ACACIA RESEARCH CORP 10-Q

Table of Contents SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM 10-Q ☒ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended September 30, 2021 OR ☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ____________ to ______________ Commission file number: 1-37721 Acacia Research Corporation (Name of registrant as specified in its charter) delaware 95-4405754 (State or other jurisdiction of Incorporation or Organization) (I.R.S. Employer identification No.) 767 THIRD AVENUE , SUITE 602 , New York , NY 10017 (Address of principal executive offices) (Zip Code) (949) 480-8300 (Registrant’s telephone number, including area code) N/A (Former name or former address and former fiscal year, if changed since last report) Securities registered pursuant to Section 12(b) of the Act: Title of Each Class Trading Symbol Name of Each Exchange on Which Registered Common Stock ACTG The Nasdaq Stock Market, LLC Indicate by check mark whether the registrant (1) filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐ Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act: Large accelerated Filer ☐ Accelerated Filer ☐ Non-accelerated Filer ☒ Smaller reporting company ☒ Emerging Growth Company ☐ If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐ Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒ The number of shares outstanding of the registrant’s common stock, par value $0.001 per share, as of November 8, 2021, was 49,591,852 . ACACIA RESEARCH CORPORATION FORM 10-Q FOR THE QUARTERLY PERIOD ENDED September 30, 2021 INDEX Page CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS 3 PART I. FINANCIAL INFORMATION 4 Item 1. Financial Statements 4 Unaudited Condensed Consolidated Balance Sheets as of September 30, 2021 and December 31, 2020 4 Unaudited Condensed Consolidated Statements of Operations for the Three and Nine Months Ended September 30, 2021 and 2020 5 Unaudited Condensed Consolidated Statements of Series A Redeemable Convertible Preferred Stock and Stockholders' Equity for the Three and Nine Months Ended September 30, 2021 and 2020 6 Unaudited Condensed Consolidated Statements of Cash Flows for the Nine Months Ended September 30, 2021 and 2020 8 Notes to Unaudited Condensed Consolidated Financial Statements 9 Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 31 Item 3. Quantitative and Qualitative Disclosures about Market Risk 46 Item 4. Controls and Procedures 47 Part II. OTHER INFORMATION 48 Item 1. Legal Proceedings 48 Item 1A. Risk Factors 49 Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 49 Item 3. Defaults Upon Senior Securities 49 Item 4. Mine Safety Disclosures 49 Item 5. Other Information 49 Item 6. Exhibits 50 2 CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS This Quarterly Report on Form 10-Q for the three months ended September 30, 2021, or this Report, contains forward-looking statements within the meaning of the federal securities laws, which statements are subject to substantial risks and uncertainties. These forward-looking statements are intended to qualify for the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact included in this Report, or incorporated by reference into this Report, are forward-looking statements. Throughout this Report, we have attempted to identify forward-looking statements by using words such as “may,” “believe,” “will,” “could,” “project,” “anticipate,” “expect,” “estimate,” “should,” “continue,” “potential,” “plan,” “forecasts,” “goal,” “seek,” “intend,” “predict,” other forms of these words or similar words or expressions or the negative thereof, although not all forward-looking statements contain these terms. Such statements address future events and conditions concerning, among other things, intellectual property, or IP, acquisition and development, licensing and enforcement activities, other related business activities, the impact of the COVID-19 pandemic, capital expenditures, earnings, litigation, regulatory matters, markets for our services, liquidity and capital resources and accounting matters. Actual results in each case could differ materially from those anticipated in such statements by reason of factors such as our ability to invest in new technologies and patents, future global economic conditions, changes in demand for our services, legislative, regulatory and competitive developments in markets in which we and our subsidiaries operate, results of litigation and other circumstances affecting anticipated revenues and costs. We have based our forward-looking statements on management’s current expectations and projections about trends affecting our business and industry and other future events. Although we do not make forward-looking statements unless we believe we have a reasonable basis for doing so, we cannot guarantee their accuracy. Forward-looking statements are subject to substantial risks and uncertainties that could cause our future business, financial condition, results of operations or performance to differ materially from our historical results or those expressed or implied in any forward-looking statement contained in this Report. Some of the risks and uncertainties that may cause actual results to differ from those expressed or implied in the forward-looking statements are described in “Risk Factors” included in Part II, Item1A of this Report, and in “Risk Factors” included in Part I, Item 1A of our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the Securities and Exchange Commission, or the Securities and Exchange Commission (“SEC”), on March 29, 2021, or our Annual Report, as well as in our other public filings with the SEC. In addition, actual results may differ as a result of additional risks and uncertainties of which we are currently unaware or which we do not currently view as material to our business. The information contained in this Report is not a complete description of our business or the risks associated with an investment in our common stock. We urge you to carefully review and consider the various disclosures made by us in this Report and in our other reports filed with the SEC. You should read this Report in its entirety, together with the documents that we file as exhibits to this Report and the documents that we incorporate by reference into this Report, with the understanding that our future results may be materially different from what we currently expect. The forward-looking statements we make speak only as of the date on which they are made. We expressly disclaim any intent or obligation to update any forward-looking statements after the date hereof to conform such statements to actual results or to changes in our opinions or expectations, except as required by applicable law or the rules of The Nasdaq Stock Market, LLC. If we do update or correct any forward-looking statements, investors should not conclude that we will make additional updates or corrections. We qualify all of our forward-looking statements by these cautionary statements. 3 PART I--FINANCIAL INFORMATION Item 1. Financial Statements ACACIA RESEARCH CORPORATION UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEETS (In thousands, except share and per share data) September 30, December 31, 2021 2020 ASSETS Current assets: Cash and cash equivalents $ 217,957 $ 165,546 Restricted cash 761 – Equity securities at fair value 387,120 109,103 Equity securities without readily determinable fair value 5,816 143,257 Investment securities - equity method investments 31,840 30,673 Investment at fair value – 2,752 Accounts receivable 412 506 Other receivable (Note 3) 21,539 – Prepaid expenses and other current assets 3,986 5,832 Total current assets 669,431 457,669 Long-term restricted cash 35,424 35,000 Patents, net of accumulated amortization 39,826 16,912 Leased right-of-use assets 671 951 Other non-current assets 4,482 4,988 Total assets $ 749,834 $ 515,520 LIABILITIES, REDEEMABLE CONVERTIBLE PREFERRED STOCK, AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable $ 2,196 $ 1,019 Accrued expenses and other current liabilities 5,586 3,707 Accrued compensation 4,019 2,265 Royalties and contingent legal fees payable 1,793 2,162 Accrued patent investment costs 8,000 – Senior Secured Notes Payable 182,855 115,663 Total current liabilities 204,449 124,816 Series A warrant liabilities 18,527 6,640 Series A embedded derivative liabilities 41,411 26,728 Series B warrant liabilities 229,637 52,341 Long-term lease liabilities 671 951 Other long-term liabilities 5,591 591 Total liabilities 500,286 212,067 Commitments and contingencies – – Series A redeemable convertible preferred stock, par value $ 0.001 per share; stated value $ 100 per share; 350,000 shares authorized, issued and outstanding as of September 30, 2021 and December 31, 2020; aggregate liquidation preference of $ 35,000 as of September 30, 2021 and December 31, 2020 13,686 10,924 Stockholders' equity: Common stock, par value $ 0.001 per share; 300,000,000 shares authorized; 49,591,852 and 49,279,453 shares issued and outstanding as of September 30, 2021 and December 31, 2020, respectively 50 49 Treasury stock, at cost, 4,604,365 shares as of September 30, 2021 and December 31, 2020 ( 43,270 ) ( 43,270 ) Additional paid-in capital 649,349 651,416 Accumulated deficit ( 382,215 ) ( 326,708 ) Total Acacia Research Corporation stockholders' equity 223,914 281,487 Noncontrolling interests 11,948 11,042 Total stockholders' equity 235,862 292,529 Total liabilities, redeemable convertible preferred stock, and stockholders' equity $ 749,834 $ 515,520 The accompanying notes are an integral part of these unaudited condensed consolidated financial statements. 4 ACACIA RESEARCH CORPORATION UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (In thousands, except share and per share data) Three Months Ended Nine Months Ended September 30, September 30, 2021 2020 2021 2020 Revenues $ 1,582 $ 19,466 $ 24,785 $ 25,399 Patent portfolio operations: Inventor royalties 280 5,772 823 6,843 Contingent legal fees 285 6,609 5,735 6,855 Litigation and licensing expenses - patents 782 1,001 4,881 3,497 Amortization of patents 2,612 1,174 7,086 3,522 Other patent portfolio income – – – ( 308 ) Patent portfolio expenses 3,959 14,556 18,525 20,409 Net patent portfolio (loss) income ( 2,377 ) 4,910 6,260 4,990 General and administrative expenses 10,345 7,692 23,014 18,089 Operating loss ( 12,722 ) ( 2,782 ) ( 16,754 ) ( 13,099 ) Other income (expense): Change in fair value of investment, net – ( 3,081 ) ( 2,752 ) 3,704 Gain (loss) on sale of investment – – 3,591 ( 2,762 ) Change in fair value of the Series A and B warrants and embedded derivatives 619 20,672 ( 203,866 ) ( 46,612 ) Gain on sale of prepaid investment and derivative – 2,845 – 2,845 Change in fair value of equity securities 66,502 20,488 115,509 99,449 Gain (loss) on sale of equity securities 37,688 2,737 53,124 ( 4,272 ) Earnings on equity investment in joint venture – – 2,737 – Loss on foreign currency exchange ( 17 ) ( 48 ) ( 193 ) ( 4,938 ) Interest expense on Senior Secured Notes ( 2,531 ) ( 2,410 ) ( 5,601 ) ( 3,178 ) Interest income and other 76 10 135 811 Total other income (expense) 102,337 41,213 ( 37,316 ) 45,047 Income (loss) before income taxes 89,615 38,431 ( 54,070 ) 31,948 Income tax (expense) benefit ( 11 ) ( 83 ) ( 531 ) 1,257 Net income (loss) including noncontrolling interests in subsidiaries 89,604 38,348 ( 54,601 ) 33,205 Net income attributable to noncontrolling interests in subsidiaries – – ( 906 ) – Net income (loss) attributable to Acacia Research Corporation $ 89,604 $ 38,348 $ ( 55,507 ) $ 33,205 Net income (loss) attributable to common stockholders - Basic $ 72,984 $ 30,529 $ ( 59,054 ) $ 24,838 Basic net income (loss) per common share $ 1.49 $ 0.63 $ ( 1.21 ) $ 0.51 Weighted average number of shares outstanding - Basic 48,949,504 48,467,885 48,759,873 48,949,706 Net income (loss) attributable to common stockholders - Diluted $ 80,171 $ 29,204 $ ( 59,054 ) $ 21,380 Diluted net income (loss) per common share $ 0.86 $ 0.32 $ ( 1.21 ) $ 0.36 Weighted average number of shares outstanding - Diluted 93,081,502 90,624,702 48,759,873 60,153,773 The accompanying notes are an integral part of these unaudited condensed consolidated financial statements. 5 ACACIA RESEARCH CORPORATION UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF SERIES A REDEEMABLE CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS' EQUITY (In thousands, except share data) For the Three Months Ended September 30, 2021 Series A Redeemable Convertible Preferred Stock Common Stock Treasury Additional Paid-in Accumulated Noncontrolling Interests in Operating Total Stockholders' Shares Amount Shares Amount Stock Capital Deficit Subsidiaries Equity Balance at June 30, 2021 350,000 $ 12,695 49,616,602 $ 50 $ ( 43,270 ) $ 650,194 $ ( 471,819 ) $ 11,948 $ 147,103 Net income including noncontrolling interests in subsidiaries – – – – – – 89,604 – 89,604 Accretion of Series A Redeemable Convertible Preferred Stock to redemption value – 991 – – – ( 991 ) – – ( 991 ) Dividend on Series A Redeemable Convertible Preferred Stock – – – – – ( 262 ) – – ( 262 ) Stock options exercised – – 30,000 – – 108 – – 108 Issuance of common stock for unvested restricted stock awards, net of forfeitures – – ( 54,750 ) – – – – – – Compensation expense for share-based awards – – – – – 300 – – 300 Balance at September 30, 2021 350,000 $ 13,686 49,591,852 $ 50 $ ( 43,270 ) $ 649,349 $ ( 382,215 ) $ 11,948 $ 235,862 For the Three Months Ended September 30, 2020 Series A Redeemable Convertible Preferred Stock Common Stock Treasury Additional Paid-in Accumulated Noncontrolling Interests in Operating Total Stockholders' Shares Amount Shares Amount Stock Capital Deficit Subsidiaries Equity Balance at June 30, 2020 350,000 $ 9,400 49,306,137 $ 49 $ ( 43,270 ) $ 650,843 $ ( 444,799 ) $ 1,833 $ 164,656 Net income attributable to Acacia Research Corporation – – – – – – 38,348 – 38,348 Accretion of Series A Redeemable Convertible Preferred Stock to redemption value – 734 – – – ( 734 ) – – ( 734 ) Dividend on Series A Redeemable Convertible Preferred Stock – – – – – ( 467 ) – – ( 467 ) Issuance of common stock for unvested restricted stock awards, net of forfeitures – – ( 26,684 ) – – – – – – Compensation expense for share-based awards – – – – – 488 – – 488 Balance at September 30, 2020 350,000 $ 10,134 49,279,453 $ 49 $ ( 43,270 ) $ 650,130 $ ( 406,451 ) $ 1,833 $ 202,291 The accompanying notes are an integral part of these unaudited condensed consolidated financial statements. 6 ACACIA RESEARCH CORPORATION UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF SERIES A REDEEMABLE CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS' EQUITY (In thousands, except share data) (continued) For the Nine Months Ended September 30, 2021 Series A Redeemable Convertible Preferred Stock Common Stock Treasury Additional Paid-in Accumulated Noncontrolling Interests in Operating Total Stockholders' Shares Amount Shares Amount Stock Capital Deficit Subsidiaries Equity Balance at December 31, 2020 350,000 $ 10,924 49,279,453 $ 49 $ ( 43,270 ) $ 651,416 $ ( 326,708 ) $ 11,042 $ 292,529 Net (loss) income including noncontrolling interests in subsidiaries – – – – – – ( 55,507 ) 906 ( 54,601 ) Accretion of Series A Redeemable Convertible Preferred Stock to redemption value – 2,762 – – – ( 2,762 ) – – ( 2,762 ) Dividend on Series A Redeemable Convertible Preferred Stock – – – – – ( 785 ) – – ( 785 ) Stock options exercised – – 60,000 1 – 201 – – 202 Issuance of common stock for vesting of restricted stock units – – 28,834 – – – – – – Issuance of common stock for unvested restricted stock awards, net of forfeitures – – 223,565 – – – – – – Compensation expense for share-based awards – – – – – 1,279 – – 1,279 Balance at September 30, 2021 350,000 $ 13,686 49,591,852 $ 50 $ ( 43,270 ) $ 649,349 $ ( 382,215 ) $ 11,948 $ 235,862 For the Nine Months Ended September 30, 2020 Series A Redeemable Convertible Preferred Stock Common Stock Treasury Additional Paid-in Accumulated Noncontrolling Interests in Operating Total Stockholders' Shares Amount Shares Amount Stock Capital Deficit Subsidiaries Equity Balance at December 31, 2019 350,000 $ 8,089 50,370,987 $ 50 $ ( 39,272 ) $ 652,003 $ ( 439,656 ) $ 1,833 $ 174,958 Net income attributable to Acacia Research Corporation – – – – – – 33,205 – 33,205 Accretion of Series A Redeemable Convertible Preferred Stock to redemption value – 2,045 – – – ( 2,045 ) – – ( 2,045 ) Dividend on Series A Redeemable Convertible Preferred Stock – – – – – ( 1,119 ) – – ( 1,119 ) Stock options exercised – – 13,333 – – 48 – – 48 Issuance of common stock for vesting of restricted stock units – – 14,354 – – – – – – Issuance of common stock for unvested restricted stock awards, net of forfeitures – – 565,316 – – – – – – Compensation expense for share-based awards – – – – – 1,243 – – 1,243 Repurchase of common stock – – ( 1,684,537 ) ( 1 ) ( 3,998 ) – – – ( 3,999 ) Balance at September 30, 2020 350,000 $ 10,134 49,279,453 $ 49 $ ( 43,270 ) $ 650,130 $ ( 406,451 ) $ 1,833 $ 202,291 The accompanying notes are an integral part of these unaudited condensed consolidated financial statements. 7 ACACIA RESEARCH CORPORATION UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (In thousands) Nine Months Ended September 2021 2020 Cash flows from operating activities: Net (loss) income including noncontrolling interests in subsidiaries $ ( 54,601 ) $ 33,205 Adjustments to reconcile net (loss) income including noncontrolling interests in subsidiaries to net cash (used in) provided by operating activities: Change in fair value of investment, net 2,752 ( 3,704 ) (Gain) loss on sale of investment ( 3,591 ) 2,762 Depreciation and amortization 7,198 3,609 Amortization of debt discount and issuance costs 460 955 Change in fair value of Series A redeemable convertible preferred stock embedded derivative 14,683 7,708 Change in fair value of Series A warrants 11,887 2,036 Change in fair value of Series B warrants 177,296 36,867 Non-cash stock compensation 1,279 1,243 Loss on foreign currency exchange 193 4,938 Change in fair value of equity securities ( 115,509 ) ( 99,449 ) (Gain) loss on sale of equity securities ( 53,124 ) 4,272 Gain on sale of prepaid investment and derivative – ( 2,845 ) Earnings on equity investment in joint venture, net of distributions received ( 907 ) – Changes in assets and liabilities: Accounts receivable 94 248 Prepaid expenses and other assets ( 2,345 ) 1,038 Accounts payable and accrued expenses 7,002 614 Royalties and contingent legal fees payable ( 369 ) 12,052 Net cash (used in) provided by operating activities ( 7,602 ) 5,549 Cash flows from investing activities: Patent acquisition ( 13,000 ) ( 13,780 ) Sale of investment at fair value 3,591 1,460 Purchases of equity securities ( 57,978 ) ( 33,800 ) Maturities and sales of equity securities 64,235 316,746 Purchases of prepaid investment – ( 276,275 ) Equity securities derivative and forward contract acquisition cost – ( 3,989 ) Purchases of property and equipment ( 67 ) ( 177 ) Net cash used in investing activities ( 3,219 ) ( 9,815 ) Cash flows from financing activities: Repurchase of common stock – ( 3,998 ) Issuance of Senior Secured Notes, net of lender fee 65,000 110,437 Senior Secured Notes issuance costs paid to other parties – ( 496 ) Dividend on Series A Redeemable Convertible Preferred Stock ( 785 ) ( 1,120 ) Issuance of Series B warrants – 4,600 Proceeds from exercise of stock options 202 48 Paydown of Senior Secured Notes ( 50,000 ) – Reissuance of Senior Secured Notes 50,000 – Net cash provided by financing activities 64,417 109,471 Increase in cash and cash equivalents and restricted cash 53,596 105,205 Cash and cash equivalents and restricted cash, beginning 200,546 92,359 Cash and cash equivalents and restricted cash, ending $ 254,142 $ 197,564 Supplemental schedule of cash flow information: Interest paid $ 2,340 $ – Income taxes paid 9 164 Noncash investing activities: Trade date receivable from sale of equity securities (Note 3) 21,539 – Patent acquisition in exchange of notes receivable 4,000 – Patent acquisition accrued liability - short-term 8,000 – Patent acquisition accrued liability - long-term 5,000 – Acquisition of prepaid investment securities – 231,480 The accompanying notes are an integral part of these unaudited condensed consolidated financial statements. 