CERTIFICATE
OF INCORPORATION OF
ACACIA
RESEARCH CORPORATION
Acacia
Research Corporation, a corporation organized and existing under the laws of the
State of Delaware (the Corporation), certifies that:
A.
The name of
the Corporation is Acacia Research Corporation. The Corporations
original Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware on October 8, 1999.
B.
This Amended
and Restated Certificate of Incorporation was duly adopted in accordance with
Sections 242 and 245 of the General Corporation Law of the State of Delaware,
and restated, integrates, and further amends the provisions of the Corporations
Certificate of Incorporation.
C.
The text of
the Certificate of Incorporation is amended and restated to read as set forth in
EXHIBIT A attached hereto.
IN
WITNESS WHEREOF, Acacia Research Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by Paul R. Ryan, a duly
authorized officer of the Corporation, on June 3, 2008.
|
/s/
Paul R. Ryan
Paul R. Ryan
Chairman
and Chief Executive Officer
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EXHIBIT
A
ARTICLE
I
NAME
The name
of the corporation is Acacia Research Corporation (the
"Corporation").
ARTICLE
II
ADDRESS
OF REGISTERED OFFICE;
NAME
OF REGISTERED AGENT
The address of the registered office of
the Corporation in the State of Delaware
32 W. Loockerman Street, Suite
201, Dover,
County of Kent,
Delaware. The name of its registered agent at such 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
2.
CONVERSION
. Upon
this Amended and Restated Certificate of Incorporation becoming effective
pursuant to the DGCL (the "Effective Time"), and without any further action on
the part of the Corporation or its stockholders, each share of the Corporation's
existing Acacia Research-Acacia Technologies Common Stock, having a par value of
$0.001 per share, then issued (including shares held in the treasury of the
Corporation) (AR-Acacia Technologies stock), shall be automatically
reclassified, changed and converted into one (1) fully paid and non-assessable
share of Common Stock. Any stock certificate which, immediately prior
to the Effective Time, represents shares of AR-Acacia Technologies stock, will,
from and after the Effective Time, automatically and without the necessity of
presenting the same for exchange, represent that number of shares as indicated
above in this SECTION 2
of Common Stock. As soon as
practicable after the Effective Time, the Corporation's transfer agent shall
mail a transmittal letter to each record holder who then holds shares of
AR-Acacia Technologies stock, informing such persons of this reclassification
with appropriate instructions on exchanging certificates representing such
shares and other relevant matters.
SECTION
3.
COMMON
STOCK
. The voting powers, preferences and relative,
participating, optional or other special rights of the Common Stock, and the
qualifications and restrictions thereon, shall be as follows in this SECTION 3
.
SECTION
3.1
Dividends
. Subject
to the rights, preferences, privileges, restrictions and other matters
pertaining to the Preferred Stock that may at that time be outstanding, the
holders of the Common Stock shall be entitled to receive, when, as and if
declared by the Board of Directors, out of any assets of the Corporation legally
available therefore, such dividends as may be declared from time to time by the
Board of Directors.
SECTION
3.2
Voting
Rights
. 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 or her name on
the books of the Corporation.
SECTION
3.3
Liquidation
Rights
. In the event of any liquidation, dissolution or
winding up (either voluntary or involuntary) of the Corporation, the holders of
shares of Common Stock shall be entitled to receive the assets and funds of the
Corporation available for distribution after payments to creditors and to the
holders of any Preferred Stock of the Corporation that may at the time be
outstanding, in proportion to the number of shares held by
them. Neither the merger nor consolidation of the Corporation into or
with any other corporation, nor a sale, transfer or lease of all or any part of
the assets of the Corporation, shall, alone, be deemed a liquidation or winding
up of the Corporation or cause the dissolution of the Corporation, for purposes
of this SECTION 3.3
.
SECTION
4.
