation as filed with the Delaware Secretary of State and all subsequent
amendments, supplements, modifications and replacements thereof.
D.
CHANGE
IN
CONTROL shall mean a change in ownership or control of the Corporation effected
through any of the following transactions:
(i)
a
stockholder-approved merger or consolidation in which securities possessing
more
than fifty percent (50%) of the total combined voting power of the Corporation's
outstanding securities are transferred to a person or persons different from
the
persons holding those securities immediately prior to such transaction,
or
(ii)
a
sale,
transfer or other disposition of all or substantially all of the Corporation's
assets to an entity which is not a Subsidiary of the Corporation,
or
(iii)
the
acquisition, directly or indirectly by any person or related group of persons
(other than the Corporation or a person that directly or indirectly controls,
is
controlled by, or is under common control with, the Corporation), of beneficial
ownership (within the meaning of Rule 13d-3 of the 1934 Act) of securities
possessing more than fifty percent (50%) of the total combined voting power
of
the Corporation's outstanding securities pursuant to a tender or exchange offer
made directly to the Corporation's stockholders.
E.
CODE
shall mean the Internal Revenue Code of 1986, as amended.
F.
COMMON
STOCK shall mean shares of the Corporation's Common Stock (as defined in the
Certificate of Incorporation).
G.
CORPORATION
shall mean CombiMatrix Corporation, a Delaware corporation and any corporate
successor to all or substantially all of the assets or the voting stock of
CombiMatrix Corporation that has by appropriate action assumed this
option.
H.
EMPLOYEE
shall mean an individual who is in the employ of the Corporation (or any Parent
or Subsidiary), subject to the control and direction of the employer entity
as
to both the work to be performed and the manner and method of
performance.
I.
EXERCISE
DATE shall mean the date on which the option shall have been exercised in
accordance with Paragraph 9 hereof.
J.
EXERCISE
PRICE shall mean the exercise price per Option Share as specified in the Grant
Notice.
K.
EXPIRATION
DATE shall mean the date on which the option expires as specified in the Grant
Notice.
L.
FAIR
MARKET VALUE per share of Common Stock on any relevant date shall be determined
in accordance with the following provisions:
(i)
If
the
Common Stock is at the time traded on the Nasdaq National Market, then the
Fair
Market Value shall be the closing selling price per share of Common Stock on
the
date in question, as the price is reported on the Nasdaq National Market. If
there is no closing selling price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(ii)
If
the
Common Stock is at the time listed on any Stock Exchange, then the Fair Market
Value shall be the closing selling price per share of Common Stock on the date
in question on the Stock Exchange determined by the Plan Administrator to be
the
primary market for the Common Stock, as such price is officially quoted in
the
composite tape of transactions on such exchange. If there is no closing selling
price for the Common Stock on the date in question, then the Fair Market Value
shall be the closing selling price on the last preceding date for which such
quotation exists.
(iii)
If
the Common Stock is at the time not traded on the Nasdaq National Market or
listed on any Stock Exchange, but is regularly traded in any over-the-counter
market, then the Fair Market Value shall be the average of the bid and asked
prices per share of Common Stock in such over-the-counter market on the date
in
question. If there are no bid and asked prices on the date in question, then
the
Fair Market Value shall be the average of the bid and asked prices in such
over-the-counter market on the last preceding date for which such prices exist.
(iv)
If
the
Common Stock is at the time not traded as described in (i), (ii) or (iii) above,
then the Fair Market Value of a share of Common Stock shall be determined by
the
Plan Administrator, after taking into account such factors as it deems
appropriate.
M.
GRANT
DATE shall mean the date of grant of the option as specified in the Grant
Notice.
N.
GRANT
NOTICE shall mean the Notice of Grant of Stock Option accompanying the
Agreement, pursuant to which Optionee has been informed of the basic terms
of
the option evidenced hereby.
O.
HOSTILE
TAKE-OVER shall mean either of the following events effecting a change in
control or ownership of the Corporation:
(i)
the
acquisition, directly or indirectly, by any person or related group of persons
(other than the Corporation or a person that directly or indirectly controls,
is
controlled by, or is under common control with, the Corporation) of beneficial
ownership (within the meaning of Rule 13d-3 of the 1934 Act) of securities
possessing more than fifty percent (50%) of the total combined voting power
of
the Corporation's outstanding securities pursuant to a tender or exchange offer
made directly to the Corporation's stockholders which the Board does not
recommend such stockholders to accept, or
(ii)
a
change
in the composition of the Board over a period of thirty-six (36) consecutive
months or less such that a majority of the Board members ceases, by reason
of
one or more contested elections for Board membership, to be comprised of
individuals who either (A) have been Board members continuously since the
beginning of such period or (B) have been elected or nominated for election
as
Board members during such period by at least a majority of the Board members
described in clause (A) who were still in office at the time the Board approved
such election or nomination.
P.
IMMEDIATE
FAMILY shall mean any child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law and shall include adoptive
relationships.
Q.
INCENTIVE
OPTION shall mean an option which satisfies the requirements of Code Section
422.
R.
MISCONDUCT
shall mean the commission of any act of fraud, embezzlement or dishonesty by
Optionee, any unauthorized use or disclosure by Optionee of confidential
information or trade secrets of the Corporation (or any Parent or Subsidiary),
or any other intentional misconduct by Optionee adversely affecting the business
or affairs of the Corporation (or any Parent or Subsidiary) in a material
manner. The foregoing definition shall not be deemed to be inclusive of all
the
acts or omissions which the Corporation (or any Parent or Subsidiary) may
consider as grounds for the dismissal or discharge of Optionee or any other
person in the Service of the Corporation (or any Parent or
Subsidiary).
S.
NON-STATUTORY
OPTION shall mean an option not intended to satisfy the requirements of Code
Section 422.
T.
NOTICE
OF
EXERCISE shall mean the notice of exercise in the form attached hereto as
Exhibit I.
U.
OPTION
SHARES shall mean the number of shares of Common Stock subject to the option
as
specified in the Grant Notice.
V.
OPTIONEE
shall mean the person to whom the option is granted as specified in the Grant
Notice.
W.
PARENT
shall mean any corporation (other than the Corporation) in an unbroken chain
of
corporations ending with the Corporation, provided each corporation in the
unbroken chain (other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
X.
PERMANENT
DISABILITY shall mean the inability of Optionee to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or has lasted or can be
expected to last for a continuous period of twelve (12) months or
more.
Y.
PLAN
shall mean the Corporation's 2006 CombiMatrix Stock Incentive Plan.
Z.
PLAN
ADMINISTRATOR shall mean either the Board or a committee of the Board acting
in
its capacity as administrator of the Plan.
AA.
SERVICE
shall mean the Optionee's performance of services for the Corporation (or any
Parent or Subsidiary) in the capacity of an Employee, a non-employee member
of
the board of directors or a consultant or independent advisor.
BB.
STOCK
EXCHANGE shall mean the American Stock Exchange or the New York Stock
Exchange.
CC.
SUBSIDIARY
shall mean any corporation (other than the Corporation) in an unbroken chain
of
corporations beginning with the Corporation, provided each corporation (other
than the last corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
EXHIBIT
I
NOTICE
OF EXERCISE
I
hereby
notify CombiMatrix Corporation (the "Corporation") that I elect to purchase
_____________________ shares (the "Purchased Shares") of the Corporation's
Common Stock ("Common Stock") at the option exercise price of _____________
per
share (the "Exercise Price") pursuant to that certain option granted to me
under
the Corporation’s 2006 CombiMatrix Stock Incentive Plan on
_____________________, 200_ (the "Option").
Type
of Option
_____
Incentive
Option
_____
Non-Statutory
Option
Concurrently
with the delivery of this Notice of Exercise to the Corporation, I shall pay
to
the Corporation the Exercise Price for the Purchased Shares in accordance with
the provisions of my agreement with the Corporation (or other documents)
evidencing the Option and shall deliver whatever additional documents may be
required by such agreement as a condition for exercise.