8 ACACIA RESEARCH CORPORATION NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS 1. DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION Description of Business As used herein, “we,” “us,” “our,” “Acacia” and the “Company” refer to Acacia Research Corporation and/or its wholly and majority-owned and controlled operating subsidiaries, and/or where applicable, its management. Acacia was incorporated on January 25, 1993 under the laws of the State of California. In December 1999, Acacia changed its state of incorporation from California to Delaware. Acacia acquires businesses and operating assets that the Company believes to be undervalued and where the Company believes it can leverage its resources and skill sets to realize and unlock value. The Company intends to leverage its (i) access to flexible capital that can be deployed unconditionally, (ii) expertise in corporate governance and operational restructuring, (iii) willingness to invest in out of favor industries and businesses that suffer from a complexity discount and untangle complex, multi-factor situations, and (iv) expertise and relationships in certain sectors, to complete strategic acquisitions of businesses, divisions, and/or assets with a focus on mature technology, healthcare, industrial and certain financial segments. Acacia seeks to identify opportunities where the Company believes it is an advantaged buyer, where the Company can avoid structured sale processes and create the opportunity to purchase businesses, divisions and/or assets of companies at an attractive price due to the Company’s unique capabilities, relationships, or expertise, or where Acacia believes the target would be worth more to the Company than to other buyers. Acacia operates its business based on three key principles of People, Process and Performance and has built a management team with identified expertise in Research, Execution and Operation of the Company’s targeted acquisitions. Acacia, through its operating subsidiaries, also currently engages in its legacy business of investing in, licensing and enforcing patented technologies. Acacia’s operating subsidiaries partner with inventors and patent owners, applying their legal and technology expertise to patent assets to unlock the financial value in their patented inventions. In recent years, Acacia has also invested in technology companies. Acacia leverages its experience, expertise, data and relationships developed as a leader in the intellectual property (“IP”) industry to pursue these opportunities. In some cases, these opportunities will complement and/or supplement Acacia’s primary licensing and enforcement business. Acacia’s operating subsidiaries generate revenues and related cash flows from the granting of IP rights (hereinafter, “IP Rights”) for the use of patented technologies that its operating subsidiaries control or own. Acacia’s operating subsidiaries assist patent owners with the prosecution and development of their patent portfolios, the protection of their patented inventions from unauthorized use, the generation of licensing revenue from users of their patented technologies and, where necessary, with the enforcement against unauthorized users of their patented technologies through the filing of patent infringement litigation. Acacia’s operating subsidiaries are principals in the licensing and enforcement effort, obtaining control of the rights in the patent portfolio, or control of the patent portfolio outright. Acacia’s operating subsidiaries own or control the rights to multiple patent portfolios, which include U.S. patents and certain foreign counterparts, covering technologies used in a wide variety of industries. Neither Acacia nor its operating subsidiaries invent new technologies or products; rather, Acacia depends upon the identification and investment in new patents, inventions and companies that own IP through its relationships with inventors, universities, research institutions, technology companies and others. If Acacia’s operating subsidiaries are unable to maintain those relationships and identify and grow new relationships, then they may not be able to identify new technology-based opportunities for sustainable revenue and/or revenue growth. 9 During the nine months ended September 30, 2021, Acacia obtained control of one 1 new patent portfolio. During fiscal year 2020, Acacia obtained control of five 5 new patent portfolios. Basis of Presentation The accompanying unaudited condensed consolidated financial statements include the accounts of Acacia and its wholly and majority-owned and controlled subsidiaries. All intercompany transactions and balances have been eliminated in consolidation. The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) for interim financial information and with the instructions to Form 10-Q and Rule 10-01 of Regulation S-X. Accordingly, certain information and note disclosures required by U.S. GAAP in annual financial statements have been omitted or condensed in accordance with quarterly reporting requirements of the Securities and Exchange Commission (“SEC”). These interim unaudited condensed consolidated financial statements and notes hereto should be read in conjunction with the consolidated financial statements and notes thereto for the year ended December 31, 2020, as reported by Acacia in its Annual Report on Form 10-K filed with the SEC on March 29, 2021, as well as in our other public filings with the SEC. The condensed consolidated interim financial statements of Acacia include all adjustments of a normal recurring nature which, in the opinion of management, are necessary for a fair statement of Acacia’s consolidated financial position as of September 30, 2021, and results of its operations and its cash flows for the interim periods presented. The consolidated results of operations for the three and nine months ended September 30, 2021 are not necessarily indicative of the results to be expected for the entire fiscal year. Reclassifications Certain prior period amounts in the consolidated financial statements have been reclassified to conform to the current period presentation. These changes had no impact on the previously reported consolidated results of operations or cash flows. COVID-19 Pandemic The full impact of the COVID-19 pandemic continues to evolve as of the date of this report. While the Company does not expect the current situation to present direct risks to its business, and it has not had a material impact to date, the COVID-19 pandemic could adversely impact the Company’s operations, as well as the operations of its licensees and other business partners. Our cash is held in major financial institutions primarily in government instruments. Our business is fully able to operate in a socially distanced and/or remote capacity and in accordance with applicable laws, policies and best practices. Our workforce is provided ample paid sick leave, and we have in place robust disaster recovery and business continuity policies that have been revised to account for a long-term remote work contingency such as this. However, the ongoing pandemic may present risks that we do not currently consider material or risks that may evolve quickly that could have a materially adverse effect on our business, results of operations and financial condition. 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Accounting Principles The consolidated financial statements and accompanying notes are prepared on the accrual basis of accounting in accordance with U.S. GAAP. Principles of Consolidation The accompanying unaudited consolidated financial statements include the accounts of Acacia and its wholly and majority-owned and controlled subsidiaries. All intercompany transactions and balances have been eliminated in consolidation. Noncontrolling interests in Acacia’s majority-owned and controlled operating subsidiaries (“noncontrolling interests”) are separately presented as a component of stockholders’ equity. Consolidated net income or (loss) is adjusted to include the net (income) or loss attributed to noncontrolling interests in the consolidated statements of operations. Refer to the accompanying Consolidated Statements of Series A Redeemable Convertible Preferred Stock and Stockholders’ Equity for total noncontrolling interests. 10 In 2020, in connection with the transaction with Link Fund Solutions Limited, which is more fully described in Note 3, the Company acquired equity securities of Malin J1 Limited (“MalinJ1”). MalinJ1 is included in the Company’s consolidated financial statements because the Company, through its interest in the equity securities of MalinJ1, has the ability to control the operations and activities of MalinJ1. Viamet HoldCo LLC, a Delaware limited liability company and wholly-owned subsidiary of Acacia, is the majority shareholder of MalinJ1. A wholly-owned subsidiary of Acacia is the general partner of the Acacia Intellectual Property Fund, L.P. (the “Acacia IP Fund”), which was formed in August 2010. The Acacia IP Fund has been included in the Company’s consolidated financial statements since 2010, as Acacia’s wholly-owned subsidiary, the general partner of Acacia IP Fund, has the ability to control the operations and activities of the Acacia IP Fund. The Acacia IP Fund was terminated as of December 31, 2017 and dissolved in 2020. Segment Reporting Acacia uses the management approach, which designates the internal organization that is used by management for making operating decisions and assessing performance as the basis of Acacia’s reportable segments. The Company manages its operations as a single segment for the purposes of assessing performance and making operating decisions. Use of Estimates The preparation of financial statements in conformity with U.S. GAAP 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 consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from these estimates. Acacia believes that, of the significant accounting policies described herein, the accounting policies associated with revenue recognition, the valuation of the equity instruments, the valuation of Series A redeemable convertible preferred stock (the “Series A Redeemable Convertible Preferred Stock”), embedded derivatives, Series A warrants (the “Series A Warrants”), Series B warrants (the “Series B Warrants”), stock-based compensation expense, impairment of patent-related intangible assets, the determination of the economic useful life of amortizable intangible assets, income taxes and valuation allowances against net deferred tax assets, require its most difficult, subjective or complex judgments. Revenue Recognition Revenue is recognized upon transfer of control (i.e., by the granting) of promised bundled IP Rights and other contractual performance obligations to licensees in an amount that reflects the consideration we expect to receive in exchange for those IP Rights. Revenue contracts that provide promises to grant the right to use IP Rights as they exist at the point in time at which the IP Rights are granted, are accounted for as performance obligations satisfied at a point in time and revenue is recognized at the point in time that the applicable performance obligations are satisfied and all other revenue recognition criteria have been met. For the periods presented, revenue contracts executed by the Company primarily provided for the payment of contractually determined, one-time, paid-up license fees in consideration for the grant of certain IP Rights for patented technologies owned or controlled by Acacia. Revenues also included license fees from sales-based revenue contracts, the majority of which were originally executed in prior periods, which provide for the payment of quarterly license fees based on quarterly sales of applicable product units by licensees (“Recurring Revenue Agreements”). Revenues may also include court ordered settlements or awards related to our patent portfolio or sales of our patent portfolio. IP Rights granted included the following, as applicable: (i) the grant of a non-exclusive, future license to manufacture and/or sell products covered by patented technologies, (ii) a covenant-not-to-sue, (iii) the release of the licensee from certain claims, and (iv) the dismissal of any pending litigation. The IP Rights granted were generally perpetual in nature, extending until the legal expiration date of the related patents. The individual IP Rights are not accounted for as separate performance obligations, as (i) the nature of the promise, within the context of the contract, is to grant combined items to which the promised IP Rights are inputs and (ii) the Company's promise to grant each individual IP right described above to the customer is not separately identifiable from other promises to grant IP Rights in the contract. 11 Since the promised IP Rights are not individually distinct, the Company combined each individual IP Right in the contract into a bundle of IP Rights that is distinct, and accounted for all of the IP Rights promised in the contract as a single performance obligation. The IP Rights granted were “functional IP rights” that have significant standalone functionality. Acacia’s subsequent activities do not substantively change that functionality and do not significantly affect the utility of the IP to which the licensee has rights. Acacia’s operating subsidiaries have no further obligation with respect to the grant of IP Rights, including no express or implied obligation to maintain or upgrade the technology, or provide future support or services. The contracts provide for the grant of the licenses, covenants-not-to-sue, releases, and other significant deliverables upon execution of the contract. Licensees legally obtain control of the IP Rights upon execution of the contract. As such, the earnings process is complete and revenue is recognized upon the execution of the contract, when collectability is probable and all other revenue recognition criteria have been met. Revenue contracts generally provide for payment of contractual amounts within 15-90 days of execution of the contract, or the end of the quarter in which the sale or usage occurs for Recurring Revenue Agreements. Contractual payments made by licensees are generally non-refundable. For sales-based royalties, the Company includes in the transaction price some or all of an amount of estimated variable consideration to the extent that it is probable that a significant reversal in the amount of cumulative revenue recognized will not occur when the uncertainty associated with the variable consideration is subsequently resolved. Notwithstanding, revenue is recognized for a sales-based royalty promised in exchange for a license of IP Rights when the later of (i) the subsequent sale or usage occurs, or (ii) the performance obligation to which some or all of the sales-based royalty has been allocated has been satisfied. Estimates are generally based on historical levels of activity, if available. Revenues from contracts with significant financing components (either explicit or implicit) are recognized at an amount that reflects the price that a licensee would have paid if the licensee had paid cash for the IP Rights when they are granted to the licensee. In determining the transaction price, the Company adjusts the promised amount of consideration for the effects of the time value of money. As a practical expedient, the Company does not adjust the promised amount of consideration for the effects of a significant financing component if the Company expects, at contract inception, that the period between when the entity grants promised IP Rights to a customer and when the customer pays for the IP Rights will be one year or less. In general, the Company is required to make certain judgments and estimates in connection with the accounting for revenue contracts with customers. Such areas may include identifying performance obligations in the contract, estimating the timing of satisfaction of performance obligations, determining whether a promise to grant a license is distinct from other promised goods or services, evaluating whether a license transfers to a customer at a point in time or over time, allocating the transaction price to separate performance obligations, determining whether contracts contain a significant financing component, and estimating revenues recognized at a point in time for sales-based royalties. Revenues were comprised of the following for the periods presented: Disaggregation of revenue Three Months Ended Nine Months Ended September 30, September 30, 2021 2020 2021 2020 (In thousands) Paid-up revenue agreements $ 1,100 $ 19,385 $ 23,110 $ 24,477 Recurring Revenue Agreements 482 81 1,675 922 Total revenue $ 1,582 $ 19,466 $ 24,785 $ 25,399 Refer to “ Inventor Royalties and Contingent Legal Expenses ” below for information on related direct costs of revenues. Patent Portfolio Operations Cost of revenues include the costs and expenses incurred in connection with Acacia’s patent licensing and enforcement activities, including inventor royalties paid to original patent owners, patent maintenance and prosecution costs, contingent legal fees paid to external patent counsel, other patent-related legal expenses paid to external patent counsel, licensing and enforcement related research, consulting and other expenses paid to third-parties and the amortization of patent-related investment costs. These costs are included under the caption “Patent portfolio operations” in the consolidated statements of operations. 