EXHIBIT 10.1
ACACIA RESEARCH CORPORATION
2002 ACACIA TECHNOLOGIES STOCK INCENTIVE PLAN
STOCK ISSUANCE AGREEMENT
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THIS AGREEMENT is made this _____ day of ______________, by
and between Acacia Research Corporation, a Delaware corporation, and
_________________________, a Participant in the Corporation's 2002 Acacia
Technologies Stock Incentive Plan (the "PLAN").
All capitalized terms in this Agreement shall have the meaning
assigned to them in this Agreement, in the attached Appendix or, if such term is
not defined in this Agreement or the Appendix, such term shall have the meaning
assigned to it under the Plan.
X. XXXXX OF SHARES
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1. GRANT. Participant is hereby granted _____________ shares
of Common Stock (the "SHARES") pursuant to the provisions of the Stock Issuance
Program.
2. CONSIDERATION. With respect to the par value of the Shares,
such Shares are granted in consideration for past services provided by the
Participant to the Corporation. The consideration for the remaining value of the
Shares is provided and for the services Participant shall provide to the
Corporation over the vesting period.
3. OTHER DOCUMENTS. Participant shall deliver a duly executed
blank Assignment Separate from Certificate (in the form attached hereto as
Exhibit I) with respect to the Shares.
4. STOCKHOLDER RIGHTS. Until such time as the Unvested Shares
are forfeited pursuant to Paragraph C.1., Participant (or any successor in
interest) shall have all the rights of a stockholder (including voting, dividend
and liquidation rights) with respect to the Shares, subject, however, to the
transfer restrictions of this Agreement.
5. ESCROW. The Corporation shall have the right to hold the
Shares in escrow until those shares have vested in accordance with the Vesting
Schedule.
6. COMPLIANCE WITH LAW. Under no circumstances shall shares of
Common Stock or other assets be issued or delivered to Participant pursuant to
the provisions of this Agreement unless, in the opinion of counsel for the
Corporation or its successors, there shall have been compliance with all
applicable requirements of applicable securities laws, all applicable listing
requirements of any stock exchange (or the Nasdaq National Market, if
applicable) on which the Common Stock is at the time listed for trading and all
other requirements of law or of any regulatory bodies having jurisdiction over
such issuance and delivery.
B. TRANSFER RESTRICTIONS
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1. RESTRICTION ON TRANSFER. Except for any Permitted Transfer,
Participant shall not transfer, assign, encumber or otherwise dispose of any of
the Shares which are Unvested Shares.
2. RESTRICTIVE LEGEND. The stock certificate for the Shares
shall be endorsed with the following restrictive legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE UNVESTED AND
SUBJECT TO FORFEITURE TO THE CORPORATION IN CERTAIN CIRCUMSTANCES AND
ACCORDINGLY MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED, OR IN
ANY MANNER DISPOSED OF EXCEPT IN CONFORMITY WITH THE TERMS OF A WRITTEN
AGREEMENT BETWEEN THE CORPORATION AND THE REGISTERED HOLDER OF THE
SHARES (OR THE PREDECESSOR IN INTEREST TO THE SHARES). A COPY OF SUCH
AGREEMENT IS MAINTAINED AT THE CORPORATION'S PRINCIPAL CORPORATE
OFFICES."
3. TRANSFEREE OBLIGATIONS. Each person (other than the
Corporation) to whom the Shares are transferred by means of a Permitted Transfer
must, as a condition precedent to the validity of such transfer, acknowledge in
writing to the Corporation that such person is bound by the provisions of this
Agreement and that the transferred shares are subject to the forfeiture
provisions to the same extent such shares would be so subject if retained by
Participant.
C. FORFEITURE OF SHARES
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1. FORFEITURE OF SHARES. On the date Participant ceases for
any reason to remain in Service, all of the Shares in which Participant is not,
at the time of his or her termination of Service, vested in accordance with the
Vesting Schedule set forth in Paragraph C.2 of this Agreement (such shares to be
hereinafter referred to as the "UNVESTED SHARES") shall be forfeited, shall
become the property of the Corporation and the Participant shall no longer have
any right to or ownership of such Shares. The certificates representing the
forfeited Unvested Shares shall be delivered to the Corporation as soon as
possible after the termination of Service.
2. TERMINATION OF FORFEITURE. The forfeiture provided for in
this Paragraph C shall terminate with respect to any and all Shares in which
Participant vests in accordance with the following Vesting Schedule:
[Add schedule]
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3. RECAPITALIZATION. Any new, substituted or additional
securities or other property (including cash paid other than as a regular cash
dividend) which is by reason of any Recapitalization distributed with respect to
the Shares shall be immediately subject to forfeiture pursuant to this Section C
and any escrow requirements hereunder, but only to the extent the Shares are at
the time covered by such forfeiture or escrow requirements. Appropriate
adjustments to reflect such distribution shall be made to the number, kind, type
and/or class of securities subject to this Agreement in order to reflect the
effect of any such Recapitalization upon the Corporation's capital structure.