_______________________________________,
200_
Date
|
|
|
_______________________________
Signature
of Optionee
Print
Name:___________________________
|
|
Address:
____________________________
_______________________________
|
Print
name in exact manner it is to appear on the stock
certificate:
|
_______________________________
|
|
|
Address
to which certificate is to be sent, if different from address
above:
|
_______________________________
_______________________________
|
Social
Security Number:
|
_______________________________
|
EXHIBIT
10.8
FORM
OF
INDEMNIFICATION AGREEMENT
THIS
AGREEMENT is made as of December _____, 2006, by and between CombiMatrix
Corporation, a Delaware corporation (the “Company”), and _________________., one
of the Directors of the Company (the “
Indemnitee
”),
with
reference to the following facts:
R
E C I T
A L S:
The
Indemnitee is currently serving as a Director of the Company and the Company
wishes the Indemnitee to continue in such capacity. The Indemnitee is willing,
under certain circumstances, to continue serving as a Director of the Company.
Section
145 of the General Corporation Law of the State of Delaware, under which Law
the
Company is organized, empowers corporations to indemnify a person serving as
a
director, officer, employee or agent of the corporation and a person who serves
at the request of the corporation as a director, officer, employee or agent
of
another corporation, partnership, joint venture, trust, or other enterprise,
and
said Section 145 specifies that the indemnification set forth in said Section
145 shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors or otherwise.
In
order
to induce the Indemnitee to continue to serve as a Director of the Company
and
in consideration of his continued service, the Company has determined and agreed
to enter into this agreement with the Indemnitee.
NOW,
THEREFORE, in consideration of the Indemnitee’s continued service as a Director
of the Company, the parties hereto agree as follows:
INDEMNITY.
The Company will indemnify the Indemnitee, his executors, administrators or
assigns, for any Damages or Expenses (as defined below) which the Indemnitee
is
or becomes legally obligated to pay in connection with any Proceeding. As used
in this Agreement the term “Proceeding” shall include any threatened, pending or
completed claim, action, suit or proceeding, whether brought by or in the right
of the Company or otherwise and whether of a civil, criminal, administrative
or
investigative nature, in which the Indemnitee may be or may have been involved
as a party or otherwise, by reason of the fact that Indemnitee is or was a
director or officer of the Company, by reason of any actual or alleged error
or
misstatement or misleading statement or omission made or suffered by the
Indemnitee, by reason of any action taken by him or of any inaction on his
part
while acting as such director or officer, or by reason of the fact that the
Indemnitee was serving at the request of the Company as a director, trustee,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise; provided, that in each such case Indemnitee acted
in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the Company, and, in the case of a criminal proceeding,
in addition had no reasonable cause to believe that his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order, settlement
or conviction, or upon a plea of
nolo
contendere
or its
equivalent, shall not, of itself, create a presumption that such Indemnitee
did
not act in good faith and in a manner which he reasonably believed to be in
or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful. As used in this Agreement, the term “other enterprise” shall
include (without limitation) employee benefit plans and administrative
committees thereof, and the term “fines” shall include (without limitation) any
excise tax assessed with respect to any employee benefit plan. References to
“serving at the request of the Corporation” shall include any service as a
director, officer, employee or agent of the Corporation which imposes duties
on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries, and if such
Indemnitee acted in good faith and in a manner he reasonably believed to be
in
the interest of the participants and beneficiaries of an employee benefit plan
he shall be deemed to have acted in a manner “not opposed to the best interests
of the Company” as referred to above.
EXPENSES.
As used in this Agreement, the term “Expenses” shall include, without
limitation, damages, judgments, fines, penalties, settlements and costs,
attorneys’ fees and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement and the term “Damages” shall include damages, judgments,
fines, penalties and settlements.
ENFORCEMENT.
If a claim or request under this Agreement is not paid by the Company, or on
its
behalf, within thirty days after a written claim or request has been received
by
the Company, the Indemnitee may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim or request and if successful
in whole or in part, the Indemnitee shall be entitled to be paid also the
Expenses of prosecuting such suit. The Company shall have the right to recoup
from the Indemnitee the amount of any item or items of Expenses (other than
Damages) theretofore paid by the Company pursuant to this Agreement, to the
extent such Expenses are not reasonable in nature or amount; provided, however,
that the Company shall have the burden of proving such Expenses to be
unreasonable. The burden of proving that the Indemnitee is not entitled to
indemnification for any other reason shall be upon the Company.
SUBROGATION.
In the event that the Company pays any Expenses under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to
bring
suit to enforce such rights.
EXCLUSIONS.
Notwithstanding the foregoing, the Company shall not be liable under this
Agreement to pay any Expenses in connection with any Proceeding:
to
the
extent that payment of such Expenses is actually made to the Indemnitee under
a
valid, enforceable and collectible insurance policy;
to
the
extent that the Indemnitee is indemnified and actually paid otherwise than
pursuant to this Agreement;
in
connection with a judicial action by or in the right of the Company, in respect
of any claim, issue or matter as to which the Indemnitee shall have been
adjudged to be liable to the Company unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which such Proceeding
was brought shall determine upon application that, despite the adjudication
of
liability but in view of all the circumstances of the case, the Indemnitee
is
fairly and reasonably entitled to indemnity for such Expenses as such court
shall deem proper;
if
it is
proved by final judgment in a court of law or other final adjudication that
the
Indemnitee had in fact gained any personal profit or advantage to which he
was
not legally entitled;
for
a
disgorgement of profits made from the purchase and sale by the Indemnitee of
securities pursuant to Section 16(b) of the Securities Exchange Act of 1934
and
amendments thereto or similar provisions of any state statutory law or common
law;
brought
about or contributed to by the dishonesty of the Indemnitee seeking payment
hereunder; however, notwithstanding the foregoing, the Indemnitee shall be
protected under this Agreement as to any Proceeding brought against him by
reason of any alleged dishonesty on such Indemnitee’s part, unless a judgment or
other final adjudication thereof adverse to such Indemnitee shall establish
that
he committed (i) acts of active and deliberate dishonesty, (ii) with actual
dishonest purpose and intent and (iii) such acts were material to the cause
of
action so adjudicated; or
for
any
Damages which the Company is prohibited by applicable law from paying as
indemnity.
INDEMNIFICATION
OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee has been successful on the merits
or otherwise in defense of any Proceeding or in defense of any claim, issue
or
matter therein, including dismissal without prejudice, Indemnitee shall be
indemnified against any and all Expenses actually and reasonably incurred in
connection therewith.
PARTIAL
INDEMNIFICATION. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of Expenses,
but not, however, for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses to which the
Indemnitee is entitled.
ADVANCE
OF EXPENSES. Expenses incurred by the Indemnitee in connection with any
Proceeding, except the amount of any Damages, shall be paid by the Company
in
advance of the final disposition thereof upon request of the Indemnitee that
the
Company pay such Expenses. The Indemnitee hereby undertakes to repay to the
Company the amount of any Expenses theretofore paid by the Company to the extent
that it is ultimately determined that such Expenses were not reasonable or
that
the Indemnitee is not entitled to indemnification therefor.