12 Inventor Royalties and Contingent Legal Expenses Inventor royalties are expensed in the consolidated statements of operations in the period that the related revenues are recognized. Patent costs, including any upfront advances paid to patent owners by Acacia’s operating subsidiaries, that are recoverable from future net revenues are amortized over the estimated economic useful life of the related patents, or as the prepaid royalties are earned by the inventor, as appropriate, and the related expense is included in amortization expense in the consolidated statements of operations. Any unamortized upfront advances recovered from net revenues are expensed in the period recovered and included in amortization expense in the consolidated statements of operations. Contingent legal fees are expensed in the consolidated statements of operations in the period that the related revenues are recognized. In instances where there are no recoveries from potential infringers, no contingent legal fees are paid; however, Acacia’s operating subsidiaries may be liable for certain out of pocket legal costs incurred pursuant to the underlying legal services agreement. Inventor royalty and contingent legal agreements generally provide for payment by the Company of contractual amounts 30 days subsequent to the fiscal quarter end during which related license fee payments are received from licensees by the Company. Concentrations Financial instruments that potentially subject Acacia to concentrations of credit risk are cash equivalents, equity securities and accounts receivable. Acacia places its cash equivalents and equity securities primarily in highly rated money market funds and investment grade marketable securities. Cash and cash equivalents are also invested in deposits with certain financial institutions and may, at times, exceed federally insured limits. Acacia has not experienced any significant losses on its deposits of cash and cash equivalents. Four licensees individually accounted for 32 %, 25 %, 22 % and 13 % of revenues recognized during the three months ended September 30, 2021, and one licensee accounted for 98 % of revenues recognized during the three months ended September 30, 2020. Three licensees individually accounted for 50 %, 19 % and 12 % of revenues recognized during the nine months ended September 30, 2021, and two licensees accounted for 75 % and 9 % of revenues recognized during the nine months ended September 30, 2020. The Company does not have any material foreign operations. Based on the jurisdiction of the entity obligated to satisfy payment obligations pursuant to the applicable revenue arrangement, for the three and nine months ended September 30, 2021, 8 % and 15 %, respectively, of revenues were attributable to licensees domiciled in foreign jurisdictions. For the three and nine months ended September 30, 2020, 0.1 % and 5 %, respectively, of revenues were attributable to licensees domiciled in foreign jurisdictions. Two licensees represented 100 % of accounts receivable at September 30, 2021. Two licensees individually represented approximately 62 % and 21 % of accounts receivable at December 31, 2020. Related Party Transactions During 2019, the Company purchased shares of common stock of Drive Shack, Inc. (“Drive Shack”) for an aggregate purchase price of $2.4 million. At the time, Drive Shack and Clifford Press, Chief Executive Officer and director of Acacia, were related parties as Mr. Press was a board member of Drive Shack until June 2021. The market value of the investment was $1.4 million as of December 31, 2020. During the nine months ended September 30, 2021, the Company sold its investment receiving proceeds of $ 1.8 million and recognized a loss of $ 515,000 . Cash and Cash Equivalents Acacia considers all highly liquid, equity securities with original maturities of three months or less when purchased to be cash equivalents. For the periods presented, Acacia’s cash equivalents are comprised of investments in AAA rated money market funds that invest in first-tier only securities, which primarily includes: domestic commercial paper and securities issued or guaranteed by the U.S. government or its agencies. Acacia’s cash equivalents are measured at fair value using observable inputs. 13 Equity Securities at Fair Value Investments in equity securities are reported at fair value on a recurring basis, with related realized and unrealized gains and losses in the value of such securities recorded in the consolidated statements of operations in other income or (expense). Dividend income is included in the consolidated statements of operations in other income or (expense). Refer to Note 7 for additional information related to fair value measurements. Equity securities at fair value for the periods presented were comprised of the following: Schedule of equity securities Security Type Cost Gross Unrealized Gain Gross Unrealized Loss Fair Value (In thousands) September 30, 2021: Equity securities - Life Sciences Portfolio (Note 3) $ 62,042 $ 288,508 $ ( 1,812 ) $ 348,738 Equity securities - other equity 35,178 3,289 ( 85 ) 38,382 Total $ 97,220 $ 291,797 $ ( 1,897 ) $ 387,120 December 31, 2020: Equity securities - Life Sciences Portfolio (Note 3) $ 32,765 $ 72,689 $ ( 583 ) $ 104,871 Equity securities - other equity 4,086 1,410 ( 1,264 ) 4,232 Total $ 36,851 $ 74,099 $ ( 1,847 ) $ 109,103 Equity Securities Without Readily Determinable Fair Value For equity securities that do not have readily determinable fair value, the Company elected to report them under the measurement alternative. They are reported at cost minus impairment, if any, plus or minus changes resulting from observable price changes in orderly transactions for an identical or similar investment of the same issuer. The fair values of the private company securities were estimated based on recent financing transactions and secondary market transactions and factoring in any adjustments for illiquidity or preference of these securities. Changes in fair value are reported in the consolidated statements of operations in other income or (expense). Refer to Note 3 for additional information. Equity Method Investments Equity investments in common stock and in-substance common stock without readily determinable fair values in companies over which the Company has the ability to exercise significant influence, are accounted for using the equity method of accounting. Acacia includes its proportionate share of earnings and/or losses of its equity method investees in earnings on equity investment in joint venture in the consolidated statements of operations. Refer to Note 3 for additional information. Investment at Fair Value On an individual investment basis, Acacia may elect to account for investments in companies where the Company has the ability to exercise significant influence over operating and financial policies of the investee, at fair value. If the fair value method is applied to an investment that would otherwise be accounted for under the equity method of accounting, it is applied to all of the financial interests in the same entity that are eligible items (i.e., common stock and warrants). We elected the fair value method for our investment in Veritone, Inc. (“Veritone”) upon acquisition of the investment. Since March 2021, we have no more investment in Veritone stocks and warrants. Refer to Note 4 for additional information. 14 Impairment of Investments Acacia reviews its investments quarterly for indicators of other-than-temporary impairment. This determination requires significant judgment. In making this judgment, Acacia considers available quantitative and qualitative evidence in evaluating potential impairment of its investments. If the cost of an investment exceeds its fair value, Acacia evaluates, among other factors, general market conditions and the duration and extent to which the fair value is less than cost. Acacia also considers specific adverse conditions related to the financial health of and business outlook for the investee, including industry and sector performance, changes in technology, and operational and financing cash flow factors. Once a decline in fair value is determined to be other-than-temporary, an impairment charge is recorded in the consolidated statements of operations and a new cost basis in the investment is established. Long-Term Restricted Cash Restricted cash relates primarily to the proceeds received from the issuance of Series A Redeemable Convertible Preferred Stock which are held in an escrow account (refer to Note 6). The amounts are to be released to the Company upon, among other things, (i) the consummation of a suitable investment or acquisition by the Company or (ii) the conversion of Series A Redeemable Convertible Preferred Stock into common stock. During October 2021, the Company consummated a suitable acquisition, accordingly $35.0 million was released to the Company. Refer to Note 11 for additional information related to the subsequent period acquisition. Patents Patents include the cost of patents or patent rights acquired from third-parties or obtained in connection with business combinations. Patent costs are amortized utilizing the straight-line method over their remaining economic useful lives. Refer to Note 5 for additional information. Impairment of Long-lived Assets Acacia reviews long-lived assets and intangible assets for potential impairment annually (quarterly for patents) and when events or changes in circumstances indicate the carrying amount of an asset may not be recoverable. In the event 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 is recorded in an amount equal to the excess of the asset’s carrying value over its fair value. 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. In the event that management decides to no longer allocate resources to a patent portfolio, an impairment loss equal to the remaining carrying value of the asset is recorded. Refer to Note 5 for additional information. Fair value is generally estimated using the “Income Approach,” focusing on the estimated future net income-producing capability of the patent portfolios over their estimated remaining economic useful life. Estimates of future after-tax cash flows are converted to present value through “discounting,” including an estimated rate of return that accounts for both the time value of money and investment risk factors. Estimated cash inflows are typically based on estimates of reasonable royalty rates for the applicable technology, applied to estimated market data. Estimated cash outflows are based on existing contractual obligations, such as contingent legal fee and inventor royalty obligations, applied to estimated license fee revenues, in addition to other estimates of out-of-pocket expenses associated with a specific patent portfolio’s licensing and enforcement program. The analysis also contemplates consideration of current information about the patent portfolio including, status and stage of litigation, periodic results of the litigation process, strength of the patent portfolio, technology coverage and other pertinent information that could impact future net cash flows. Series A and B Warrants The fair value of the Series A and B Warrants are estimated using a Black-Scholes option-pricing model. Refer to Notes 6 and 7 for additional information related to the Series A and B Warrants and their fair value measurements. Embedded derivatives Embedded derivatives that are required to be bifurcated from their host contract are valued separately from the host instrument. A binomial lattice framework is used to estimate the fair value of the embedded derivative in the Series A Redeemable Convertible Preferred Stock issued by the Company in 2019. Refer to Notes 6 and 7 for additional information related to the embedded derivatives and their fair value measurements. 15 Fair Value Measurements U.S. GAAP defines fair value as the price that would be received for an asset or the exit price that would be paid to transfer a liability in the principal or most advantageous market in an orderly transaction between market participants on the measurement date, and also establishes a fair value hierarchy which requires an entity to maximize the use of observable inputs, where available. Refer to Note 7 for additional information. Treasury Stock Repurchases of the Company’s outstanding common stock are accounted for using the cost method. The applicable par value is deducted from the appropriate capital stock account on the formal or constructive retirement of treasury stock. Any excess of the cost of treasury stock over its par value is charged to additional paid-in capital and reflected as treasury stock in the consolidated balance sheets. Refer to Note 9 for additional information. Stock-Based Compensation 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 on a straight-line basis over the employee’s requisite service period (generally the vesting period of the equity award) which is generally one to three years. The fair value of restricted stock awards (“RSAs”) and restricted stock units (“RSUs”) are determined by the product of the number of shares or units granted and the grant date market price of the underlying common stock. The fair value of each option award is estimated on the date of grant using a Black-Scholes option-pricing model. Forfeitures are accounted for as they occur. RSUs granted in September 2019 with market-based vesting conditions vest based upon the Company achieving specified stock price targets over a three-year period. The effect of a market condition is reflected in the estimate of the grant-date fair value of the options utilizing a Monte Carlo valuation technique. Compensation cost is recognized with a market-based vesting condition provided that the requisite service is rendered, regardless of when, if ever, the market condition is satisfied. Assumptions utilized in connection with the Monte Carlo valuation technique, that resulted in a fair value of $1.42 per unit, included: estimated risk-free interest rate of 1.38 percent ; term of 3.00 years ; expected volatility of 38 percent ; and expected dividend yield of 0 percent . The risk-free interest rate was determined based on the yields available on U.S. Treasury zero-coupon issues. The expected stock price volatility was determined using historical volatility. The expected dividend yield was based on expectations regarding dividend payments. During the nine months ended September 30, 2021, 450,000 RSUs were forfeited, leaving 450,000 units with market-based vesting conditions outstanding and unvested at period end. During the nine months ended September 30, 2021, the Company granted 324,401 RSAs at a weighted average grant-date fair value of $ 5.56 per share, 473,000 RSUs at a weighted average grant-date fair value of $ 5.86 per unit and 393,750 non-qualified stock options at a grant-date fair value of $ 1.79 per share. Stock-based compensation is reported in the consolidated statements of operations in general and administrative expenses. Total stock-based compensation for the three and nine months ended September 30, 2021 was $ 300,000 and $ 1,279,000 , respectively. Total unrecognized stock-based compensation expense as of September 30, 2021 was $ 5,952,000 , which will be amortized over a weighted average remaining vesting period of 2.20 years. Total stock-based compensation for the three and nine months ended September 30, 2020 was $ 488,000 and $ 1,243,000 , respectively. Profits Interest Units (“PIUs”) were accounted for in accordance with Accounting Standards Codification (“ASC”) 718-10, “Compensation - Stock Compensation.” The vesting conditions did not meet the definition of service, market or performance conditions, as defined in ASC 718. As such, the PIUs were classified as liability awards. Compensation expense was adjusted for changes in fair value prorated for the portion of the requisite service period rendered. Initially, compensation expense was recognized on a straight-line basis over the employee’s requisite service period (generally the vesting period of the equity award) which was five years. Upon full vesting of the award, which occurred during the three months ended September 30, 2017, previously unrecognized compensation expense was immediately recognized in the period. The Company has a purchase option to purchase the vested PIUs that are not otherwise forfeited after termination of continuous service. The exercise price of the purchase option is the fair market value of the PIUs on the date of termination of continuous service. The individuals holding PIUs are no longer employed by the Company. Included in other long-term liabilities in the consolidated balance sheets as of September 30, 2021 and December 31, 2020, the PIUs totaled $591,000, which was their fair value as of December 31, 2018 after termination of service. 16 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 Acacia’s consolidated financial statements or consolidated income 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, or if it is determined that there is uncertainty regarding future realization of such assets. The provision for income taxes for interim periods is determined using an estimate of Acacia’s annual effective tax rate, adjusted for discrete items, if any, that are taken into account in the relevant period. Each quarter, Acacia updates the estimate of the annual effective tax rate, and if the estimated tax rate changes, a cumulative adjustment is recorded. The Company’s effective tax rates were 0 % and ( 1 %) for the three and nine months ended September 30, 2021, respectively, and 0 % and ( 4 %) for the three and nine months ended September 30, 2020, respectively. Tax expense/benefit for the periods presented primarily reflects the impact of state taxes and foreign tax withholding (or refund) incurred on revenue agreements executed with third-party licensees domiciled in foreign jurisdictions. The Company has recorded a full valuation allowance against our net deferred tax assets as of September 30, 2021 and December 31, 2020. These assets primarily consist of foreign tax credits, capital loss carryforwards and net operating loss carryforwards. Recent Accounting Pronouncements Recently Adopted In December of 2019, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2019-12, “Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes.” The update removed certain exceptions to the general principles in Topic 740 in U.S. GAAP. The Company adopted the update on January 1, 2021. The adoption of the update did not have a material effect on the Company’s financial position, results of operations or financial statement disclosures. Not Yet Adopted In June 2016, the FASB issued ASU No. 2016-13, “Financial Instruments—Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments,” to replace the incurred loss methodology with an expected credit loss model that requires consideration of a broader range of information to estimate credit losses over the lifetime of the asset, including current conditions and reasonable and supportable forecasts in addition to historical loss information, to determine expected credit losses. Pooling of assets with similar risk characteristics and the use of a loss model are also required. Also, in April 2019, the FASB issued ASU No. 2019-04, “Codification Improvements to Topic 326, Financial Instruments—Credit Losses, Topic 815, Derivatives and Hedging, and Topic 825, Financial Instruments,” to clarify the inclusion of recoveries of trade receivables previously written off when estimating an allowance for credit losses. The amendments in these updates will currently be effective for the Company on January 1, 2023, with early adoption permitted. Management is currently evaluating the impact that the amendments in these updates may have on the Company’s consolidated financial statements. In August 2020, the FASB issued ASU No. 2020-06, “Debt—Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging—Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity,” to simplify the accounting for convertible instruments by eliminating large sections of the existing guidance in this area. It also eliminates several triggers for derivative accounting, including a requirement to settle certain contracts by delivering registered shares. This update reduces the number of accounting models for convertible instruments, revises the derivatives scope exception, and provides targeted improvements for earnings per share. Upon adoption, companies have the option to apply a modified or full retrospective transition approach. The amendments in this update will currently be effective for the Company on January 1, 2024, with early adoption permitted. Management is currently evaluating the impact that the amendments in this update may have on the Company’s consolidated financial statements. 