4. CHANGE IN CONTROL./HOSTILE TAKE-OVER. All of the Shares
shall become fully vested and any Forfeiture Provision shall terminate in full,
immediately prior to and contingent upon a Change in Control or Hostile
Take-Over.
D. TAX PROVISIONS
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1. TAX CONSEQUENCES. Participant has reviewed with
Participant's own tax advisors the federal, state, local and foreign tax
consequences of this investment and the transactions contemplated by this
Agreement. Participant is relying solely on such advisors and not on any
statements or representations of the Corporation or any of its agents.
Participant understands that Participant (and not the Corporation) shall be
responsible for any tax liability that may arise as a result of the transactions
contemplated by this Agreement. Participant understands that Section 83 of the
Code, taxes as ordinary income the difference between the purchase price for the
Shares and the Fair Market Value of the Shares as of the date any restrictions
on the Shares lapse. In this context, "restriction" includes forfeiture
provision pursuant to Paragraph C.1. with respect to the Unvested Shares.
Participant understands that Participant may elect to be taxed at the time the
Shares are granted rather than when and as the forfeiture provision lapses by
filing an election under Section 83(b) of the Code with the IRS within thirty
(30) days from the date of grant. Participant acknowledges that it is
Participant's sole responsibility, and not the Corporation's, to file a timely
election under code section 83(b), even if Participant requests the Corporation
or its representatives to make this filing on his or her behalf.
2. WITHHOLDING OBLIGATIONS. At the time the Shares subject to
this Agreement are granted, or at any time thereafter as requested by the
Corporation, Participant hereby authorizes withholding from payroll and any
other amounts payable to Participant, including these Shares, and otherwise
agrees to make adequate provision for, any sums required to satisfy the federal,
state, local and foreign tax withholding obligations of the Corporation or any
Parent or Subsidiary, if any, which arise in connection with the grant of the
Shares.
The Corporation, in its sole discretion, and in compliance
with any applicable legal conditions or restrictions, may withhold from fully
vested Shares otherwise deliverable to Participant upon the vesting of the
Unvested Shares a number of whole Shares having a Fair Market Value, as
determined by the Corporation as of the date of vesting, not in excess of the
amount of tax required to be withheld by law (or such lower amount as may be
necessary to avoid adverse financial accounting treatment). Any adverse
consequences to Participant arising in connection with such share withholding
procedure shall be the Participant's sole responsibility.
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Unless the tax withholding obligations of the Corporation or
any Parent or Subsidiary are satisfied, the Corporation shall have no obligation
to issue a certificate for such Shares or release such Shares from any escrow
provided for herein.
E. GENERAL PROVISIONS
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1. ASSIGNMENT. The Corporation may assign its rights under
this Agreement, including, but not limited to the forfeiture provision of
Paragraph C.1., to any person or entity selected by the Board, including
(without limitation) one or more stockholders of the Corporation.
2. EMPLOYMENT AT WILL. Nothing in this Agreement or in the
Plan shall confer upon 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 Participant) or of Participant, which rights are hereby expressly
reserved by each, to terminate Participant's Service at any time for any reason,
with or without cause.
3. NOTICES. Any notice required to be given under this
Agreement shall be in writing and shall be deemed effective upon personal
delivery or upon deposit in the U.S. mail, registered or certified, postage
prepaid and properly addressed to the party entitled to such notice at the
address indicated below such party's signature line on this Agreement or at such
other address as such party may designate by ten (10) days advance written
notice under this paragraph to all other parties to this Agreement.
4. NO WAIVER. The failure of the Corporation in any instance
to enforce the forfeiture provision or any other term of this Agreement shall
not constitute a waiver of any other forfeiture provision or other term that may
subsequently arise under the provisions of this Agreement or any other agreement
between the Corporation and Participant. No waiver of any breach or condition of
this Agreement shall be deemed to be a waiver of any other or subsequent breach
or condition, whether of like or different nature.
5. CANCELLATION OF SHARES. If the Shares subject to this
Agreement are forfeited, then from and after such time, the person from whom
such Shares are forfeited shall no longer have any rights as a holder of such
Shares. Such shares shall be deemed forfeited in accordance with the applicable
provisions hereof, and the Corporation shall be deemed the owner and holder of
such shares, whether or not the certificates therefor have been delivered as
required by this Agreement.
6. PARTICIPANT UNDERTAKING. Participant hereby agrees to take
whatever additional action and execute whatever additional documents the
Corporation may deem necessary or advisable in order to carry out or effect one
or more of the obligations or restrictions imposed on either Participant or the
Shares pursuant to the provisions of this Agreement.