APPROVAL
OF PAYMENT OF DAMAGES. No payment of Damages for which indemnity shall be sought
under this Agreement, other than those in respect of judgments and verdicts
actually rendered, shall be incurred without the prior consent of the Company,
which consent shall not be unreasonably withheld.
NOTICE
OF
CLAIM. The Indemnitee, as a condition precedent to his right to be indemnified
under this Agreement, shall give to the Company notice in writing as soon as
reasonably practicable of any Proceeding against any of him for which indemnity
will or could be sought under this Agreement. Notice to the Company shall be
given at its principal office and shall be directed to the Corporate Secretary
(or such other address as the Company shall designate in writing to the
Indemnitee); notice shall be deemed given on the earlier of the date of receipt
or the seventh day after it is sent by properly addressed, prepaid registered
or
certified mail, return receipt requested. In addition, the Indemnitee shall
give
the Company such information and cooperation as it may reasonably require and
as
shall be within the Indemnitee’s power.
COUNTERPARTS.
This Agreement may be executed in any number of counterparts, all of which
taken
together shall constitute one instrument.
INDEMNIFICATION
HEREUNDER NOT EXCLUSIVE. Nothing herein shall be deemed to diminish or otherwise
restrict the Indemnitee’s right to indemnification under any provision of the
Certificate of Incorporation or By-Laws of the Company and amendments thereto
or
under law.
GOVERNING
LAW. This Agreement shall be governed by and construed in accordance with
Delaware law.
SAVING
CLAUSE. Wherever there is conflict between any provision of this Agreement
and
any applicable present or future statute, law or regulation contrary to which
the Company and the Indemnitee have no legal right to contract, the latter
shall
prevail, but in such event the affected provisions of this Agreement shall
be
curtailed and restricted only to the extent necessary to bring them within
applicable legal requirements.
COVERAGE.
The provisions of this Agreement shall apply with respect to the Indemnitee’s
service as a Director of the Company prior to the date of this Agreement and
with respect to all periods of such service after the date of this Agreement,
even though such Indemnitee may have ceased to be a Director of the Company
and
shall inure to the benefit of the heirs, executors and administrators of the
Indemnitee.
SURVIVAL
OF AGREEMENT. For purposes of this Agreement, any reference to the Company”
shall include, in addition to the resulting or surviving corporation, any
constituent corporation (including any constituent of a constituent) absorbed
in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees
or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Agreement with respect to
the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and signed as of the day and year first above written.
|
COMBIMATRIX CORPORATION,
a Delaware corporation
|
|
|
|
By: ____________________________________________
|
|
[Name]
|
|
Its:
[Title]
|
|
|
|
INDEMNITEE:
|
|
___________________________________________
|
|
[Name]
|
5
EXHIBIT 10.18
EMPLOYEE
MATTERS AGREEMENT
by
and
between
ACACIA
RESEARCH CORPORATION
and
COMBIMATRIX
CORPORATION
December
21, 2006
TABLE
OF CONTENTS
Page
ARTICLE
I
DEFINITIONS
|
1
|
Section
1.01
General
|
1
|
|
|
ARTICLE
II
EMPLOYEES
|
3
|
Section
2.01
Employees
|
3
|
Section
2.02
Non-Solicitation
of Employees
|
4
|
|
|
ARTICLE
III
SAVINGS PLANS
|
4
|
|
|
ARTICLE
IV
OPTIONS
|
5
|
|
|
ARTICLE
V
OTHER EMPLOYEE PLANS AND MATTERS
|
5
|
Section
5.01
Welfare
Plans
|
5
|
Section
5.02
Incentive
Compensation Plans
|
6
|
Section
5.03
Deferred
Compensation Plans
|
7
|
Section
5.04
Severance
Pay
|
7
|
Section
5.05
Employment,
Consulting and Other Employee Related Agreements
|
7
|
Section
5.06
Workers
Compensation
|
8
|
Section
5.07
Other
Liabilities
|
8
|
|
|
ARTICLE
VI
MISCELLANEOUS
|
9
|
Section
6.01
Indemnification
|
9
|
Section
6.02
Sharing
of Information
|
9
|
Section
6.03
Entire
Agreement; Construction
|
9
|
Section
6.04
Survival
of Agreements
|
9
|
Section
6.05
Governing
Law
|
9
|
Section
6.06
Notices
|
10
|
Section
6.07
Amendments
|
10
|
Section
6.08
Assignment
|
10
|
Section
6.09
Captions;
Currency
|
10
|
Section
6.10
Severability
|
10
|
Section
6.11
Parties
in Interest
|
11
|
Section
6.12
Schedules
|
11
|
Section
6.13
Termination
|
11
|
Section
6.14
Change
of Name
|
11
|
Section
6.15
Waivers;
Remedies
|
11
|
Section
6.16
Counterparts
|
11
|
Section
6.17
Performance
|
12
|
Section
6.18
Dispute
Resolution
|
12
|
Section
6.19
Cooperation
|
12
|
Section
6.20
Interpretation
|
12
|
EMPLOYEE
MATTERS AGREEMENT
EMPLOYEE
MATTERS AGREEMENT (this “
Agreement
”)
dated
as of December 21, 2006 by and between ACACIA RESEARCH CORPORATION, a
Delaware corporation (“
Acacia
”),
and
COMBIMATRIX CORPORATION, a Delaware corporation (“
CombiMatrix
”),
a
wholly owned subsidiary of Acacia.
WHEREAS,
the Acacia Board of Directors has determined that it is appropriate and
desirable, subject to the terms and conditions set forth in the Distribution
Agreement by and between Acacia and CombiMatrix dated as of the date hereof
(the
“
Distribution
Agreement
”),
to
distribute all outstanding shares of CombiMatrix Common Stock on a pro rata
basis to the holders of CombiMatrix Tracking Stock (the “
Distribution
”);
WHEREAS,
in connection with the Distribution, Acacia and CombiMatrix have determined
that
it is appropriate and desirable to provide for the allocation of certain other
matters relating to employees, employee benefit plans and compensation
arrangements;
NOW,
THEREFORE, in consideration of the premises and the respective agreements and
covenants contained in this Agreement, the parties hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01
General
.
The
following terms have the following meanings (in each case, such meanings to
be
equally applicable to both the singular and plural forms of the terms
defined):
“
Acacia
”
has
the
meaning set forth in the preamble.
“
Acacia
Group
”
means
Acacia Research Corporation and all of its Subsidiaries, excluding any entities
in the CombiMatrix Group.
“
Acacia
Participant
”
means
any individual who, immediately after the Time of Distribution, is (i) an
Active Acacia Employee, (ii) a Former Acacia Employee or
(iii) a beneficiary of either of the foregoing.
“
Acacia
Savings Plan
”
means
the Acacia Technologies Services Corporation 401(k) Savings Plan, including
all
amendments thereto through the Distribution Date.
“
Acacia
Welfare Plans
”
mean
the Welfare Plans maintained by Acacia and its Subsidiaries (excluding members
of the CombiMatrix Group) immediately prior to the Time of
Distribution.
“
Active
Acacia Employee
”
means
any individual who, immediately after the Time of Distribution, will be employed
by a member of the Acacia Group pursuant to Section 2.01(b).
“
Active
CombiMatrix Employee
”
means
any individual who, immediately after the Time of Distribution, will be employed
by a member of the CombiMatrix Group pursuant to Section 2.01(a).
“
Agreement
”
has
the
meaning set forth in the preamble.