17 In October 2021, the FASB issued ASU No. 2021-08, “Business Combinations (Topic 805): Accounting for Contract Assets and Contract Liabilities from Contracts with Customers,” to require that an acquirer recognize and measure contract assets and contract liabilities acquired in a business combination in accordance with “Revenue from Contracts with Customers (Topic 606).” At the acquisition date, an acquirer should account for the related revenue contracts in accordance with Topic 606 as if it had originated the contracts. The amendments in this update should be applied prospectively and will be effective for the Company on January 1, 2023, with early adoption permitted. Management is currently evaluating the impact that the amendments in this update may have on the Company’s consolidated financial statements. 3. EQUITY SECURITIES PORTFOLIO INVESTMENT On April 3, 2020, the Company entered into an Option Agreement with LF Equity Income Fund (“Seller”), which included general terms through which the Company was provided the option to purchase life sciences equity securities in a portfolio of public and private companies (“Life Sciences Portfolio”) for an aggregate purchase price of £223.9 million, approximately $ 277.5 million at the exchange rate on April 3, 2020. On June 4, 2020, the Company executed the Transaction Agreement between Link Fund Solutions Limited, Seller, and the Company. Pursuant to the Transaction Agreement, the Company agreed to purchase from Seller and Seller agreed to transfer to the Company the specified equity securities of all companies in the Life Sciences Portfolio at set prices at various future dates. The transfer dates would vary among the Life Sciences Portfolio companies as the Transaction Agreement gives the Company the exclusive right to determine when to call for transfer of each security, and because each Life Sciences Portfolio company (or its existing equity holders) may be required to approve the transfer due to rights of first refusals and other company-specific terms and conditions. Thus, the execution of the Transaction Agreement resulted in forward contracts for the Company to purchase equity securities in each public and private company at a specified price on a future date. In accordance with the Transaction Agreement, the Company transferred the total purchase price of £223.9 million into an escrow account. Upon the transfer of equity securities in the Life Sciences Portfolio to the Company, the associated funds were released from the escrow account to Seller based on the consideration amount assigned to the equity securities for such Life Sciences Portfolio company in the Transaction Agreement. As of December 31, 2020, all of the equity securities in the Life Sciences Portfolio were transferred to the Company pursuant to the Transaction Agreement. The Company has sold a portion of the equity securities of such Life Sciences Portfolio while retaining an interest in a number of operating businesses, including a controlling interest in one of the companies. For accounting purposes, the total purchase price of the Life Sciences Portfolio was allocated to the individual equity securities based on their individual fair values as of April 3, 2020, in order to establish an appropriate cost basis for each of the acquired securities. The fair values of the public company securities were based on their quoted market price. The fair values of the private company securities were estimated based on recent financing transactions and secondary market transactions and factoring in a discount for the illiquidity of these securities. As of September 30, 2021 and December 31, 2020, the fair value of the Life Sciences Portfolio equity securities, excluding the equity method investment discussed below, was $354.6 million and $248.1 million, respectively. Changes in the fair value of Acacia’s investment in the Life Sciences Portfolio are recorded as unrealized gains or losses in the consolidated statements of operations. In late September 2021, the Company sold one security which resulted in a gain of $18.6 million. The proceeds of that sale were settled and received in early October 2021, and therefore the Company recorded a $21.5 million other receivable as included in the consolidated balance sheet as of September 30, 2021. Accordingly, this trade date receivable from the sale of equity securities has been reflected as a noncash investing activity in the consolidated statement of cash flows for the nine months ended September 30, 2021. 18 For the three and nine months ended September 30, 2021 and 2020, the consolidated statements of operations reflected the following from the Life Sciences Portfolio: Schedule of unrealized gains or losses Three Months Ended Nine Months Ended September 30, September 30, 2021 2020 2021 2020 (In thousands) Change in fair value of equity securities $ 63,907 $ 84,299 $ 112,180 $ 83,230 Change in fair value of equity securities derivative – 10,651 – 17,542 Change in fair value of equity securities forward contract – ( 74,662 ) – – Gain (loss) on sale of equity securities 37,112 1,908 52,167 ( 4,202 ) Gain on sale of prepaid investment and derivative – 2,845 – 2,845 Net realized and unrealized gain $ 101,019 $ 25,041 $ 164,347 $ 99,415 As part of the Company’s acquisition of equity securities in the Life Sciences Portfolio, the Company acquired a majority interest in the equity securities of MalinJ1 (63.9%), which were transferred to the Company on December 3, 2020. The acquisition of the MalinJ1 securities was accounted for as an asset acquisition as there was a change of control of MalinJ1 and substantially all of the fair value of the assets acquired was concentrated in a single identifiable asset, an investment in Viamet Pharmaceuticals Holdings, LLC (“Viamet”). As such, the cost basis of the MalinJ1 securities was used to allocate to the Viamet investment, the single identifiable asset, and no goodwill was recognized. The Company through its consolidation of MalinJ1 accounts for the Viamet investment under the equity method as MalinJ1 owns 41.0% of outstanding shares of Viamet. 4. INVESTMENT AT FAIR VALUE During 2016 and 2017, Acacia made certain investments in Veritone. As a result of these transactions, Acacia received an aggregate total of 4,119,521 shares of Veritone common stock and warrants to purchase a total of 1,120,432 shares of Veritone common stock at an exercise price of $13.61 per share expiring between 2020 and 2027. During the nine months ended September 30, 2020, Acacia sold all remaining 298,450 shares Veritone common stock and recorded a realized loss of $3.3 million. During the nine months ended September 30, 2020, Acacia exercised 154,312 warrants, and recognized a realized gain of $554,000 on the sale of common stock. During the nine months ended September 30, 2021, Acacia exercised all remaining 156,720 warrants, and recognized a realized gain of $3.6 million on the sale of common stock. The Company no longer has an investment in Veritone common stock and warrants. Changes in the fair value of Acacia’s investment in Veritone are recorded as unrealized gains or losses in the consolidated statements of operations. For the three and nine months ended September 30, 2021 and 2020, the consolidated statements of operations reflected the following: Schedule of gain on investments Three Months Ended Nine Months Ended September 30, September 30, 2021 2020 2021 2020 (In thousands) Change in fair value of investment, warrants $ – $ ( 3,081 ) $ ( 2,752 ) $ 225 Change in fair value of investment, common stock – – – 3,479 Gain on sale of investment, warrants – – 3,591 554 Loss on sale of investment, common stock – – – ( 3,316 ) Net realized and unrealized (loss) gain $ – $ ( 3,081 ) $ 839 $ 942 19 5. PATENTS, NET OF ACCUMULATED AMORTIZATION Acacia’s only identifiable intangible assets as of September 30, 2021 and December 31, 2020 are patents and patent rights. Patent-related accumulated amortization totaled $ 291.6 million and $ 319.9 million as of September 30, 2021 and December 31, 2020, respectively. Acacia’s patents have remaining estimated economic useful lives ranging from twenty-six to fifty-two months. The weighted average remaining estimated economic useful life of Acacia’s patents is approximately four years. The following table presents the scheduled annual aggregate amortization expense as of September 30, 2021: Schedule of intangible assets For the years ending December 31, (In thousands) Remainder of 2021 $ 2,612 2022 10,448 2023 10,381 2024 9,005 2025 6,630 Thereafter 750 Patents, net $ 39,826 For the nine months ended September 30, 2021, Acacia accrued patent and patent rights acquisition costs totaling $ 13.0 million, of which $ 8.0 million is due December 1, 2021 and $ 5.0 million is due February 18, 2023. Such amounts are included in accrued patent investment costs and other long-term liabilities in the consolidated balance sheet as of September 30, 2021, respectively. 6. STARBOARD INVESTMENT Series A Redeemable Convertible Preferred Stock On November 18, 2019, the Company entered into a Securities Purchase Agreement with Starboard Value LP (“Starboard”) and certain funds and accounts affiliated with, or managed by, Starboard (collectively, the “Buyers”) pursuant to which the Company issued (i) 350,000 shares of Series A Redeemable Convertible Preferred Stock with a par value of $0.001 per share and a stated value of $100 per share, and (ii) Series A Warrants to purchase up to 5,000,000 shares of the Company’s common stock to the Buyers. The Securities Purchase Agreement also established the terms of certain senior secured notes and additional Series B Warrants which may be issued to Starboard in the future. On June 4, 2020, the Company entered into a Supplemental Agreement, as defined below under “Senior Secured Notes”, with certain contractual agreements affecting the Series A Redeemable Convertible Preferred Stock, reflected below. The Series A Redeemable Convertible Preferred Stock can be converted into a number of shares of common stock equal to (i) the stated value thereof plus accrued and unpaid dividends, divided by (ii) the conversion price of $ 3.65 (subject to certain anti-dilution adjustments). Holders may elect to convert the Series A Redeemable Convertible Preferred Stock into common stock at any time. The Company may elect to convert the Series A Redeemable Convertible Preferred Stock into shares of Common Stock any time on or after November 15, 2025, provided that the closing price of the Company’s common stock equals or exceeds 190% of the conversion price for 30 consecutive trading days and assuming certain other conditions of the common stock have been met. Holders have the option to redeem all or a portion of the Series A Redeemable Convertible Preferred Stock during the periods of May 15, 2021 through August 15, 2021 and May 15, 2022 through August 15, 2022, provided that there is not outstanding at least $50.0 million aggregate principal of senior secured notes to the Buyers pursuant to the Securities Purchase Agreement at the time of the redemption. Holders also have the option to redeem all or a portion of the Series A Redeemable Convertible Preferred Stock during the period of November 15, 2024 through February 15, 2025. Additionally, holders have the option to redeem all or a portion of the Series A Redeemable Convertible Preferred Stock upon the occurrence of (i) a change of control or (ii) various other triggering events, such as the suspension from trading or delisting of the Company’s common stock. If the Series A Redeemable Convertible Preferred Stock is redeemed at the option of the holders, the redemption price may include a make-whole amount or a stated premium, depending on the redemption scenario. 20 The Company may redeem all, and not less than all, of the Series A Redeemable Convertible Preferred Stock (i) upon a change of control or (ii) during the period of May 15, 2022 through August 15, 2022, provided that there is not outstanding at least $50.0 million aggregate principal of the senior secured notes at the time of the redemption, and assuming certain conditions of the common stock have been met. If the Series A Redeemable Convertible Preferred Stock is redeemed at the option of the Company, the redemption price would include a make-whole amount or a 15% premium depending on the circumstances. If any Series A Redeemable Convertible Preferred Stock remains outstanding on November 15, 2027, the Company shall redeem such Series A Redeemable Convertible Preferred Stock in cash. In all redemption scenarios, the redemption price for the Series A Redeemable Convertible Preferred Stock includes the stated value plus accrued and unpaid dividends. In addition, depending on the redemption scenario, the redemption price may also include a make-whole amount or stated premium as described above. When the Company issues Notes, the Holder may exchange the Series A Redeemable Convertible Preferred Stock for (i) Notes and (ii) Series B Warrants to purchase common stock. The Series A Redeemable Convertible Preferred Stock accrues cumulative dividends quarterly at annual rate of 3.0% on the stated value. Upon consummation of the approved investment in June 2020, the dividend rate increased to 8.0% on the stated value. Upon certain triggering events, the dividend rate will increase to 7.0% if the triggering event occurs before an approved investment or 10.0% on the stated value if the triggering event occurs after an approved investment. In connection with the approved investment in June 2020, the Company and the Buyers agreed that the dividend rate on the Series A Redeemable Convertible Preferred Stock would accrue at 3.0% so long as no triggering event occurs and the Company maintains $35.0 million in escrow. Series A Redeemable Convertible Preferred Stock also participates on an as-converted basis in any regular or special dividends paid to common stockholders. No accrued and unpaid dividends as of September 30, 2021. During October 2021, the Company consummated a suitable acquisition, accordingly $35.0 million was released to the Company. Upon consummation of the approved acquisition in October 2021, the dividend rate increased to 8.0% on the stated value. Refer to Note 11 for additional information related to the subsequent period acquisition. Holders of the Series A Redeemable Convertible Preferred Stock have the right to vote with common stockholders on an as-converted basis on all matters. Holders of Series A Redeemable Convertible Preferred Stock will also be entitled to a separate class vote with respect to amendments to the Company’s organizational documents that generally have an adverse effect on the Series A Redeemable Convertible Preferred Stock. Upon liquidation of the Company, holders of Series A Redeemable Convertible Preferred Stock have a liquidation preference over holders of our common stock and will be entitled to receive, prior to any distribution to holders of our common stock, an amount equal to the greater of (i) the stated value plus accrued and unpaid dividends or (ii) the amount that would have been received if the Series A Redeemable Convertible Preferred Stock had been converted into common stock immediately prior to the liquidation event at the then effective conversion price. The Company determined that certain features of the Series A Redeemable Convertible Preferred Stock should be bifurcated and accounted for as a derivative. Each of these features are bundled together as a single, compound embedded derivative. During 2019, total proceeds received and transaction costs incurred from the issuance of the Series A Redeemable Convertible Preferred Stock amounted to $ 35.0 million and $ 1.3 million, respectively. Proceeds received were allocated based on the fair value of the instrument without the Series A Warrants and of the Series A Warrants themselves at the time of issuance. The proceeds allocated to the Series A Redeemable Convertible Preferred Stock were then further allocated between the host preferred stock instrument and the embedded derivative, with the embedded derivative recorded at fair value and the Series A Redeemable Convertible Preferred Stock recorded at the residual amount. The portion of the proceeds allocated to the Series A Warrants, embedded derivative, and Series A Redeemable Convertible Preferred Stock was $4.8 million, $21.2 million, and $8.9 million, respectively. Transaction costs were also allocated between the Series A Redeemable Convertible Preferred Stock and the Series A Warrants on the same basis as the proceeds. The transaction costs allocated to the Series A Redeemable Convertible Preferred Stock were treated as a discount to the Series A Redeemable Convertible Preferred Stock. The transaction costs allocated to the Series A Warrants were expensed as incurred. 