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7. AGREEMENT IS ENTIRE CONTRACT. This Agreement constitutes
the entire contract between the parties hereto with regard to the subject matter
hereof. This Agreement is made pursuant to the provisions of the Plan and shall
in all respects be construed in conformity with the terms of the Plan. In the
event of a conflict between the Plan and this Agreement, the terms of the Plan
shall govern.
8. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California without regard
to the conflict-of-laws rules thereof or of any other jurisdiction.
9. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
10. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall inure to the benefit of, and be binding upon, the Corporation and its
successors and assigns and upon Participant, Participant's assigns and the legal
representatives, heirs and legatees of Participant's estate, whether or not any
such person shall have become a party to this Agreement and have agreed in
writing to join herein and be bound by the terms hereof.
11. REPRESENTATIONS.
Participant agrees upon request to execute any further
documents or instruments necessary or desirable in the sole determination of the
Corporation to carry out the purposes or intent of this Agreement.
Participant acknowledges and agrees that Participant has
reviewed the Agreement in its entirety, has had an opportunity to obtain the
advice of counsel prior to executing and accepting the award and fully
understands all provisions of the Agreement.
[REMAINDER OF PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement
on the day and year first indicated above.
ACACIA RESEARCH CORPORATION
By:______________________________________
Title:___________________________________
Address:_________________________________
_________________________________________
PARTICIPANT
_________________________________________
Signature
Address:_________________________________
_________________________________________
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SPOUSAL ACKNOWLEDGMENT
The undersigned spouse of the Participant has read and hereby
approves the foregoing Stock Issuance Agreement. In consideration of the
Corporation's granting the Participant the right to acquire the Shares in
accordance with the terms of such Agreement, the undersigned hereby agrees to be
irrevocably bound by all the terms of such Agreement, including (without
limitation) the forfeiture to the Corporation (or its assigns) any Shares in
which the Participant is not vested at the time of his or her termination of
Service.
_________________________________________
PARTICIPANT'S SPOUSE
Address:_________________________________
_________________________________________
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EXHIBIT I
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED _______________________ hereby sell(s),
assign(s) and transfer(s) unto Acacia Research Corporation (the "Corporation"),
_____________________ (________) shares of the Common Stock of the Corporation
standing in his or her name on the books of the Corporation represented by
Certificate No. ______________ herewith and do(es) hereby irrevocably constitute
and appoint ______________________________ Attorney to transfer the said stock
on the books of the Corporation with full power of substitution in the premises.
Dated: _________________, _____.
Signature __________________________________
INSTRUCTION: Please do not fill in any blanks other than the signature line.
Please sign exactly as you would like your name to appear on the issued stock
certificate. The purpose of this assignment is to enable the Corporation to
enforce the forfeiture provision without requiring additional signatures on the
part of Participant.
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APPENDIX
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The following definitions shall be in effect under the
Agreement:
A. AGREEMENT shall mean this Stock Issuance Agreement.
B. OWNER shall mean Participant and all subsequent holders of
the Shares who derive their chain of ownership through a Permitted Transfer from
Participant.
C. PARTICIPANT shall mean the person to whom the Shares are
issued under the Stock Issuance Program.
D. PERMITTED TRANSFER shall mean (i) a gratuitous transfer of
the Shares, PROVIDED AND ONLY IF Participant obtains the Corporation's prior
written consent to such transfer, (ii) a transfer of title to the Shares
effected pursuant to Participant's will or the laws of inheritance following
Participant's death or (iii) a transfer to the Corporation in pledge as security
for any purchase-money indebtedness incurred by Participant in connection with
the acquisition of the Shares.
E. PLAN shall mean the Corporation's 2002 Acacia Technologies
Stock Incentive Plan.
F. SHARES shall have the meaning assigned to such term in
Paragraph A.1.
G. RECAPITALIZATION shall mean any stock split, stock
dividend, recapitalization, combination of shares, exchange of shares or other
change affecting the Corporation's outstanding Common Stock as a class without
the Corporation's receipt of consideration.
H. SERVICE shall mean the Participant's performance of
services for the Corporation (or any Parent or Subsidiary) in the capacity of an
employee, 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, a
non-employee member of the board of directors or an independent consultant.
Service shall not be deemed to cease during a period of military leave, sick
leave or other personal leave approved by the Corporation; provided, HOWEVER,
that except to the extent otherwise required by law, no Service credit shall be
given for purposes of the Vesting Schedule hereunder for any period the
Participant is on a leave of absence.
I. STOCK ISSUANCE PROGRAM shall mean the Stock Issuance
Program under the Plan.
J. VESTING SCHEDULE shall mean the vesting schedule specified
in Paragraph C.2, pursuant to which the Shares are to vest in a series of
installments over Participant's period of Service.
K. UNVESTED SHARES shall have the meaning assigned to such
term in Paragraph C.1.
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