“
CombiMatrix
”
has
the
meaning set forth in the preamble.
“
CombiMatrix
Group
”
means
CombiMatrix and all of its Subsidiaries.
“
CombiMatrix
Participant
”
means
any individual who, immediately after the Time of Distribution, is (i) an Active
CombiMatrix Employee, (ii) a Former CombiMatrix Employee or (iii) a beneficiary
of either of the foregoing.
“
CombiMatrix
Savings Plan
”
means
the CombiMatrix Corporation 401(k) Savings Plan, including all amendments
thereto through the Distribution Date.
“CombiMatrix
Tracking Stock
”
means
the Acacia common stock designated for its CombiMatrix Subsidiary prior to
the
Time of Distribution and also referred to as Acacia Research - CombiMatrix
stock.
“
CombiMatrix
Welfare Plans
”
mean
the Welfare Plans maintained by the CombiMatrix Group immediately prior to
the
Time of Distribution.
“
Distribution
”
has
the
meaning set forth in the recitals.
“
Distribution
Agreement
”
has
the
meaning set forth in the recitals.
“
ERISA
”
means
the Employee Retirement Income Security Act of 1974, as amended, or any
successor legislation.
“
Former
Acacia Employee
”
means
any Pre-Distribution Group Employee who is not, immediately after the Time
of
Distribution, an Active Acacia Employee or an Active CombiMatrix Employee,
and
whose most recent active employment was with the Acacia Group.
“
Former
CombiMatrix Employee
”
means
any Pre-Distribution Group Employee who is not, immediately after the Time
of
Distribution, an Active CombiMatrix Employee or an Active Acacia Employee,
and
whose most recent active employment was with the CombiMatrix Group.
“
Incentive
Compensation Plan
”
means
any plan providing for bonuses or other incentive compensation other than a
plan
that provides for equity compensation (such as stock options).
“
Liabilities
”
has
the
meaning set forth in the Distribution Agreement.
“
Pre-Distribution
Group
”
has
the
meaning set forth in the Distribution Agreement.
“
Pre-Distribution
Group Employee
”
means
any individual who was, at any time prior to the Time of Distribution, employed
by Acacia, CombiMatrix or any other member of the Pre-Distribution
Group.
“
Separation
Agreement
”
has
the
meaning set forth in the Distribution Agreement.
“
Subsidiary
”
means,
with respect to any person, any corporation or other organization, whether
incorporated or unincorporated, of which such person or any Subsidiaries of
such
person controls or owns, directly or indirectly, more than 50% of the stock
or
other equity interest, or more than 50% of the voting power entitled to vote
on
the election of members to the board of directors or similar governing body.
Notwithstanding the foregoing, the term “Subsidiary” shall also mean, with
respect to Combimatrix, the following entities: (i) Leuchemix, a California
corporation, and (ii) CombiMatrix K.K., a Japanese corporation.
“
Time
of Distribution
”
means
the effective date of the Distribution.
“
Welfare
Plan
”
means
an employee welfare benefit plan as defined in Section 3(1) of ERISA,
including cafeteria, medical, vision, dental and other health plans, retiree
health plans, life insurance plans, retiree life insurance plans, accidental
death and dismemberment plans, long-term disability plans and severance pay
plans, dependent care reimbursement plans, health care reimbursement plans
and
any other employee welfare benefit and fringe benefit arrangements.
ARTICLE
II
EMPLOYEES
Section
2.01
Employees
.
(a)
Each
individual who is currently employed by a member of the CombiMatrix Group
immediately prior to the Time of Distribution, including those individuals
who
are actively employed or on lay-off, leave, short-term or long-term disability
or other permitted absence from employment will continue to be employed by
a
member of the CombiMatrix Group immediately after the Time of Distribution
and
will be an Active CombiMatrix Employee.
(b)
Each
individual (other than those employed by the CombiMatrix Group immediately
prior
to the Time of Distribution) who is employed by the Acacia Group immediately
prior to the Time of Distribution (including those who are actively employed
or
on lay-off, leave, short-term or long-term disability or other permitted absence
from employment) will be or will continue to be employed by a member of the
Acacia Group immediately after the Time of Distribution and will be an Active
Acacia Employee.
(c)
Effective
as of the Time of Distribution, (i) for immigration purposes CombiMatrix
will be the successor-in-interest to any and all pending or approved visa
petitions (whether with the U.S. Bureau of Citizenship and Immigration Services
or U.S. Department of Labor), including pending or completed Labor Condition
Applications, made by Acacia or any of its Subsidiaries with respect to any
Active CombiMatrix Employees, and CombiMatrix will adopt and accept all
representations made by Acacia in any of these petitions and applications,
(ii) CombiMatrix will adopt any Labor Condition Application included in the
“Public Access Folders” for Active CombiMatrix Employees who have H-1B visas,
and (iii) CombiMatrix will adopt any existing I-9 certifications of Acacia
and its Subsidiaries with respect to Active CombiMatrix Employees.
(d)
Nothing
contained in this Section 2.01 is intended to confer upon any employee of
the CombiMatrix Group or the Acacia Group any right to continued employment
after the Time of Distribution.
Section
2.02
Non-Solicitation
of Employees
.
Without
the express written agreement of both the Chief Executive Officer of Acacia
and
the Chief Executive Officer of CombiMatrix:
(a)
Acacia
agrees not to (and to cause the other members of the Acacia Group not to)
solicit, recruit or hire, directly or indirectly (including by contracting
with
or through an independent contractor, consultant or other third party) any
employee of, or individual providing consulting services to, CombiMatrix or
any
other member of the CombiMatrix Group until eighteen (18) months after the
Time of Distribution or until six (6) months after such employee’s employment
with, or such individual’s provision of consulting services to, CombiMatrix or
any other member of the CombiMatrix Group terminates, whichever occurs
first;
(b)
CombiMatrix
agrees not to (and to cause the other members of the CombiMatrix Group not
to)
solicit, recruit or hire, directly or indirectly (including by contracting
with
or through an independent, contractor, consultant or other third party) any
employee of, or individual providing consulting services to, Acacia or any
other
member of the Acacia Group until 18 months after the Time of Distribution or
until six months after such employee’s employment with, or such individual’s
provision of consulting services to, Acacia or any other member of the Acacia
Group terminates, whichever occurs first; and
(c)
Notwithstanding
the foregoing (but subject to the restriction on hiring), such prohibitions
on
solicitation do not restrict general recruitment efforts carried out through
a
public or general solicitation.
ARTICLE
III
SAVINGS
PLANS
As
of the
Time of Distribution, CombiMatrix maintains the CombiMatrix Retirement Savings
Plan, in which employees of the CombiMatrix Group are eligible to participate.
As of the Time of Distribution, the Acacia Group maintains the Acacia Retirement
Savings Plan, in which employees of the Acacia Group are eligible to
participate. No changes to the current operation of and no transfers between
the
CombiMatrix Retirement Savings Plan and the Acacia Retirement Savings Plan
shall
be required by this Transaction and both plans shall continue in operation
in
accordance with their terms.
ARTICLE
IV
OPTIONS
Acacia
and CombiMatrix will take all action necessary or appropriate so that the
Distribution will be treated as a “change in control” under each Acacia equity
compensation plan where options to purchase shares of CombiMatrix Tracking
Stock
(each an “
Option
”)
are
outstanding. Each such Option that is outstanding immediately prior to the
Time
of Distribution will be fully vested immediately prior to the Time of
Distribution and contingent upon the Distribution and, except as otherwise
specified in this paragraph, will terminate at the Time of Distribution. Acacia
and CombiMatrix will provide written notice to the holders of the Options that
the Options are vesting fully and terminating at the Time of Distribution.