21 The Company classifies the Series A Redeemable Convertible Preferred Stock as mezzanine equity as the instrument will become redeemable at the option of the holder in various scenarios or otherwise on November 15, 2027. As it is probable that the Series A Redeemable Convertible Preferred Stock will become redeemable, the Company accretes the instrument to its redemption value using the effective interest method and recognizes any changes against additional paid in capital in the absence of retained earnings. Accretion for the three and nine months ended September 30, 2021 was $ 991,000 and $ 2.8 million, respectively. In connection with the issuance of the Series A Redeemable Convertible Preferred Stock, the Company executed a Registration Rights Agreement with Starboard and the Buyers and a Governance Agreement with Starboard and certain affiliates of Starboard. Under the Registration Rights Agreement, the Company agreed to provide certain registration rights with respect to the Series A Redeemable Convertible Preferred Stock and shares of Common Stock issued upon conversion. In accordance with the Governance Agreement, the Company agreed to (i) increase the size of the Board of Directors from six to seven members, (ii) appoint Jonathan Sagal as a director of the Company, (iii) grant Starboard the right to recommend two additional directors for appointment to the board, (iv) form a Strategic Committee of the Board tasked with sourcing and performing due diligence on potential acquisition targets, (v) appoint certain directors to the Strategic Committee, and (vi) appoint a director to the Nominating and Corporate Governance Committee. The following features of the Series A Redeemable Convertible Preferred Stock are required to be bifurcated from the host preferred stock and accounted for separately as an embedded derivative: (i) the right of the holders to redeem the shares (the “put option”), (ii) the right of the holders to receive common stock upon conversion of the shares (the “conversion option”), (iii) the right of the Company to redeem the shares (the “call option”), and (iv) the change in dividend rate upon consummation of an approved investment or a triggering event (the “contingent dividend rate feature”). These features are required to be accounted for separately from the Series A Redeemable Convertible Preferred Stock because the features were determined to be not clearly and closely related to the debt-like host and also did not meet any other scope exceptions for derivative accounting. Therefore, these features are bundled together and are accounted for as a single, compound embedded derivative liability. Accordingly, we have recorded an embedded derivative liability representing the combined fair value of each of these features. The embedded derivative liability is adjusted to reflect fair value at each period end with changes in fair value recorded other income or (expense) in the “Change in fair value of the Series A and B warrants and embedded derivatives” financial statement line item of the consolidated statements of operations. As of September 30, 2021 and December 31, 2020, the fair value of the Series A embedded derivative liabilities was $ 41.4 million and $ 26.7 million, respectively. Series A Warrants On November 18, 2019, in connection with the issuance of the Series A Redeemable Convertible Preferred Stock, the Company issued a detachable Series A Warrants to acquire up to purchase 5 million shares of common stock at a price of $3.65 per share (subject to certain anti-dilution adjustments) at any time during a period of eight years beginning on the instrument’s issuance date of the Series A Warrants. The fair value of the Series A Warrants was $ 4.8 million upon issuance. The Series A Warrants will be recognized at fair value at each reporting period until exercised, with changes in fair value recognized in other income or (expense) in the consolidated statements of operations. As of September 30, 2021 and December 31, 2020, the fair value of the Series A Warrants was $ 18.5 million and $ 6.6 million, respectively. As of September 30, 2021, the Series A Warrants have no t been exercised. The Series A Warrants are classified as a liability in accordance with ASC 480, “Distinguishing Liabilities from Equity”, as the agreement provides for net cash settlement upon a change in control, which is outside the control of the Company. Series B Warrants On February 25, 2020, pursuant to the terms of the Securities Purchase Agreement with Starboard and the Buyers, the Company issued Series B Warrants to purchase up to 100 million shares of the Company’s common stock at an exercise price (subject to certain price-based anti-dilution adjustments) of either (i) $5.25 per share, if exercising by cash payment, within 30 months from the issuance date (i.e., August 25, 2022); or (ii) $3.65 per share, if exercising by cancellation of a portion of Notes. The Company issued the Series B Warrants for an aggregate purchase price of $ 4.6 million. The Series B Warrants expire on November 15, 2027. 22 In connection with the issuance of the Notes on June 4, 2020, the terms of certain of the Series B Warrants were amended to permit the payment of the lower exercise price of $3.65 through the payment of cash, rather than only through the cancellation of Notes outstanding, at any time until the expiration date of November 15, 2027. 31,506,849 of the Series B Warrants are subject to this adjustment with the remaining balance of 68,493,151 Series B Warrants continuing under their original terms. As of September 30, 2021, the Series B Warrants have no t been exercised. The Series B Warrants will be recognized at fair value at each reporting period until exercised, with changes in fair value recognized in other income or (expense) in the consolidated statements of operations. As of September 30, 2021 and December 31, 2020, the fair value of the Series B Warrants was $ 229.6 million and $ 52.3 million, respectively. The Series B Warrants are classified as a liability in accordance with ASC 480, “Distinguishing Liabilities from Equity”, as the agreement provides for net cash settlement upon a change in control, which is outside the control of the Company. Senior Secured Notes Pursuant to the Securities Purchase Agreement dated November 18, 2019 with Starboard and the Buyers, on June 4, 2020, the Company issued $ 115.0 million in Notes to the Buyers. Also on June 4, 2020, in connection with the issuance of the Notes, the Company entered into a Supplemental Agreement with Starboard (the “Supplemental Agreement”), pursuant to which the Company agreed to redeem $ 80.0 million aggregate principal amount of the Notes by September 30, 2020, and $ 35.0 million aggregate principal amount of the Notes by December 31, 2020, resulting in the total principal outstanding being paid by December 31, 2020. Per the Supplemental Agreement, interest is payable semiannually at a rate of 6.00 % per annum, and in an event of default, the interest rate is increased to 10.00 % per annum. The Notes include certain financial and non-financial covenants. Additionally, all or any portion of the principal amount outstanding under the Notes may, at the election of Starboard, be surrendered to the Company for cancellation in payment of the exercise price upon the exercise of Series B Warrants. On June 30, 2020, the Company entered into an Exchange Agreement (the “Exchange Agreement”) with Merton Acquisition HoldCo LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company (“Merton”) and Starboard, on behalf of itself and on behalf of certain funds and accounts under its management, including the holders of the Notes. Pursuant to the Exchange Agreement, the holders of the Notes exchanged the entire outstanding principal amount for new senior notes (the “New Notes”) issued by Merton having an aggregate outstanding original principal amount of $ 115.0 million. The New Notes bear interest at a rate of 6.00% per annum and had a maturity date of December 31, 2020. The New Notes are fully guaranteed by the Company and are secured by an all-assets pledge of the Company and Merton and non-recourse equity pledges of each of the Company’s material subsidiaries. Pursuant to the Exchange Agreement, the New Notes (i) are deemed to be “Notes” for purposes of the Securities Purchase Agreement, (ii) are deemed to be “June 2020 Approved Investment Notes” for purposes of the Supplemental Agreement, and with the Company agreeing to redeem $80 million principal amount of the New Notes by September 30, 2020 and $35 million principal amount of the New Notes by December 31, 2020, and (iii) are deemed to be “Notes” for the purposes of the Series B Warrants, and therefore may be tendered pursuant to a Note Cancellation under the Series B Warrants on the terms set forth in the Series B Warrants and the New Notes. Delivery of notes in the form of the New Notes will also satisfy the delivery of Exchange Notes pursuant to Section 16(i) of the Certificate of Designations of the Company’s Series A Convertible Preferred Stock, par value $0.001 per share. The New Notes will not be deemed to be “Notes” for the purposes of the Registration Rights Agreement, dated as of November 18, 2019, by and among the Company, Starboard and the Buyers. Because the New Notes are to be settled within twelve months pursuant to their terms, they are classified as current liabilities in the consolidated balance sheets. The Company capitalized $ 4.6 million in lender fees and $ 0.5 million in other issuance costs associated with the issuance of the Notes. The $4.6 million of lender fees are recognized as long-term deferred debt issuance costs and are included in other non-current assets in the consolidated balance sheets, and will be amortized to interest expense until November 15, 2027, the maturity date of Series A Redeemable Convertible Preferred Stock. The $0.5 million issuance costs are recognized as a discount on the Notes and will be amortized to interest expense over the contractual life of the Notes. There was $3.1 million and $ 863,000 accrued and unpaid interest on the New Notes as of September 30, 2021 and December 31, 2020, respectively. On January 29, 2021, the Company redeemed $ 50.0 million of the New Notes and on March 31, 2021, the Company reissued $ 50.0 million of the New Notes. On June 30, 2021, the Company issued $30.0 million in additional New Notes (the “June 2021 Merton Notes”) and amended the maturity date of the New Notes to October 15, 2021 . On September 30, 2021, the Company issued $35.0 million in additional New Notes (the “September 2021 Merton Notes”) and amended the maturity date of the New Notes to December 1, 2021. The June and September 2021 Merton Notes cannot be used to exercise Series B Warrants issued to Starboard Value. The total principal amount outstanding of New Notes as of September 30, 2021 and December 31, 2020 was $ 180.0 million and $ 115.0 million, respectively. 23 Modifications to Series A Redeemable Convertible Preferred Stock and Series B Warrants The June 4, 2020 Supplemental Agreement also provided for (i) a waiver of increased dividends under the original terms of the Series A Redeemable Convertible Preferred Stock that would have otherwise accrued due to the Company’s use of the $35.0 million proceeds received from Starboard and the Buyers upon the issuance of the Series A Redeemable Convertible Preferred Stock in November 2019, (ii) the replacement of original optional redemption rights for the Series A Redeemable Convertible Preferred Stock provided to both the Company and the holders that otherwise would have been nullified through the issuance of the Notes, and (iii) an amendment to the terms of the previously issued Series B Warrants to permit the payment of the lower exercise price of $3.65 through the payment of cash, rather than only through the cancellation of Notes outstanding, at any time until the expiration of the Series B Warrants on November 15, 2027. 31,506,849 of the Series B Warrants are subject to this adjustment with the remaining balance of 68,493,151 Series B Warrants continuing under their original terms. We analyzed the amendments to the terms of the Series A Redeemable Convertible Preferred Stock and determined that the amendments were not significant. Therefore, the amendments are accounted for as a modification on a prospective basis. The incremental fair value of the Series B Warrants associated with the modification of their terms in connection with the issuance of the Notes was $ 1.3 million and is recognized as a discount on the Notes and will be amortized to interest expense over the contractual life of the Notes. As of September 30, 2021, $ 1.2 million was amortized to interest expense and $ 151,000 is remaining to be amortized until the maturity date of December 1, 2021. 7. FAIR VALUE MEASUREMENTS U.S. GAAP defines fair value as the price that would be received for an asset or the exit price that would be paid to transfer a liability in the principal or most advantageous market in an orderly transaction between market participants on the measurement date, and also establishes a fair value hierarchy which requires an entity to maximize the use of observable inputs, where available. The three-level hierarchy of valuation techniques established to measure fair value is defined as follows: (i) Level 1 - Observable Inputs : Quoted prices in active markets for identical investments; (ii) Level 2 - Pricing Models with Significant Observable Inputs : Other significant observable inputs, including quoted prices for similar investments, interest rates, credit risk, etc.; and (iii) Level 3 - Unobservable Inputs : Unobservable inputs reflect management’s best estimate of what market participants would use in pricing the asset or liability at the measurement date. Consideration is given to the risk inherent in the valuation technique and the risk inherent in the inputs to the model. Management estimates include certain pricing models, discounted cash flow methodologies and similar techniques that use significant unobservable inputs, including the entity’s own assumptions in determining the fair value of derivatives and certain investments. Whenever possible, the Company is required to use observable market inputs (Level 1 - quoted market prices) when measuring fair value. In such cases, the level at which the fair value measurement falls is determined based on the lowest level input that is significant to the fair value measurement. The assessment of the significance of a particular input requires judgment and considers factors specific to the asset or liability being measured. In certain cases, inputs used to measure fair value may fall into different levels of the fair value hierarchy. Acacia holds the following types of financial instruments at September 30, 2021 and December 31, 2020: Equity Securities at Fair Value. Equity securities includes investments in public company common stock and are recorded at fair value based on the quoted market price of each share on the valuation date. The fair value of these securities are within Level 1 of the valuation hierarchy. Equity investments that do not have regular market pricing, but for which fair value can be determined based on other data values or market prices, are recorded at fair value within Level 2 of the valuation hierarchy. At September 30, 2021, our Level 2 equity securities include an investment measured with an applied pricing model that includes significant observable inputs to the public company common stock value. The fair value of the Level 2 equity securities investment as of September 30, 2021 was estimated based on a discount of 7.5 percent determined using the following significant inputs to the pricing model: expected term of restriction of 6 months and volatility of approximately 45 percent. 24 Investments at Fair Value - Common Stock and Warrants. Acacia’s equity investment in Veritone common stock was recorded at fair value based on the quoted market price of Veritone’s common stock on the applicable valuation date (Level 1). Warrants were recorded at fair value, as based on the Black-Scholes option-pricing model (Level 2). Refer to Note 4 for additional information. Series A Warrants. Series A Warrants are recorded at fair value, using Black-Scholes option-pricing model (Level 3). In the quarter ended March 31, 2021, there was a change in estimate with regard to the calculation of the volatility assumption used in the Black Scholes option-pricing model. As a result, the Series A Warrants are now measured as Level 3 as opposed to Level 2 as measured previously. The fair value of the Series A Warrants as of September 30, 2021 was estimated based on the following significant assumptions: volatility of 30 percent, risk-free rate of 1.16 percent, term of 6.04 years and a dividend yield of 0 percent. Series B Warrants. Series B Warrants are recorded at fair value, using Black-Scholes option-pricing model (Level 3). In the quarter ended March 31, 2021, there was a change in methodology used to an acceptable Black-Scholes option-pricing model from a Monte Carlo valuation technique used to value the Series B Warrants as of December 31, 2020. The fair value of the Series B Warrants as of September 30, 2021 was estimated based on the following significant assumptions: (1) volatility of 30 percent, risk-free rate of 1.17 percent, term of 6.13 years and a dividend yield of 0 percent, and (2) volatility of 25 percent, risk-free rate of 0.08 percent, term of 0.90 years and a dividend yield of 0 percent. Embedded Derivative Liability. Embedded derivatives that are required to be bifurcated from their host contract are evaluated and valued separately from the host instrument. A binomial lattice framework is used to estimate the fair value of the embedded derivative in the Series A Redeemable Convertible Preferred Stock issued by the Company in 2019 (Level 3). The binomial model utilizes the Tsiveriotis and Fernandes implementation in which a convertible instrument is split into two separate components within a single lattice framework: a cash-only component which is subject to the selected risk-adjusted discount rate and an equity component which is subject only to the risk-free rate. The model considers the (i) implied volatility of the value of our common stock, (ii) appropriate risk-free interest rate, (iii) credit spread, (iv) dividend yield, (v) dividend accrual (and a step-up in rates), and (vi) event probabilities of the various conversion and redemption scenarios. The volatility of the Company’s common stock is estimated by analyzing the Company’s historical volatility, implied volatility of publicly traded stock options, and the Company’s current asset composition and financial leverage. The selected volatility, as described below, represents a haircut from the Company’s actual realized historical volatility. A volatility haircut is a concept used to describe a commonly observed occurrence in which the volatility implied by market prices involving options, warrants, and convertible debt is lower than historical actual realized volatility. The assumed base case term used in the valuation model is the period remaining until November 15, 2027, the Series A Redeemable Convertible Preferred Stock maturity date. The risk-free interest rate is based on the yield on the U.S. Treasury with a remaining term equal to the expected term of the conversion and early redemption options. The significant assumptions utilized in the Company’s valuation of the embedded derivative at September 30, 2021 are as follows: volatility of 30 percent, risk-free rate of 1.20 percent, term of 6.13 years, discount rate of 9.40 percent and a dividend yield of 0 percent. The fair value measurement of the embedded derivative is sensitive to these assumptions and changes in these assumptions could result in a materially different fair value measurement. 