acacia_10q-ex1003.htm


    EXHIBIT
      10.3

     

    FORM
      OF

     

    ACACIA
      RESEARCH CORPORATION

     

    2002
      ACACIA TECHNOLOGIES STOCK INCENTIVE PLAN

     

    STOCK
      ISSUANCE AGREEMENT

     

    


     

    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.

     

    A.    GRANT
      OF SHARES

     

    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 provided in Paragraph C.2.

     

    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 Paragraph C.2.

     

    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

     

    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.

     

    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 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 all Shares and the Unvested Shares
      shall be fully vested on _________

     

    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 Paragraph 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.

     

    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.

     

    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

     

    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.

     

    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.

     

     

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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:_________________________________

            
	 	 
	 	
              ________________________________________

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    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:_________________________________

            
	 	 
	 	
              ________________________________________

            
	 	 


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    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.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    APPENDIX

     

    


    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 of the Unvested Shares 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.  Unvested
      Shares shall have the meaning assigned to such term in
      Paragraph C.1.

     

     

     

    A-1