To
the extent that an Option cannot be terminated as of the Time of Distribution
and for any Option held by a person who is no longer an employee of either
the
Acacia Group or the CombiMatrix Group, such Option shall be assumed by the
CombiMatrix Group at the Time of Distribution (an “
Assumed
Option
”)
and
will be appropriately and equitably adjusted as the number of shares purchasable
under such Assumed Option and the per share exercise price for any differences
in the capitalization of CombiMatrix in comparison with Acacia with respect
to
the Acacia-CombiMatrix Stock. Each such Assumed Option will otherwise have
the
same terms and conditions as those in effect immediately prior to the
assumption.
ARTICLE
V
OTHER
EMPLOYEE PLANS AND MATTERS
Section
5.01
Welfare
Plans
.
(a)
Prior
to
the Time of Distribution, Acacia and CombiMatrix will take all action necessary
or appropriate to create a separate Welfare Plan for each of the CombiMatrix
Group and the Acacia Group to the extent that the Acacia Group and the
CombiMatrix Group participate in or sponsor the same Welfare Plan as of the
date
of this Agreement.
(b)
As
of the
Time of Distribution, CombiMatrix will maintain Welfare Plans and other employee
welfare benefit and fringe benefit arrangements (collectively, “
CombiMatrix
Welfare Plans
”)
for
CombiMatrix Participants. As of the Time of Distribution, the Acacia Group
will
maintain Welfare Plans and other employee welfare benefit and fringe benefit
arrangements (collectively, “
Acacia
Welfare Plans
”)
for
Acacia Participants. Except as provided in Section 5.01(a), no changes to the
operation of the CombiMatrix Welfare Plans and the Acacia Welfare Plans shall
be
required in connection with the Distribution and the CombiMatrix Welfare Plans
and the Acacia Welfare Plans shall continue in operation in accordance with
their terms.
(c)
As
of the
Time of Distribution, CombiMatrix (and, if appropriate, the correct member
of
the CombiMatrix Group) will have established, and will cover Active CombiMatrix
Employees under, policies relating to vacation days and personal and sick days.
As of the Time of Distribution, CombiMatrix (and, if appropriate, the correct
member of the CombiMatrix Group) will credit each Active CombiMatrix Employee
with the unused vacation days and personal and sick days accrued by such
employee through the Time of Distribution in accordance with the policies
relating to vacation days and personal and sick days applicable to such employee
in effect immediately prior to the Time of Distribution.
(d)
From
and
after the Time of Distribution, except as specifically set forth in Section
5.06, CombiMatrix (and, if applicable, the appropriate member of the CombiMatrix
Group) hereby assume or retain, as applicable, and will be solely responsible
for and will fully perform, pay and discharge, all Liabilities of the Acacia
Group and the CombiMatrix Group with respect to CombiMatrix Participants (and
claims by or relating to CombiMatrix Participants) with respect to Welfare
Plans
and other employee welfare and fringe benefits arrangements (including, but
not
limited to, medical, dental, life, travel, accident, short- and long-term
disability, hospitalization, workers’ compensation and other insurance
benefits), whether under the Acacia Welfare Plans, the CombiMatrix Welfare
Plans
or otherwise, whether incurred, or arising in connection with incidents
occurring, before, at or after the Time of Distribution and whether any claim
is
made with respect thereto before, at or after the Time of
Distribution.
(e)
From
and
after the Time of Distribution, except as specifically set forth in this
Agreement, Acacia hereby assumes or retains, as applicable, and will be solely
responsible for and will fully perform, pay and discharge, all Liabilities
of
Acacia (including those received by members of the CombiMatrix Group) in respect
of Acacia Participants (and claims by or relating to Acacia Participants) with
respect to Welfare Plans and other employee welfare and fringe benefits
arrangements (including, but not limited to, medical, dental, life, travel,
accident, short- and long-term disability, hospitalization, workers’
compensation and other insurance benefits), whether under the Acacia Welfare
Plans or otherwise, whether incurred, or arising in connection with incidents
occurring, before, at or after the Time of Distribution and whether any claim
is
made with respect thereto before, at or after the Time of
Distribution.
(f)
Acacia
and CombiMatrix acknowledge and agree that neither party has any retiree welfare
plans.
Section
5.02
Incentive
Compensation Plans
.
(a)
From
and
after the Time of Distribution, except as specifically set forth in this
Agreement, Acacia hereby assumes or retains, as applicable, and will be solely
responsible for and will fully perform, pay and discharge, all Liabilities
of
Acacia (including those received by members of the CombiMatrix Group) in respect
of Acacia Participants (and claims by or relating to Acacia Participants) with
respect to all Incentive Compensation Plans, whether incurred, or arising in
connection with incidents occurring, before, at or after the Time of
Distribution and whether any claim is made with respect thereto before, at
or
after the Time of Distribution.
(b)
From
and
after the Time of Distribution, except as specifically set forth in this
Agreement, CombiMatrix hereby assumes or retains, as applicable, and will be
solely responsible for and will fully perform, pay and discharge, all
Liabilities of CombiMatrix (including those received by members of the Acacia
Group) in respect of CombiMatrix Participants (and claims by or relating to
CombiMatrix Participants) with respect to all Incentive Compensation Plans,
whether incurred, or arising in connection with incidents occurring, before,
at
or after the Time of Distribution and whether any claim is made with respect
thereto before, at or after the Time of Distribution.
Section
5.03
Deferred
Compensation Plans
.
Acacia
and CombiMatrix acknowledge and agree that neither party has any nonqualified
deferred compensation plans.
Section
5.04
Severance
Pay
.
(a)
Acacia
and CombiMatrix acknowledge and agree that (i) the transactions
contemplated by the Separation Agreements will not constitute a severance of
employment of any employee of Acacia Group or the CombiMatrix Group prior to
or
as a result thereof and (ii) individuals who, in connection with the
Distribution, become Active Acacia Employees or Active CombiMatrix Employees
pursuant to this Agreement will not be deemed to have experienced a termination,
layoff or severance of employment from the Acacia Group or the CombiMatrix
Group, in each case for purposes of any policy, plan, program or agreement
of
Acacia Group or the CombiMatrix Group that provides for the payment of
severance, salary continuation or similar benefits.
(b)
CombiMatrix
and the CombiMatrix Subsidiaries hereby assume or retain, as applicable, and
will be solely responsible for and will fully perform, pay and discharge, all
Liabilities of the Acacia Group and the CombiMatrix Group in connection with
claims made by or on behalf of CombiMatrix Participants in respect of severance
pay, salary continuation and similar obligations relating to the termination
or
alleged termination (whether voluntary or involuntary) of any such person’s
employment, whether such termination or alleged termination occurred before,
at
or after the Time of Distribution and whether any claim is made with respect
thereto before, at or after the Time of Distribution (whether or not such claim
is based on any severance policy, agreement, arrangement or program which may
exist or arise under any employment, collective bargaining or other agreement
or
under any federal, state, local, provincial or foreign law).