25 Financial assets and liabilities measured at fair value on a recurring basis were as follows: Schedule of financial assets and liabilities at fair value Level 1 Level 2 Level 3 Total Assets (In thousands) September 30, 2021: Equity securities at fair value $ 119,280 $ 267,840 $ – $ 387,120 Total $ 119,280 $ 267,840 $ – $ 387,120 December 31, 2020: Equity securities at fair value $ 109,103 $ – $ – $ 109,103 Investment at fair value - warrants – 2,752 – 2,752 Total $ 109,103 $ 2,752 $ – $ 111,855 Liabilities September 30, 2021: Series A warrants $ – $ – $ 18,527 $ 18,527 Series A embedded derivative liabilities – – 41,411 41,411 Series B warrants – – 229,637 229,637 Total $ – $ – $ 289,575 $ 289,575 December 31, 2020: Series A warrants $ – $ 6,640 $ – $ 6,640 Series A embedded derivative liabilities – – 26,728 26,728 Series B warrants – – 52,341 52,341 Total $ – $ 6,640 $ 79,069 $ 85,709 The following tables set forth a summary of the changes in the estimated fair value of the Company’s Level 3 liabilities, which are measured at fair value on a recurring basis: Schedule of changes in fair value Level 3 liabilities Series A Warrant Liability Series A Embedded Derivative Liability Series B Warrant Liability Total (In thousands) Balance at January 1, 2021 $ – $ 26,728 $ 52,341 $ 79,069 Transfers to Level 3 6,640 – – 6,640 Remeasurement to fair value 11,824 14,463 178,198 204,485 Balance at June 30, 2021 18,464 41,191 230,539 290,194 Remeasurement to fair value 63 220 ( 902 ) ( 619 ) Balance at September 30, 2021 $ 18,527 $ 41,411 $ 229,637 $ 289,575 Series A Warrant Liability Series A Embedded Derivative Liability Series B Warrant Liability Total (In thousands) Balance at January 1, 2020 $ 3,568 $ 17,974 $ – $ 21,542 Transfers to Level 3 – – 5,929 5,929 Remeasurement to fair value 3,384 11,539 52,361 67,284 Balance at June 30, 2020 6,952 29,513 58,290 94,755 Remeasurement to fair value ( 1,348 ) ( 3,831 ) ( 15,493 ) ( 20,672 ) Balance at September 30, 2020 $ 5,604 $ 25,682 $ 42,797 $ 74,083 In accordance with U.S. GAAP, from time to time, the Company measures certain assets at fair value on a nonrecurring basis. The Company reviews the carrying value of equity securities without readily determinable fair value, equity method investments and patents on a quarterly basis for indications of impairment, and other long-lived assets at least annually. When indications of potential impairment are identified, the Company may be required to determine the fair value of those assets and record an adjustment for the carrying amount in excess of the fair value determined. Any fair value determination would be based on valuation approaches, which are appropriate under the circumstances and utilize Level 2 and Level 3 measurements as required. 26 8. COMMITMENTS AND CONTINGENCIES Facility Leases The Company primarily leases office facilities under operating lease arrangements that will end in various years through July 2024. On June 7, 2019, we entered into a building lease agreement (the “New Lease”) with Jamboree Center 4 LLC (the “Landlord”). Pursuant to the New Lease, we have leased approximately 8,293 square feet of office space in Irvine, California. The New Lease commenced on August 1, 2019. The term of the New Lease is 60 months from the commencement date, provides for annual rent increases, and does not provide us the right to early terminate or extend our lease terms. On January 7, 2020, we entered into a building lease agreement (the “New York Office Lease”) with Sage Realty Corporation (the “New York Office Landlord”). Pursuant to the New York Office Lease, we have leased approximately 4,000 square feet of office space for our corporate headquarters in New York, New York. The New York Office Lease commenced on February 1, 2020. The term of the New York Office Lease is 24 months from the commencement date, provides for annual rent increases, and does not provide us the right to early terminate or extend our lease terms. During August 2021, we entered into a first amendment of the New York Office Lease, to commence for a period of three years upon landlords’ substantial completion of adequate substitution space, as defined. To date, the substitution space is not ready for use, accordingly the term extension has not begun. Operating lease costs were $ 155,000 and $ 174,000 for the three months ended September 30, 2021 and 2020, respectively, and $ 457,000 and $ 459,000 for the nine months ended September 30, 2021 and 2020, respectively. The table below presents aggregate future minimum payments due under the New Lease and the New York Office Lease discussed above, reconciled to long-term lease liabilities and short-term lease liabilities (included in accrued expenses and other current liabilities) included in the consolidated balance sheet as of September 30, 2021: Schedule of future minimum operating lease payments Operating Leases (In thousands) Remainder of 2021 $ 149 2022 370 2023 364 2024 218 Thereafter – Total minimum payments 1,101 Less: short-term lease liabilities ( 430 ) Long-term lease liabilities $ 671 27 Inventor Royalties and Contingent Legal Expenses In connection with the investment in certain patents and patent rights, certain of Acacia’s operating subsidiaries executed related agreements which grant to the former owners of the respective patents or patent rights, the right to receive inventor royalties based on future net revenues (as defined in the respective agreements) generated as a result of licensing and otherwise enforcing the respective patents or patent portfolios. Acacia’s operating subsidiaries may retain the services of law firms that specialize in patent licensing and enforcement and patent law in connection with their licensing and enforcement activities. These law firms may be retained on a contingent fee basis whereby such law firms are paid on a scaled percentage of any negotiated fees, settlements or judgments awarded based on how and when the fees, settlements or judgments are obtained. Patent Enforcement Certain of Acacia’s operating subsidiaries are often required to engage in litigation to enforce their patents and patent rights. In connection with any of Acacia’s operating subsidiaries’ patent enforcement actions, it is possible that a defendant may request and/or a court may rule that an operating subsidiary has violated statutory authority, regulatory authority, federal rules, local court rules, or governing standards relating to the substantive or procedural aspects of such enforcement actions. In such event, a court may issue monetary sanctions against Acacia or its operating subsidiaries or award attorney’s fees and/or expenses to a defendant(s), which could be material. Acacia is subject to claims, counterclaims and legal actions that arise in the ordinary course of business. Management believes that the ultimate liability with respect to these claims and legal actions, if any, will not have a material effect on Acacia’s consolidated financial position, results of operations or cash flows. In December 2017, the Federal Court of Canada allowed a counterclaim for invalidity of a patent asserted by Rapid Completions LLC and awarded costs payable by Rapid Completions LLC in amounts that are included in the 2021 and 2020 accrual balances discussed below. During the three months ended September 30, 2021, the Company made approximately $1.0 million in settlement payments. On September 6, 2019, Slingshot Technologies, LLC, or Slingshot, filed a lawsuit in Delaware Chancery Court against the Company and Acacia Research Group, LLC, or collectively, the Acacia Entities, Monarch Networking Solutions LLC (“Monarch”), Acacia board member Katharine Wolanyk, and Transpacific IP Group, Ltd., or Transpacific. Slingshot alleges that the Acacia Entities and Monarch misappropriated its confidential and proprietary information, purportedly furnished to the Acacia Entities and Monarch by Ms. Wolanyk, in acquiring a patent portfolio from Transpacific after Slingshot’s exclusive option to purchase the same patent portfolio from Transpacific had already expired. Slingshot seeks monetary damages, as well as equitable and injunctive relief related to its alleged right to own the portfolio. On March 15, 2021, the court issued orders granting Monarch’s motion to dismiss for lack of personal jurisdiction and Ms. Wolanyk’s motion to dismiss for lack of subject matter jurisdiction. The remaining parties then commenced discovery, and have since served initial written requests and responses, and notices of the depositions of the parties’ corporate designees. The Acacia Entities maintain that Slingshot’s allegations are baseless, that the Acacia Entities neither had access to nor used Slingshot’s information in acquiring the portfolio, that the Acacia Entities acquired the portfolio as a result of the independent efforts of its IP licensing group, and that Slingshot suffered no damages given its exclusive option to purchase the portfolio had already ended and it has proven itself incapable of closing on the portfolio purchase. During the three months ended September 30, 2021 and 2020, there were no operating expenses related to settlement and contingency accruals. During the nine months ended September 30, 2021, we incurred $338,000 in operating expenses for settlement and contingency accruals. During the nine months ended September 30, 2020, operating expenses included a net income for settlement offset by contingency accruals totaling $ 308,000 , net of prior accruals. At September 30, 2021 and December 31, 2020, our contingency accrual balance was $ 587,000 and $ 1.3 million, respectively. 28 9. STOCKHOLDERS’ EQUITY Repurchases of Common Stock On August 5, 2019, Acacia’s Board of Directors approved a stock repurchase program, which authorized the purchase of up to $ 10.0 million of the Company’s common stock through open market purchases, through block trades, through 10b5-1 plans, or by means of private purchases, from time to time, through July 31, 2020. Stock repurchases for the periods presented, all of which were purchased as part of a publicly announced plan or program, were as follows: Schedule of repurchased shares Total Number of Shares Purchased Average Price paid per Share Approximate Dollar Value of Shares that May Yet be Purchased under the Program Plan Expiration Date March 20, 2020 - March 31, 2020 576,898 $ 2.28 $ 8,686,000 July 31, 2020 April 1, 2020 - April 23, 2020 1,107,639 $ 2.42 $ 6,001,000 July 31, 2020 Total repurchases in 2020 1,684,537 $ 2.37 In determining whether or not to repurchase any shares of Acacia’s common stock, Acacia’s Board of Directors consider such factors, among others, as the impact of the repurchase on Acacia’s cash position, as well as Acacia’s capital needs and whether there is a better alternative use of Acacia’s capital. Acacia has no obligation to repurchase any amount of its common stock under the Stock Repurchase Program. Repurchases to date were made in the open market in compliance with applicable SEC rules. The authorization to repurchase shares presented an opportunity to reduce the outstanding share count and enhance stockholder value. Tax Benefits Preservation Plan On March 12, 2019, Acacia’s Board of Directors announced that it had unanimously approved the adoption of a Tax Benefits Preservation Plan (the “Plan”). Our stockholders ratified the adoption of the Plan in July 2019. The purpose of the Plan is to protect the Company’s ability to utilize potential tax assets, such as net operating loss carryforwards and tax credits to offset potential future taxable income. The Plan is designed to reduce the likelihood that the Company will experience an ownership change by discouraging (i) any person or group from acquiring beneficial ownership of 4.9% or more of the Company’s outstanding common stock and (ii) any existing stockholders who, as of the time of the first public announcement of the adoption of the Plan, beneficially own more than 4.9% of the Company’s then-outstanding shares of the Company’s common stock from acquiring additional shares of the Company’s common stock (subject to certain exceptions). There is no guarantee, however, that the Plan will prevent the Company from experiencing an ownership change. In connection with the adoption of the Plan, Acacia’s Board of Directors authorized and declared a dividend distribution of one right for each outstanding share of the Company’s common stock to stockholders of record at the close of business on March 16, 2019. On or after the distribution date, each right would initially entitle the holder to purchase one one-thousandth of a share of the Company’s Series B Junior Participating Preferred Stock, $0.001 par value for a purchase price of $12.00. On March 15, 2021 the rights expired pursuant to their terms. The Company has a provision in its Amended and Restated Certificate of Incorporation, as amended (the “Charter Provision”) which generally prohibits transfers of its common stock that could result in an ownership change. Like the Plan, the purpose of the Charter Provision is to protect the Company’s ability to utilize potential tax assets, such as net operating loss carryforwards and tax credits to offset potential future taxable income. The Charter Provision was approved by the Company’s stockholders on July 15, 2019. 29 10. INCOME/LOSS PER SHARE The following table presents the shares of common stock outstanding used in the calculation of basic and diluted net income (loss) per share: Calculation of basic and diluted net loss per share Three Months Ended Nine Months Ended September 30, September 30, 2021 2020 2021 2020 (In thousands, except share and per share information) Numerator: Net income (loss) attributable to Acacia Research Corporation $ 89,604 $ 38,348 $ ( 55,507 ) $ 33,205 Dividend on Series A redeemable convertible preferred stock ( 262 ) ( 467 ) ( 785 ) ( 1,118 ) Accretion of Series A redeemable convertible preferred stock ( 991 ) ( 733 ) ( 2,762 ) ( 2,045 ) Undistributed earnings allocated to participating securities ( 15,367 ) ( 6,619 ) – ( 5,204 ) Net income (loss) attributable to common stockholders - Basic 72,984 30,529 ( 59,054 ) 24,838 Add: Dividend on Series A redeemable convertible preferred stock – 467 – – Add: Accretion of Series A redeemable convertible preferred stock – 733 – – Less: Change in fair value of Series A redeemable convertible preferred stock embedded derivative – ( 3,831 ) – – Less: Change in fair value of Series A warrants 63 ( 1,348 ) – ( 1,348 ) Less: Change in fair value of dilutive Series B warrants ( 902 ) ( 5,557 ) – ( 5,557 ) Add: Interest expense associated with Starboard Notes, net of tax 1,536 1,889 – 1,889 Add: Undistributed earnings allocated to participating securities 15,367 6,619 – 5,204 Reallocation of undistributed earnings to participating securities ( 8,877 ) ( 296 ) – ( 3,645 ) Net income (loss) attributable to common stockholders - Diluted $ 80,171 $ 29,205 $ ( 59,054 ) $ 21,381 Denominator: Weighted-average shares used in computing net income (loss) per share attributable to common stockholders - Basic 48,949,504 48,467,885 48,759,873 48,949,706 Potentially dilutive common shares: Series A Preferred Stock – 9,589,041 – – Restricted stock 798,356 728,936 – 598,328 Stock options 35,815 21,624 – – Series A Warrants 2,019,724 310,367 – 103,456 Series B Warrants 41,278,103 31,506,849 – 10,502,283 Weighted-average shares used in computing net income (loss) per share attributable to common stockholders - Diluted 93,081,502 90,624,702 48,759,873 60,153,773 Basic net income (loss) per common share $ 1.49 $ 0.63 $ ( 1.21 ) $ 0.51 Diluted net income (loss) per common share $ 0.86 $ 0.32 $ ( 1.21 ) $ 0.36 Anti-dilutive potential common shares excluded from the computation of diluted net income (loss) per common share: Equity-based incentive awards 398,168 191,312 2,230,624 310,083 Series A warrants – – 5,000,000 – Series B warrants – 68,493,151 100,000,000 68,493,151 Total 398,168 68,684,463 107,230,624 68,803,234 11. SUBSEQUENT EVENT On October 8, 2021, the Company acquired all of the outstanding stock of a leading printing technology company, for a cash purchase price of $37.0 million, which includes an initial $33.0 million cash payment and a $4.0 million working capital adjustment. The business services a diverse group of customers that operate across healthcare, food and beverage, manufacturing and logistics, and other sectors. The acquisition triggered the release of $35.0 million held in escrow (refer to Note 2 “Long-Term Restricted Cash” for additional information). 30 Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operation The following discussion and analysis of our financial condition and results of operations should be read together with our unaudited condensed consolidated financial statements and the related notes included in Part I, Item1 of this Quarterly Report on Form10-Q for the three and nine months ended September 30, 2021, or this Report. This discussion and analysis contains forward-looking statements that are based on our current expectations and reflect our plans, estimates and anticipated future financial performance. See the section of this Report entitled “Cautionary Statement Regarding Forward-Looking Statements” for additional information. These statements involve numerous risks and uncertainties. Our actual results may differ materially from those expressed or implied by these forward-looking statements as a result of many factors, including those set forth in “Risk Factors” in Part II, Item1A. of this Report. General Acacia Research Corporation (the “Company,” “we,” “us,” or “our”) acquires businesses and operating assets that we believe to be undervalued and where we believe we can leverage our resources and skill sets to realize and unlock value. We leverage our (i) access to flexible capital that can be deployed unconditionally, (ii) expertise in corporate governance and operational restructuring, (iii) willingness to invest in out of favor industries and businesses that suffer from a complexity discount and untangle complex, multi-factor situations, and (iv) expertise and relationships in certain sectors, to complete strategic acquisitions of businesses, divisions, and/or assets with a focus on mature technology, healthcare, industrial and certain financial segments. We seek to identify opportunities where we believe we are advantaged buyers, where we can avoid structured sale processes and create the opportunity to purchase businesses, divisions and/or assets of companies at an attractive price due to our unique capabilities, relationships, or expertise, or where we believe the target would be worth more to us than to other buyers. We operate our business based on three key principles of People, Process and Performance and have built a management team with identified expertise in Research, Execution and Operation of our targeted acquisitions. We utilized these skill sets and resources to acquire a portfolio of equity securities of public and private life science businesses, or the “Life Sciences Portfolio”, in June 2020. As of September 30, 2021, we have monetized a portion of the portfolio while retaining an interest in a number of operating businesses, including a controlling interest in one of the companies in the portfolio. Further, some of the businesses in which we continue to hold an interest generate revenues through the receipt of royalties. We also operate our legacy business of investing in intellectual property, or IP, and related absolute return assets and engaging in the licensing and enforcement of patented technologies. We partner with inventors and patent owners, from small entities to large corporations, applying our legal and technology expertise to patent assets to unlock the financial value in their patented inventions. We are an intermediary in the patent marketplace, bridging the gap between invention and application, and facilitating efficiency in connection with the monetization of patent assets. We generate revenues and related cash flows from the granting of IP rights for the use of patented technologies that our operating subsidiaries control or own. We assist patent owners with the prosecution and development of their patent portfolios, the protection of their patented inventions from unauthorized use, the generation of licensing revenue from users of their patented technologies and, where necessary, with the enforcement against unauthorized users of their patented technologies through the filing of patent infringement litigation. Currently, on a consolidated basis, our operating subsidiaries own or control the rights to multiple patent portfolios, which include U.S. patents and certain foreign counterparts, covering technologies used in a variety of industries. We have established a proven track record of licensing and enforcement success with over 1,600 license agreements executed to date, across nearly 200 patent portfolio licensing and enforcement programs. To date, we have generated gross licensing revenue of approximately $1.7 billion, and have returned $828.7 million to our patent partners. 