PREFERRED
STOCK
. The Preferred Stock may be issued from time to time in
one or more series, each with such distinctive designation as may be stated in
the Certificate of Incorporation or in any amendment hereto, or in a resolution
or resolutions providing for the issue of such stock from time to time adopted
by the Board of Directors or a duly authorized committee thereof. The
resolution or resolutions providing for the issue of shares of a particular
series shall fix, subject to applicable laws and the provisions of the
Certificate of Incorporation, for each such series the number of shares
constituting such series and the designation and the voting powers, preferences
and relative, participating, optional or other special rights and the
qualifications, limitations or restrictions thereof, including, without limiting
the generality of the foregoing, such provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subjects or matters as may be fixed by
the Board of Directors or a duly authorized committee thereof under the
DGCL.
ARTICLE
V
BOARD
OF DIRECTORS
SECTION
1.
NUMBER OF DIRECTORS AND
THEIR ELECTION
. The number of directors of the Corporation
shall be fixed from time to time by a by-law of the Corporation or amendment
thereof duly adopted by the Board of Directors. Election of directors
need not be by written ballot, unless so provided in the By-laws of the
Corporation.
SECTION
2.
POWERS OF THE BOARD OF
DIRECTORS
. In furtherance, and not in limitation, of the
powers conferred by the laws of the State of Delaware, the Board of Directors is
expressly authorized to adopt, alter, amend and repeal the By-laws of the
Corporation, subject to the power of the stockholders of the Corporation to
alter or repeal any by-law whether adopted by them or otherwise; provided,
however, that the affirmative vote of 66 and 2/3 percent of the voting power of
the capital stock of the Corporation entitled to vote thereon shall be required
for stockholders to adopt, amend, alter or repeal any provision of the By-laws
of the Corporation.
SECTION
3.
CLASSIFIED BOARD OF
DIRECTORS
. Except as otherwise provided for or fixed pursuant
to the provisions of ARTICLE V
of this Certificate of Incorporation or
any resolution or resolutions of the Board of Directors providing for the
issuance of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation to elect additional directors under
specified circumstances, the number of directors shall be determined by the
Board of Directors in accordance with the Bylaws. The directors,
other than those who may be elected by the holders of Preferred Stock or any
other class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation pursuant to the terms of this Certificate of
Incorporation or any resolution or resolutions providing for the issuance of
such class or series of stock adopted by the Board of Directors, shall be
divided into three classes, Class I, Class II and Class III, as nearly equal in
number as possible. The term of office for the Class I directors
shall expire at the annual meeting of the stockholders in 2010; the term of
office for the Class II directors shall expire at the annual meeting of the
stockholders in 2008; and the term of office for the Class III directors shall
expire at the annual meeting of the stockholders in 2009. At each
annual meeting of the stockholders commencing in 2008, the successors to the
directors whose terms are expiring shall be elected to a term expiring at the
third succeeding annual meeting of the stockholders. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal
as possible, and any additional directors of any class elected by the
stockholders or appointed by the Board of Directors to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall coincide
with the remaining term of that class, but in no case will a decrease in the
number of directors shorten the term of any incumbent director. A director
elected by the stockholders or appointed by the Board of Directors to fill a
vacancy caused by the death, resignation, retirement, disqualification or
removal of a director shall hold office for a term that shall coincide with the
remaining term of that class. A director shall hold office until the
annual meeting for the year in which his or her term expires and until his or
her successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from
office.
ARTICLE
VI
STOCKHOLDER
ACTIONS
SECTION
1.
MEETINGS AND
RECORDS
. Meetings of stockholders may be held within or
without the State of Delaware, as the By-laws of the Corporation may
provide. The books of the Corporations may be kept (subject to the
DGCL) outside of the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the By-laws of the
Corporation.
SECTION
2.
SPECIAL
MEETINGS
. Special meetings of stockholders may be called at
any time by the Board of Directors or by the Chairman of the Board of Directors,
or the President, and may not be called by any other person or
persons.
SECTION
3.
WRITTEN
CONSENTS
. No action that is required or permitted to be taken
by the stockholders of the Corporation at any annual or special meeting of the
stockholders may be effected by written consent of the stockholders in lieu of a
meeting of stockholders.
ARTICLE
VII
LIMITATION
ON LIABILITY OF DIRECTORS
ARTICLE
VIII
INDEMNIFICATION
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
.
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