(c)
Acacia
and the Acacia Subsidiaries hereby assume or retain, as applicable, and will
be
solely responsible for and will fully perform, pay and discharge, all
Liabilities of the Acacia Group and the CombiMatrix Group in connection with
claims made by or on behalf of Acacia Participants in respect of severance
pay,
salary continuation and similar obligations relating to the termination or
alleged termination (whether voluntary or involuntary) of any such person’s
employment, whether such termination or alleged termination occurred before,
at
or after the Time of Distribution and whether any claim is made with respect
thereto before, at or after the Time of Distribution (whether or not such claim
is based on any severance policy, agreement, arrangement or program which may
exist or arise under any employment, collective bargaining or other agreement
or
under any federal, state, local, provincial or foreign law).
Section
5.05
Employment,
Consulting and Other Employee Related Agreements
.
(a)
Effective
as of the Time of Distribution, CombiMatrix and the Combimatrix Subsidiaries
hereby assume or retain, as applicable, and will be solely responsible for
and
will fully perform, pay and discharge, all Liabilities of the Acacia Group
and
the CombiMatrix Group relating to all CombiMatrix service providers under their
respective employment, consulting, separation, arbitration and other employee
related agreements with any member of the Pre-Distribution Group, as the same
are in effect immediately prior to the Time of Distribution.
(b)
Effective
as of the Time of Distribution, Acacia and the Acacia Subsidiaries hereby assume
or retain, as applicable, and will be solely responsible for and will fully
perform, pay and discharge, all Liabilities of the Acacia Group and the
CombiMatrix Group relating to all Acacia service providers under their
respective employment, consulting, separation, arbitration and other employee
related agreements with any member of the Pre-Distribution Group, as the same
are in effect immediately prior to the Time of Distribution.
Section
5.06
Workers
Compensation
.
Acacia
and CombiMatrix acknowledge and agree that (i) CombiMatrix has not paid prior
to
the Time of Distribution and will not pay after the Time of Distribution any
costs of workers’ compensation coverage for any Acacia Participants and (ii) to
the extent that Acacia pays the costs for workers’ compensation coverage
(whether through insurance or self-insurance) after the Time of Distribution
for
any CombiMatrix Participant, CombiMatrix shall reimburse Acacia (on a monthly
basis after submission to CombiMatrix of a statement of costs by Acacia) for
all
costs of workers’ compensation coverage that are paid by Acacia after the Time
of Distribution for the CombiMatrix Participants. The determination of the
costs
shall be mutually agreed to by the parties based on the relevant costs,
including, but not limited to any premiums paid, the rate of return foregone
on
any cash deposits and the cost of any payments made for workers’ compensation
claims. Both parties agree to cooperate to transfer the responsibility for
any
workers’ compensation coverage for CombiMatrix Participants that is provided by
Acacia to CombiMatrix within a reasonable period of time after the Time of
Distribution, but in no event later than January 1, 2008.
Section
5.07
Other
Liabilities
.
(a)
From
and
after the Time of Distribution, except as specifically set forth in this
Agreement, CombiMatrix and the Combimatrix Subsidiaries hereby assume or retain,
as applicable, and will be solely responsible for and will fully perform, pay
and discharge, all Liabilities of the Acacia Group and the CombiMatrix Group
arising out of or relating to the employment of CombiMatrix service providers
by
any member of the Pre-Distribution Group, whether pursuant to benefit plans
or
otherwise and whether such Liabilities arose before, at or after the Time of
Distribution or any claim is made with respect thereto before, at or after
the
Time of Distribution.
(b)
From
and
after the Time of Distribution, except as specifically set forth in this
Agreement, Acacia and the Acacia Subsidiaries hereby assumes or retains, as
applicable, and will be solely responsible for and will fully perform, pay
and
discharge, all Liabilities of the Acacia Group and the CombiMatrix Group arising
out of or relating to employment of Acacia service providers by any member
of
the Pre-Distribution Group, whether pursuant to benefit plans or otherwise
and
whether such Liabilities arose before, at or after the Time of Distribution
or
any claim is made with respect thereto before, at or after the Time of
Distribution.
ARTICLE
VI
MISCELLANEOUS
Section
6.01
Indemnification
.
All
Liabilities retained or assumed by or allocated to CombiMatrix or any member
of
the CombiMatrix Group pursuant to this Agreement will be deemed to be solely
the
Liabilities of CombiMatrix, and all Liabilities retained or assumed by or
allocated to Acacia or any or any member of the Acacia Group pursuant to this
Agreement will be deemed to be solely the Liabilities of Acacia, and, in each
case, will be subject to the indemnification provisions set forth in
Article IV of the Distribution Agreement.
Section
6.02
Sharing
of Information
.
Acacia
and CombiMatrix will, and will cause each of the respective members of their
groups to, provide to the other all such information in its possession as the
other may reasonably request to enable the requesting party to administer its
employee benefit plans and programs, and to determine the scope of, and fulfill,
its obligations under this Agreement. Such information will, to the extent
reasonably practicable, be provided in the format and at the times and places
requested, but in no event will the party providing such information be
obligated to incur any direct expense not reimbursed by the party making such
request, nor to make such information available outside its normal business
hours and premises. The right of the parties to receive information hereunder
will, without limiting the generality of the foregoing, extend to any and all
reports, and the data underlying such reports. Any information shared or
exchanged pursuant to this Agreement will be subject to the confidentiality
requirements set forth in the Distribution Agreement.
Section
6.03
Entire
Agreement; Construction
.
This
Agreement, the Distribution Agreement, any other Separation Agreements,
including any annexes, schedules and exhibits hereto or thereto, and other
agreements and documents referred to herein and therein, will together
constitute the entire agreement between the parties with respect to the subject
matter hereof and thereof and will supersede all prior negotiations, agreements
and understandings of the parties of any nature, whether oral or written, with
respect to such subject matter. Notwithstanding any other provisions in any
other agreements to the contrary, in the event and to the extent that there
is a
conflict between the provisions of this Agreement and the provisions of the
Distribution Agreement, the provisions of this Agreement will
control.
Section
6.04
Survival
of Agreements
.
Except
as otherwise contemplated by the Separation Agreements, all covenants and
agreements of the parties contained in this Agreement will remain in full force
and effect and survive the Time of Distribution.
Section
6.05
Governing
Law
.
This
Agreement will be governed by and construed in accordance with the internal
laws
of the State of Delaware applicable to contracts made and to be performed
entirely within such State, without regard to the conflicts of law principles
of
such State.
Section
6.06
Notices
.
All
notices, requests, claims, demands and other communications required or
permitted to be given hereunder will be in writing and will be delivered by
hand
or telecopied, e-mailed or sent, postage prepaid, by registered, certified
or
express mail or reputable overnight courier service and will be deemed given
when so delivered by hand or telecopied, when e-mail confirmation is received
if
delivered by e-mail, or three (3) business days after being so mailed (one
(1)
business day in the case of express mail or overnight courier service). All
such
notices, requests, claims, demands and other communications will be addressed
as
set forth in Section 7.04 of the Distribution Agreement, or pursuant to such
other instructions as may be designated in writing by the party to receive
such
notice.
Section
6.07
Amendments
.
This
Agreement cannot be amended, modified or supplemented except by a written
agreement executed by Acacia and CombiMatrix.
Section
6.08
Assignment
.
Except
as otherwise provided herein, neither party to this Agreement will convey,
assign or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of the other party in its sole
and
absolute discretion. Notwithstanding the foregoing, either party may (without
obtaining any consent) assign all or any portion of its rights and obligations
hereunder to (i) the surviving entity resulting from a merger or
consolidation involving such party, (ii) the acquiring entity in a sale or
other disposition of all or substantially all of the assets of such party as
a
whole or of any line of business or division of such party, or (iii) any
other person that is created as a result of a spin-off from, or similar
reorganization transaction of; such party or any line of business or division
of
such party. In the event of an assignment pursuant to (ii) or (iii) above,
the
nonassigning party shall, at the assigning party’s request, use good faith
commercially reasonable efforts to enter into separate agreements with each
of
the resulting entities and take such further actions as may be reasonably
required to assure that the rights and obligations under this Agreement are
preserved, in the aggregate, and divided equitably between such resulting
entities. Any conveyance, assignment or transfer requiring the prior written
consent of another party pursuant to this Section 6.08 which is made
without such consent will be void
ab
initio
.