31 COVID-19 Pandemic The full impact of the COVID-19 pandemic continues to evolve as of the date of this report. While the Company does not expect the current situation to present direct risks to its business, and it has not had a material impact to date, the COVID-19 pandemic could adversely impact the Company’s operations, as well as the operations of its licensees and other business partners. Our cash is held in major financial institutions primarily in government instruments. Our business is fully able to operate in a socially distanced and/or remote capacity and in accordance with applicable laws, policies and best practices. Our workforce is provided ample paid sick leave, and we have in place robust disaster recovery and business continuity policies that have been revised to account for a long-term remote work contingency such as this. However, the ongoing pandemic may present risks that we do not currently consider material or risks that may evolve quickly that could have a materially adverse effect on our business, results of operations and financial condition. In response to the COVID-19 pandemic, the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) was signed into law on March 27, 2020. The CARES Act, among other things, includes tax provisions relating to refundable payroll tax credits, deferment of employer’s social security payments, net operating loss utilization and carryback periods and modifications to the net interest deduction limitations. The CARES Act has not had a material impact on the Company’s income tax provision. On December 27, 2020, the President of the United States signed the Consolidated Appropriations Act, 2021 (“Consolidated Appropriations Act”) into law. The Consolidated Appropriations Act is intended to enhance and expand certain provisions of the CARES Act, allows for the deductions of expenses related to the Payroll Protection Program funds received by companies, and provides an update to meals and entertainment expensing for 2021. The Consolidated Appropriations Act did not have a material impact to the Company’s income tax provision for 2020. The Company will continue to evaluate the impact of the Consolidated Appropriations Act on its financial position, results of operations and cash flows, if any. On March 11, 2021 the United States enacted the American Rescue Plan Act of 2021. This Act includes various income and payroll tax measures. The Company does not expect a material impact of the American Rescue Plan on its consolidated financial statements and related disclosures. Executive Summary Overview Our operating activities during the periods presented were focused on the continued operation of our patent licensing and enforcement business, including the continued pursuit of our ongoing patent licensing and enforcement programs. Patent Licensing and Enforcement - Patent Litigation Trial Dates and Related Trials As of the date of this report, our operating subsidiaries have nine pending patent infringement cases with scheduled trial dates in the next twelve months. Patent infringement trials are components of our overall patent licensing process and are one of many factors that contribute to possible future revenue generating opportunities for us. Scheduled trial dates, as promulgated by the respective court, merely provide an indication of when, in future periods, the trials may occur according to the court’s scheduling calendar at a specific point in time. A court may change previously scheduled trial dates. In fact, courts often reschedule trial dates for various reasons that are unrelated to the underlying patent assets and typically for reasons that are beyond our control. While scheduled trial dates provide an indication of the timing of possible future revenue generating opportunities for us, the trials themselves and the immediately preceding periods represent the possible future revenue generating opportunities. These future opportunities can result in varying outcomes. In fact, it is difficult to predict the outcome of patent enforcement litigation at the trial level and outcomes can be unfavorable. It can be difficult to understand complex patented technologies, and as a result, this may lead to a higher rate of unfavorable litigation outcomes. Moreover, in the event of a favorable outcome, there is, in our experience, a higher rate of successful appeals in patent enforcement litigation than more standard business litigation. Such appeals are expensive and time consuming, resulting in increased costs and a potential for delayed or foregone revenue opportunities in the event of modification or reversal of favorable outcomes. Although we diligently pursue enforcement litigation, we cannot predict with reliability the decisions made by juries and trial courts. Please refer to Part II, Item 1A. “Risk Factors” for additional information regarding trials, patent litigation and related risks. 32 - Litigation and Licensing Expense We expect patent-related legal expenses to continue to fluctuate from period to period based on the factors summarized herein, in connection with future trial dates, international enforcement, strategic patent portfolio prosecution and our current and future patent portfolio investment, prosecution, licensing and enforcement activities. The pursuit of enforcement actions in connection with our licensing and enforcement programs can involve certain risks and uncertainties, including the following: · Increases in patent-related legal expenses associated with patent infringement litigation, including, but not limited to, increases in costs billed by outside legal counsel for discovery, depositions, economic analyses, damages assessments, expert witnesses and other consultants, re-exam and inter partes review costs, case-related audio/video presentations and other litigation support and administrative costs, could increase our operating costs and decrease our profit generating opportunities; · Our patented technologies and enforcement actions are complex and, as a result, we may be required to appeal adverse decisions by trial courts in order to successfully enforce our patents. Moreover, such appeals may not be successful; · New legislation, regulations or rules related to enforcement actions, including any fee or cost shifting provisions, could significantly increase our operating costs and decrease our profit generating opportunities. Increased focus on the growing number of patent-related lawsuits may result in legislative changes which increase our costs and related risks of asserting patent enforcement actions; · Courts may rule that our subsidiaries have violated certain statutory, regulatory, federal, local or governing rules or standards by pursuing such enforcement actions, which may expose us and our operating subsidiaries to material liabilities, which could harm our operating results and our financial position; · The complexity of negotiations and potential magnitude of exposure for potential infringers associated with higher quality patent portfolios may lead to increased intervals of time between the filing of litigation and potential revenue events (i.e., markman dates, trial dates), which may lead to increased legal expenses, consistent with the higher revenue potential of such portfolios; and · Fluctuations in overall patent portfolio related enforcement activities which are impacted by the portfolio intake challenges discussed above could harm our operating results and our financial position. Investments in Patent Portfolios With respect to our licensing, enforcement and overall business, neither we nor our operating subsidiaries invent new technologies or products; rather, we depend upon the identification and investment in patents, inventions and companies that own IP through our relationships with inventors, universities, research institutions, technology companies and others. If our operating subsidiaries are unable to maintain those relationships and identify and grow new relationships, then we may not be able to identify new technology-based patent opportunities for sustainable revenue and /or revenue growth. Our current or future relationships may not provide the volume or quality of technologies necessary to sustain our licensing, enforcement and overall business. In some cases, universities and other technology sources compete against us as they seek to develop and commercialize technologies. Universities may receive financing for basic research in exchange for the exclusive right to commercialize resulting inventions. These and other strategies employed by potential partners may reduce the number of technology sources and potential clients to whom we can market our solutions. If we are unable to maintain current relationships and sources of technology or to secure new relationships and sources of technology, such inability may have a material adverse effect on our revenues, operating results, financial condition and ability to maintain our licensing and enforcement business. 33 Patent Portfolio Intake One of the significant challenges in our industry continues to be quality patent intake due to the challenges and complexity associated with the current patent environment. During the nine months ended September 30, 2021, we acquired one new patent portfolio consisting of Wi-Fi 6 standard essential patents. The patents and patent rights acquired during the nine months ended September 30, 2021 have estimated economic useful lives of approximately five years. In fiscal year 2020, we acquired five patent portfolios. Starboard Securities In 2019, as part of its strategy to grow, the Company began evaluating a wide range of strategic opportunities that culminated in the strategic investment in the Company by certain funds and accounts, or the Buyers, affiliated with, or managed by, Starboard Value LP, or Starboard. On November 18, 2019, the Company entered into a Securities Purchase Agreement with Starboard and the Buyers, or the Securities Purchase Agreement, pursuant to which the Buyers purchased (i) 350,000 shares of the Company’s newly designated Series A Convertible Preferred Stock, or Series A Preferred Stock, at an aggregate purchase price of $35.0 million, and warrants to purchase up to 5 million shares of the Company’s common stock, or Series A Warrants. The Securities Purchase Agreements also established the terms of certain senior secured notes, or Notes, and additional warrants, or the Series B Warrants, which may be issued to the Buyers in the future. Refer to Notes 2 and 6 to the consolidated financial statements elsewhere herein for additional information related to the Series A Preferred Stock, Series A Warrants and Series B Warrants. In connection with the Buyer’s investment, Starboard was granted certain corporate governance rights, including the right to appoint Jonathan Sagal, Managing Director of Starboard, as a director of the Company and recommend two additional directors for appointment to our Board of Directors. The investment by the Buyers is referred to herein as the “Starboard Investment,” and the Series A Preferred Stock, Series A Warrants and Series B Warrants are referred to herein as, collectively, the “Starboard Securities.” On February 14, 2020, the Company’s stockholders approved, for purposes of Nasdaq Rules 5635(b) and 5635(d), as applicable, (i) the voting of the Series A Preferred Stock on an as-converted basis and (ii) the issuance of the maximum number of shares of common stock issuable in connection with the potential future (A) conversion of the Series A Preferred Stock and (B) exercise of the Series A and Series B Warrants, in each case, without giving effect to the exchange cap set forth in the Series A Preferred Stock Certificate of Designations and in the Series A Warrants, issued pursuant to the Securities Purchase Agreement dated November 18, 2019. Refer to Note 6 to the consolidated financial statements elsewhere herein for additional information. The Company’s stockholders also approved an amendment to the Company’s Amended and Restated Certificate of Incorporation to increase the total number of authorized shares of common stock by 200 million shares, from 100 million shares to 300 million shares. On February 25, 2020, pursuant to the terms of the Securities Purchase Agreement with Starboard and the Buyers, the Company issued Series B Warrants to purchase up to 100 million shares of the Company’s common stock at an exercise price of either (i) $5.25 per share, if exercising by cash payment, or (ii) $3.65 per share, if exercising by cancellation of a portion of Notes. The Company issued the Series B Warrants for an aggregate purchase price of $4.6 million. Refer to Note 6 to the consolidated financial statements elsewhere herein for additional information. Pursuant to the terms of the Securities Purchase Agreement with Starboard and the Buyers, on June 4, 2020, the Company issued $115.0 million in Notes to the Buyers. Also on June 4, 2020, in connection with the issuance of the Notes, the Company entered into a Supplemental Agreement with Starboard, or the Supplemental Agreement, through which, the Company agreed to redeem $80.0 million aggregate principal amount of the Notes by September 30, 2020, and $35.0 million aggregate principal amount of the Notes by December 31, 2020, resulting in the total principal outstanding being paid by December 31, 2020. Per the Supplemental Agreement, interest is payable semiannually at a rate of 6.00% per annum, and in an event of default, the interest rate is increased to 10.00% per annum. The Notes outlined certain financial and non-financial covenants. Additionally, all or any portion of the principal amount outstanding under the Notes may, at the election of the holders, be surrendered to the Company for cancellation in payment of the exercise price upon the exercise of the Series B Warrants. 34 On June 30, 2020, the Company entered into an Exchange Agreement, or the Exchange Agreement, with Merton Acquisition HoldCo LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company, or Merton, and Starboard, on behalf of itself and on behalf of the Buyers, including the holders of the Notes. Pursuant to the Exchange Agreement, the holders of the Notes exchanged the entire outstanding principal amount of the Notes for new senior notes, or the New Notes, issued by Merton and having an aggregate outstanding original principal amount of $115.0 million. The New Notes bear interest at a rate of 6.00% per annum and had a maturity date of December 31, 2020. The New Notes are fully guaranteed by the Company and are secured by an all-assets pledge of the Company and Merton and non-recourse equity pledges of each of the Company’s material subsidiaries. Pursuant to the Exchange Agreement, the New Notes (i) are deemed to be “Notes” for purposes of the Securities Purchase Agreement, (ii) are deemed to be “June 2020 Approved Investment Notes” for purposes of the Supplemental Agreement, and with the Company agreeing to redeem $80.0 million principal amount of the New Notes by September 30, 2020 and $35.0 million principal amount of the New Notes by December 31, 2020, and (iii) are deemed to be “Notes” for the purposes of the Series B Warrants, and therefore may be tendered pursuant to a Note Cancellation under the Series B Warrants on the terms set forth in the Series B Warrants and the New Notes. Delivery of notes in the form of the New Notes will satisfy the delivery of Exchange Notes pursuant to Section 16(i) of the Certificate of Designations of the Company’s Series A Convertible Preferred Stock, par value $0.001 per share. The New Notes will not be deemed to be “Notes” for the purposes of the Registration Rights Agreement, dated as of November 18, 2019, by and between the Company, Starboard and the Buyers. On January 29, 2021, the Company redeemed $50.0 million of the New Notes and on March 31, 2021, the Company reissued $50.0 million of the New Notes. On June 30, 2021, the Company issued $30.0 million in additional New Notes (the “June 2021 Merton Notes”) and amended the maturity date of the New Notes to October 15, 2021. On September 30, 2021, the Company issued $35.0 million in additional New Notes (the “September 2021 Merton Notes”) and amended the maturity date of the New Notes to December 1, 2021. The June and September 2021 Merton Notes cannot be used to exercise Series B Warrants issued to Starboard Value. The total principal amount outstanding of New Notes as of September 30, 2021 and December 31, 2020 was $180.0 million and $115.0 million, respectively. Refer to Note 6 to the consolidated financial statements elsewhere herein for additional information. Equity Securities Portfolio Investment On April 3, 2020, the Company entered into an Option Agreement with Seller to purchase equity securities in the Life Sciences Portfolio, for an aggregate purchase price of £223.9 million, approximately $277.5 million at the exchange rate on April 3, 2020. On June 4, 2020, the Company executed the Transaction Agreement between Link Fund Solutions Limited, or Link, Seller, and the Company. Pursuant to the Transaction Agreement, the Company will purchase from Seller and Seller will transfer to the Company the specified equity securities of all companies in the Life Sciences Portfolio at set prices at various future dates. In accordance with the Transaction Agreement, the Company transferred the total purchase price of £223.9 million into an escrow account. Upon the transfer of equity securities in the Life Sciences Portfolio to the Company, the associated funds were released from the escrow account to Seller based on the consideration amount assigned to the equity securities for such Life Sciences Portfolio company in the Transaction Agreement. As of December 31, 2020, all of the equity securities in the Life Sciences Portfolio were transferred to the Company pursuant to the Transaction Agreement. Refer to Note 3 to the consolidated financial statements elsewhere herein for additional information. Operating Activities Our revenues historically have fluctuated quarterly, and can vary significantly, based on a number of factors including the