No
assignment of this Agreement will relieve the assigning party of its obligations
hereunder.
Section
6.09
Captions;
Currency
.
The
article, section and paragraph captions herein and the table of contents hereto
are for convenience of reference only, do not constitute part of this Agreement
and will not be deemed to limit or otherwise affect any of the provisions
hereof. Unless otherwise specified, all references herein to numbered articles
or sections are to articles and sections of this Agreement and all references
herein to schedules are to schedules to this Agreement. Unless otherwise
specified, all references contained in this Agreement, in any schedule referred
to herein or in any instrument or document delivered pursuant hereto to dollars
or $ will mean United States Dollars.
Section
6.10
Severability
.
If any
provision of this Agreement or the application thereof to any person or
circumstance is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof; or the application
of
such provision to persons or circumstances other than those as to which it
has
been held invalid or unenforceable, will remain in full force and effect and
will in no way be affected, impaired or invalidated thereby. If the economic
or
legal substance of the transactions contemplated hereby is affected in any
manner adverse to any party as a result thereof; the parties will negotiate
in
good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
Section
6.11
Parties
in Interest
.
This
Agreement is binding upon and is for the benefit of the parties hereto and
their
respective successors and permitted assigns. This Agreement is not made for
the
benefit of any person not a party hereto, and no person other than the parties
hereto or their respective successors and permitted assigns will acquire or
have
any benefit, right, remedy or claim under or by reason of this Agreement. No
provision of this Agreement will be construed (a) to limit the right of
Acacia, any member of the Acacia Group, CombiMatrix or any member of the
CombiMatrix Group to amend any plan or terminate their plans, or (b) to
create any right or entitlement whatsoever in any employee, former employee
or
beneficiary including a right to continued employment or to any benefit under
a
plan or any other benefit or compensation.
Section
6.12
Schedules
.
All
schedules attached hereto are hereby incorporated in and made a part of this
Agreement as if set forth in full herein. Capitalized terms used in the
schedules hereto but not otherwise defined therein will have the respective
meanings assigned to such terms in this Agreement.
Section
6.13
Termination
.
This
Agreement may be terminated at any time prior to the Time of Distribution by
and
in the sole discretion of the Acacia Board of Directors without the approval
of
CombiMatrix or Acacia’s stockholders. In the event of any such termination,
neither party will have any liability of any kind to the other party on account
of such termination. This Agreement may not be terminated after the Time of
Distribution.
Section
6.14
Change
of Name
.
On or
promptly after the Time of Distribution, CombiMatrix will take such actions
as
may be required to change the names of all employee benefit plans sponsored
or
maintained by CombiMatrix or any member of the CombiMatrix Group to eliminate
therefrom any reference to “Acacia”, “Acacia Research”, “Acacia Technologies” or
any derivative thereof.
Section
6.15
Waivers;
Remedies
.
No
failure or delay on the part of either Acacia or CombiMatrix in exercising
any
right, power or privilege hereunder will operate as a waiver thereof; nor will
any waiver on the part of either Acacia or CombiMatrix of any right, power
or
privilege hereunder operate as a waiver of any other right, power or privilege
hereunder, nor will any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder. Subject to
Section 6.18, the rights and remedies herein provided are cumulative and
are not exclusive of any rights or remedies which the parties may otherwise
have
at law or in equity.
Section
6.16
Counterparts
.
This
Agreement may be executed in separate counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts will together
constitute the same agreement. This Agreement may be executed and delivered
by
telecopier with the same force and effect as if it were a manually executed
and
delivered counterpart.
Section
6.17
Performance
.
Acacia
will cause to be performed and hereby guarantees the performance of all actions,
agreements and obligations set forth herein to be performed by any member of
the
Acacia Group. CombiMatrix will cause to be performed and hereby guarantees
the
performance of all actions, agreements and obligations set forth herein to
be
performed by any member of the CombiMatrix Group.
Section
6.18
Dispute
Resolution
.
Any
dispute, claim or controversy arising out of or relating to any provision of
this Agreement or the breach, performance or validity thereof will be resolved
in accordance with the procedures set forth in Section 7.05 of the
Distribution Agreement.
Section
6.19
Cooperation
.
Acacia
and CombiMatrix will cooperate in taking all such action as may be necessary
or
appropriate to implement the provisions of this Agreement, including making
all
appropriate filings as may be required under ERISA or the Internal Revenue
Code
of 1986, as amended, the regulations thereunder and any other applicable laws,
exchanging and sharing all appropriate records, amending plan, trust, record
keeping and other related documents and implementing all appropriate
communications with participants.
Section
6.20
Interpretation
.
Any
reference herein to any federal, state, local or foreign law shall be deemed
also to refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. For the purposes of this Agreement, (i) words
in the singular shall be held to include the plural and
vice
versa
and
words of one gender shall be held to include the other gender as the context
requires, (ii) the terms “hereof”, “herein”, and “herewith” and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement,
(iii) the word “including” and words of similar import when used in this
Agreement shall mean “including, without limitation” and (iv) all
references to any plan shall be deemed to include any amendments
thereto.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.]
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly
authorized officers of the parties as of the date first hereinabove
written.
|
ACACIA
RESEARCH CORPORATION
By:____________________________________________
Name:
Title:
|
|
COMBIMATRIX
CORPORATION
By:____________________________________________
Name:
Title:
|
[Signature
Page to Employee Matters Agreement
13
Exhibit
21.1
Subsidiaries
of the Registrant
Advanced
Materials Sciences, Inc.
CombiMatrix
International Holdings Corp.
CombiMatrix
Molecular Diagnostics, Inc.
CombiMatrix
K.K.
Leuchemix,
Inc.
EXHIBIT
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby
consent to the use in this Registration Statement on Form
S-1
of
our report dated March 16, 2006, except for Note 16, which is as of December
22,
2006, relating to the financial statements of CombiMatrix Corporation, which
appears in such Registration Statement. We also consent to the reference to
us
under the heading “Experts” in such Registration Statement.
PricewaterhouseCoopers
LLP
Seattle,
WA
December
22, 2006
EXHIBIT 99.1
[ACACIA
RESEARCH CORPORATION LETTERHEAD]
NOTICE
OF REDEMPTION TO HOLDERS OF
ACACIA
RESEARCH-COMBIMATRIX COMMON STOCK
To
Holders of Acacia Research-Combimatrix Common Stock
:
All
shares of Acacia Research-CombiMatrix common stock outstanding on [REDEMPTION
DATE] will be redeemed in exchange for shares of common stock of Combimatrix
Corporation. Each share of Acacia Research-CombiMatrix common stock shall be
exchanged for one share of CombiMatrix Corporation common stock, as of the
redemption date, [REDEMPTION DATE].
Your
original stock certificates for Acacia Research-CombiMatrix common stock must
be
surrendered at the following address:
[ADDRESS
OF EXCHANGE AGENT]
Upon
receipt of your original stock certificate(s) for Acacia Research-CombiMatrix
common stock at the foregoing address, we will deliver to you an original share
certificate for an equivalent number of shares of CombiMatrix Corporation common
stock issued in the name of the record holder of the Acacia Research-CombiMatrix
common stock.
Dividends
on shares of Acacia Research-CombiMatrix common stock shall cease to be paid
as
of [REDEMPTION DATE],
subject,
however
,
to
Section 2.4(f)(ix) of our Amended and Restated Certificate of
Incorporation.
As
of the
date hereof, there are 41,507,579 shares of Acacia Research-CombiMatrix common
stock issued and outstanding. In addition, there are warrants to acquire
[13,601,863] shares of Acacia Research-CombiMatrix common stock, at exercise
prices ranging from [$_____] to [$_____], with a weighted average exercise
price
of $1.09 per share, and there are options to acquire [8.6 million] shares of
Acacia Research-CombiMatrix common stock at exercise prices ranging from $1.33
to $24.00, with a weighted average exercise price of $5.70.
We
are
exercising our right to redeem all of the issued and outstanding shares of
Acacia Research-CombiMatrix common stock in accordance with Section 2.4(c)
of
our Amended and Restated Certificate of Incorporation. This notice is being
delivered to you in accordance with Section 2.4(f) of our Amended and Restated
Certificate of Incorporation.
Accompanying
this notice is a prospectus dated [DATE OF PROSPECTUS] regarding the issuance
of
CombiMatrix Corporation common stock to you.
Sincerely,
Paul
R.
Ryan,
Chief
Executive Officer
[DATE]
Newport
Beach, California
EXHIBIT 99.2
[ACACIA
RESEARCH CORPORATION LETTERHEAD]
NOTICE
OF REDEMPTION TO HOLDERS OF
ACACIA
RESEARCH-COMBIMATRIX COMMON STOCK
To
Holders of Acacia Research-Combimatrix Options
:
All
shares of Acacia Research-CombiMatrix common stock outstanding on [REDEMPTION
DATE] will be redeemed in exchange for shares of common stock of Combimatrix
Corporation. Each share of Acacia Research-CombiMatrix common stock shall be
exchanged for one share of CombiMatrix Corporation common stock, as of the
redemption date, [REDEMPTION DATE].
Your
original stock certificates for Acacia Research-CombiMatrix common stock must
be
surrendered at the following address:
[ADDRESS
OF EXCHANGE AGENT]
Upon
receipt of your original stock certificate(s) for Acacia Research-CombiMatrix
common stock at the foregoing address, we will deliver to you an original share
certificate for an equivalent number of shares of CombiMatrix Corporation common
stock issued in the name of the record holder of the Acacia Research-CombiMatrix
common stock.
Dividends
on shares of Acacia Research-CombiMatrix common stock shall cease to be paid
as
of [REDEMPTION DATE],
subject,
however
,
to
Section 2.4(f)(ix) of our Amended and Restated Certificate of
Incorporation.
As
of the
date hereof, there are 41,507,579 shares of Acacia Research-CombiMatrix common
stock issued and outstanding. In addition, there are warrants to acquire
[13,601,863] shares of Acacia Research-CombiMatrix common stock, at exercise
prices ranging from [$_____] to [$_____], with a weighted average exercise
price
of $1.09 per share, and there are options to acquire [8.6 million] shares of
Acacia Research-CombiMatrix common stock at exercise prices ranging from $1.33
to $24.00, with a weighted average exercise price of $5.70.
We
are
exercising our right to redeem all of the issued and outstanding shares of
Acacia Research-CombiMatrix common stock in accordance with Section 2.4(c)
of
our Amended and Restated Certificate of Incorporation. This notice is being
delivered to you in accordance with Section 2.4(f) of our Amended and Restated
Certificate of Incorporation.
You
will
be entitled to receive shares of common stock of CombiMatrix Corporation upon
redemption only if you exercise your options into shares of Acacia
Research-CombiMatrix Corporation common stock on or prior to the redemption
date, [REDEMPTION DATE]. Your options will terminate following the redemption
on
[REDEMPTION DATE], and you will not be entitled to exercise your option(s)
following [REDEMPTION DATE].
Accompanying
this notice is a prospectus dated [DATE OF PROSPECTUS] regarding the issuance
of
CombiMatrix Corporation common stock to you in the event you exercise your
options prior to the redemption date.
Sincerely,
Paul
R.
Ryan,
Chief
Executive Officer
[DATE]
Newport
Beach, California
EXHIBIT 99.3
[ACACIA
RESEARCH CORPORATION LETTERHEAD]
NOTICE
OF REDEMPTION TO HOLDERS OF
ACACIA
RESEARCH-COMBIMATRIX COMMON STOCK
To
Holders of Acacia Research-Combimatrix Convertible Securities
:
All
shares of Acacia Research-CombiMatrix common stock outstanding on [REDEMPTION
DATE] will be redeemed in exchange for shares of common stock of Combimatrix
Corporation. Each share of Acacia Research-CombiMatrix common stock shall be
exchanged for one share of CombiMatrix Corporation common stock, as of the
redemption date, [REDEMPTION DATE].
Your
original stock certificates for Acacia Research-CombiMatrix common stock must
be
surrendered to the exchange agent at the following address:
[ADDRESS
OF EXCHANGE AGENT]
Upon
receipt of your original stock certificate(s) for Acacia Research-CombiMatrix
common stock at the foregoing address, we will deliver to you an original share
certificate for an equivalent number of shares of CombiMatrix Corporation common
stock issued in the name of the record holder of the Acacia Research-CombiMatrix
common stock.
Dividends
on shares of Acacia Research-CombiMatrix common stock shall cease to be paid
as
of [REDEMPTION DATE],
subject,
however
,
to
Section 2.4(f)(ix) of our Amended and Restated Certificate of
Incorporation.
As
of the
date hereof, there are 41,507,579 shares of Acacia Research-CombiMatrix common
stock issued and outstanding. In addition, there are warrants to acquire
[13,601,863] shares of Acacia Research-CombiMatrix common stock, at exercise
prices ranging from [$_____] to [$_____], with a weighted average exercise
price
of $1.09 per share, and there are options to acquire [8.6 million] shares of
Acacia Research-CombiMatrix common stock at exercise prices ranging from $1.33
to $24.00, with a weighted average exercise price of $5.70.
We
are
exercising our right to redeem all of the issued and outstanding shares of
Acacia Research-CombiMatrix common stock in accordance with Section 2.4(c)
of
our Amended and Restated Certificate of Incorporation. This notice is being
delivered to you in accordance with Section 2.4(f) of our Amended and Restated
Certificate of Incorporation.
You
will
be entitled to receive shares of common stock of CombiMatrix Corporation upon
redemption only if you exercise your options into shares of Acacia
Research-CombiMatrix Corporation common stock on or prior to the redemption
date, [REDEMPTION DATE]. Following [REDEMPTION DATE], your warrant or option
will be assumed by CombiMatrix Corporation, and CombiMatrix Corporation will
issue to you a new warrant or option that may be exercised for shares of
Combimatrix Corporation common stock on the same terms and conditions of your
existing warrant or option. To receive your new warrant or option following
the
redemption date, you must forward your original warrant or option to the
exchange agent at the foregoing address.
Accompanying
this notice is a prospectus dated [DATE OF PROSPECTUS] regarding the issuance
of
CombiMatrix Corporation common stock to you in the event you exercise your
warrant or option prior to the redemption date.
Sincerely,
Paul
R.
Ryan,
Chief
Executive Officer
[DATE]
Newport
Beach, California