following: · the dollar amount of agreements executed each period, which can be driven by the nature and characteristics of the technology or technologies being licensed and the magnitude of infringement associated with a specific licensee; · the specific terms and conditions of agreements executed each period including the nature and characteristics of rights granted, and the periods of infringement or term of use contemplated by the respective payments; · fluctuations in the total number of agreements executed each period; 35 · the number of, timing, results and uncertainties associated with patent licensing negotiations, mediations, patent infringement actions, trial dates and other enforcement proceedings relating to our patent licensing and enforcement programs; · the relative maturity of licensing programs during the applicable periods; · other external factors, including the periodic status or results of ongoing negotiations, the status or results of ongoing litigations and appeals, actual or perceived shifts in the regulatory environment, impact of unrelated patent related judicial proceedings and other macroeconomic factors; · the willingness of prospective licensees to settle significant patent infringement cases and pay reasonable license fees for the use of our patented technology, as such infringement cases approached a court determined trial date; and · fluctuations in overall patent portfolio related enforcement activities which are impacted by the portfolio intake challenges discussed above. Our management does not attempt to manage for smooth sequential periodic growth in revenues from period to period, and therefore, periodic results can be uneven. Unlike most operating businesses and industries, licensing revenues not generated in a current period are not necessarily foregone but, depending on whether negotiations, litigation or both continue into subsequent periods, and depending on a number of other factors, such potential revenues may be pushed into subsequent fiscal periods. Revenues for the nine months ended September 30, 2021 and 2020 included fees from the following technology licensing and enforcement programs: • Bone Wedge technology (1)(2) • Wireless Mesh Networking technology (1) • Flash Memory technology (1) • MIPI DSI technology (2) • Internet search, advertising and cloud computing technology (1)(2) • Semiconductor and Memory-Related technology (2) • Speech codecs used in wireless and wireline systems technology (1)(2) • Super Resolutions Microscopy technology (2) • Wireless Infrastructure and User Equipment technology (1) • Video Conferencing technology (2) • Networking and Security technology (1) • Internet radio ad placement (2) __________________________ (1) Licensing and enforcement program generating revenue in 2021. (2) Licensing and enforcement program generating revenue in 2020. Consolidated Results of Operations Summary for the Three and Nine Months Ended September 30, 2021 and 2020 Three Months Ended Nine Months Ended September 30, September 30, 2021 2020 $ Change % Change 2021 2020 $ Change % Change (In thousands, except percentage change values) Revenues $ 1,582 $ 19,466 $ (17,884 ) (92% ) $ 24,785 $ 25,399 $ (614 ) (2% ) Operating costs and expenses 14,304 22,248 (7,944 ) (36% ) 41,539 38,498 3,041 8% Operating loss (12,722 ) (2,782 ) (9,940 ) 357% (16,754 ) (13,099 ) (3,655 ) 28% Other income (expense) 102,337 41,213 61,124 148% (37,316 ) 45,047 (82,363 ) (183% ) Income (loss) before income taxes 89,615 38,431 51,184 133% (54,070 ) 31,948 (86,018 ) (269% ) Income tax (expense) benefit (11 ) (83 ) 72 (87% ) (531 ) 1,257 (1,788 ) (142% ) Net income (loss) attributable to Acacia Research Corporation 89,604 38,348 51,256 134% (55,507 ) 33,205 (88,712 ) (267% ) 36 Results of Operations – Three months ended September 30, 2021 compared with the three months ended September 30, 2020 Revenues decreased $17.9 million to $1.6 million for the three months ended September 30, 2021, as compared to $19.5 million in the comparable prior year quarter, primarily due to a decrease in revenues from licensing and enforcement programs during the quarter. New agreements executed were flat quarter over quarter. Refer to “ Investments in Patent Portfolios” above for additional information regarding the impact of portfolio acquisition trends on current and future licensing and enforcement related revenues. Income before income taxes was $89.6 million for the three months ended September 30, 2021, as compared to $38.4 million for the three months ended September 30, 2020. The net change was comprised of the change in revenues described above and other changes in operating expenses and other income (expense) as follows: · Paid-up revenue decreased $18.3 million primarily due to a decrease in average revenue per agreement executed during the quarter, offset by an increase of $401,000 in recurring revenue that provides for quarterly sales-based license fees. Refer to Note 2 to the consolidated financial statements elsewhere herein for additional information regarding certain sales-based revenue contracts that provide for the payment of quarterly license fees based on quarterly sales of applicable product units by licensees. · Inventor royalties and contingent legal fees, on a combined basis, decreased $11.8 million, from $12.4 million to $565,000, primarily due to the net decrease in revenues described above. · Litigation and licensing expenses - patents decreased $219,000, from $1.0 million to $782,000, primarily due to a net decrease in litigation support and third-party technical consulting expenses associated with ongoing litigation. · Amortization of patents expense increased $1.4 million, from $1.2 million to $2.6 million, due to an increase in scheduled amortization resulting from the new portfolios acquired in 2021. · General and administrative expenses, excluding non-cash stock compensation, increased $2.8 million, from $7.2 million to $10.0 million, primarily due to higher corporate, general and administrative costs related to legal and other business development expenses, and to a lesser extent from non-recurring employee severance costs, personnel cost and board fees. · Net non-cash stock compensation expense decreased $188,000, from $488,000 to $300,000, primarily due to forfeitures in the third quarter partially offset by higher expense from stock grants issued to employees and the Board of Directors in 2021. · There was no unrealized gain or loss on our fair value investment for the three months ended September 30, 2021, as compared to an unrealized loss of $3.1 million for the three months ended September 30, 2020. There was no realized gain or loss on our fair value investment for the three months ended September 30, 2021 and 2020. Refer to Note 4 to the consolidated financial statements elsewhere herein for additional information. · Unrealized gain from the fair value measurements of the Series A and Series B warrants and the embedded derivative decreased to $619,000 for the three months ended September 30, 2021, as compared to an unrealized gain of $20.7 million for the three months ended September 30, 2020. Refer to Note 6 to the consolidated financial statements elsewhere herein for additional information regarding the Starboard Securities. · Unrealized gain from equity securities increased to $66.5 million for the three months ended September 30, 2021, as compared to an unrealized gain of $20.5 million for the three months ended September 30, 2020. The current period unrealized gain primarily relates to one Life Sciences Portfolio company’s valuation increase in connection with its initial public offering. Refer to Notes 2 and 3 to the consolidated financial statements elsewhere herein for additional information regarding our investment in equity securities. 37 · Realized gain from the sale of our equity securities increased to $37.7 million for the three months ended September 30, 2021, as compared to a gain of $2.7 million for the three months ended September 30, 2020. The current period realized gain primarily relates to the partial sale of two Life Sciences Portfolio securities. Refer to Notes 2 and 3 to the consolidated financial statements elsewhere herein for additional information regarding our investment in equity securities. · We incurred losses on foreign currency exchange of $17,000 and $48,000 during the three months ended September 30, 2021 and 2020, respectively. · We incurred interest expense of $2.5 million during the three months ended September 30, 2021 from the Notes issued in 2020 and 2021, as compared to $2.4 million during the three months ended September 30, 2020. Refer to Note 6 to the consolidated financial statements elsewhere herein for additional information regarding the Starboard Senior Secured Notes. · Interest income and other increased to $76,000 for the three months ended September 30, 2021 from $10,000 for the three months ended September 30, 2020. Refer to Note 2 to the consolidated financial statements elsewhere herein for additional information regarding our cash and cash equivalents and investments in equity securities. Results of Operations – Nine months ended September 30, 2021 compared with the nine months ended September 30, 2020 Revenues decreased $614,000 to $24.8 million for the nine months ended September 30, 2021, as compared to $25.4 million in the comparable prior year, primarily due to a decrease in revenues from licensing and enforcement programs generating revenue during the period. Refer to “ Investments in Patent Portfolios” above for additional information regarding the impact of portfolio acquisition trends on current and future licensing and enforcement related revenues. Loss before income taxes was $54.1 million for the nine months ended September 30, 2021, as compared to income before income taxes of $31.9 million for the nine months ended September 30, 2020. The net change was comprised of the change in revenues described above and other changes in operating expenses and other income (expense) as follows: · Paid-up revenue decreased $1.4 million primarily due to a decrease in average revenue per agreement executed during the period, offset by an increase of $753,000 in recurring revenue that provides for quarterly sales-based license fees. Refer to Note 2 to the consolidated financial statements elsewhere herein for additional information regarding certain sales-based revenue contracts that provide for the payment of quarterly license fees based on quarterly sales of applicable product units by licensees. · Inventor royalties and contingent legal fees, on a combined basis, decreased $7.1 million, from $13.7 million to $6.6 million, primarily due to a higher percentage of revenues generated during the nine months ended September 30, 2021 having no inventor royalty obligations. · Litigation and licensing expenses - patents increased $1.4 million, from $3.5 million to $4.9 million, primarily due to a net increase in litigation support and third-party technical consulting expenses associated with ongoing litigation. · Amortization of patents expense increased $3.6 million, from $3.5 million to $7.1 million, due to an increase in scheduled amortization resulting from the new portfolios acquired in 2020 and 2021. · Other patent portfolio income for the nine months ended September 30, 2020 was $308,000 due to the reversal of previously recorded expenses for settlement and contingency accruals. · General and administrative expenses, excluding non-cash stock compensation, increased $4.9 million, from $16.8 million to $21.7 million, primarily due to higher corporate, general and administrative costs related to legal and other business development expenses, personnel cost and board fees, and to a lesser extent from increased variable performance-based compensation costs. · Net non-cash stock compensation expense increased $36,000, from $1.2 million to $1.3 million, primarily due to stock grants issued to employees and the Board of Directors in 2021, partially offset by forfeitures for terminated employees. 38 · We recognized an unrealized loss of $2.8 million on our fair value investment for the nine months ended September 30, 2021, as compared to an unrealized gain of $3.7 million for the nine months ended September 30, 2020. There was a realized gain of $3.6 million on our fair value investment for the nine months ended September 30, 2021, as compared to a realized loss of $2.8 million for the nine months ended September 30, 2020. Refer to Note 4 to the consolidated financial statements elsewhere herein for additional information. · We incurred an unrealized net loss of $203.9 million from the fair value measurements of the Series A and Series B warrants and the embedded derivative for the nine months ended September 30, 2021, as compared to an unrealized loss of $46.6 million for the nine months ended September 30, 2020. Refer to Note 6 to the consolidated financial statements elsewhere herein for additional information regarding the Starboard Securities. · Unrealized gain from equity securities increased to $115.5 million for the nine months ended September 30, 2021, as compared to an unrealized gain of $99.4 million for the nine months ended September 30, 2020. The current period unrealized gain primarily relates to one Life Sciences Portfolio company’s valuation increase in connection with its initial public offering. Refer to Notes 2 and 3 to the consolidated financial statements elsewhere herein for additional information regarding our investment equity securities. · Realized gain from the sale of our equity securities increased to $53.1 million for the nine months ended September 30, 2021, as compared to a loss of $4.3 million for the nine months ended September 30, 2020. The current period realized gain primarily relates to the sale of three Life Sciences Portfolio securities. Refer to Notes 2 and 3 to the consolidated financial statements elsewhere herein for additional information regarding our investment in equity securities. · Earnings on equity investment in joint venture was $2.7 million for the nine months ended September 30, 2021. Refer to Note 3 to the consolidated financial statements elsewhere herein for additional information regarding our equity method investment. · We incurred losses on foreign currency exchange of $193,000 and $4.9 million during the nine months ended September 30, 2021 and 2020, respectively. · We incurred interest expense of $5.6 million during the nine months ended September 30, 2021 from the Notes issued in 2020 and 2021, as compared to $3.2 million during the nine months ended September 30, 2020. Refer to Note 6 to the consolidated financial statements elsewhere herein for additional information regarding the Starboard Senior Secured Notes. · Interest income and other decreased to $135,000 for the nine months ended September 30, 2021 from $811,000 for the nine months ended September 30, 2020, mainly due to a decrease in interest income from our former investment in debt securities, which was sold in 2020. Refer to Note 2 to the consolidated financial statements elsewhere herein for additional information regarding our cash and cash equivalents and investments in equity securities. Revenues Revenue for the periods presented included the following: Three Months Ended Nine Months Ended September 30, September 30, 2021 2020 $ Change % Change 2021 2020 $ Change % Change Revenues (in thousands, except percentage change values) $ 1,582 $ 19,466 $ (17,884 ) (92% ) $ 24,785 $ 25,399 $ (614 ) (2% ) New agreements executed 3 3 – 0% 16 11 5 45% Licensing and enforcement programs generating revenues 3 5 (2 ) (40% ) 7 8 (1 ) (13% ) Licensing and enforcement programs with initial revenues – 1 (1 ) (100% ) 3 2 1 50% New patent portfolios – – – 0% 1 4 (3 ) (75% ) 39 For the periods presented herein, the majority of the revenue agreements executed provided for the payment of one-time, paid-up license fees in consideration for the grant of certain IP Rights for patented technology rights owned by our operating subsidiaries. These rights were primarily granted on a perpetual basis, extending until the expiration of the underlying patents. Refer to Note 2 to the consolidated financial statements elsewhere herein for additional information regarding our revenue arrangements and related concentrations for the periods presented herein. Refer to “ Investments in Patent Portfolios ” above for information regarding the impact of portfolio acquisition trends on current and future licensing and enforcement related revenues. Cost of Revenues Inventor Royalties and Contingent Legal Fees Expense Three Months Ended Nine Months Ended September 30, September 30, 2021 2020 $ Change % Change 2021 2020 $ Change % Change (In thousands, except percentage change values) Inventor royalties $ 280 $ 5,772 $ (5,492 ) (95% ) $ 823 $ 6,843 $ (6,020 ) (88% ) Contingent legal fees 285 6,609 (6,324 ) (96% ) 5,735 6,855 (1,120 ) (16% ) Total $ 565 $ 12,381 $ (11,816 ) (95% ) $ 6,558 $ 13,698 $ (7,140 ) (52% ) For the three months ended September 30, 20201, inventor royalties and contingent legal fees, on a combined basis, decreased $11.8 million, or 95%. For the nine months ended September 30, 20201, inventor royalties and contingent legal fees, on a combined basis, decreased $7.1 million, or 52%. Inventor royalties and contingent legal fee expenses fluctuate from period to period based on the amount of revenues recognized each period, the terms and conditions of agreements executed each period and the mix of specific patent portfolios, with varying economic terms and obligations, generating revenues each period. Litigation and Licensing Expenses - Patents and Amortization of Patents Three Months Ended Nine Months Ended September 30, September 30, 2021 2020 $ Change % Change 2021 2020 $ Change % Change (In thousands, except percentage change values) Litigation and licensing expenses - patents $ 782 $ 1,001 $ (219 ) (22% ) $ 4,881 $ 3,497 $ 1,384 40% Amortization of patents 2,612 1,174 1,438 122% 7,086 3,522 3,564 101% Total $ 3,394 $ 2,175 $ 1,219 56% $ 11,967 $ 7,019 $ 4,948 70% For the three months ended September 30, 2021, litigation and licensing expenses-patents decreased $219,000, or 22%. For the nine months ended September 30, 2021, litigation and licensing expenses-patents increased $1.4 million, or 40%. The changes were due to fluctuations in litigation support and third-party technical consulting expenses during the periods presented. For the three months ended September 30, 2021, amortization expense increased $1.4 million, or 122%. For the nine months ended September 30, 2021, amortization expense increased $3.6 million, or 101%. These increases were due to new patents acquired in 2020 and 2021. 40 Operating Expenses General and Administrative Expenses Three Months Ended Nine Months Ended September 30, September 30, 2021 2020 $ Change % Change 2021 2020 $ Change % Change (In thousands, except percentage change values) General and administrative expenses $ 10,045 $ 7,204 $ 2,841 39% $ 21,735 $ 16,846 $ 4,889 29% Non-cash stock compensation expense 300 488 (188 ) (39% ) 1,279 1,243 36 3% Total general and administrative expenses $ 10,345 $ 7,692 $ 2,653 34% $ 23,014 $ 18,089 $ 4,925 27% A summary of the main drivers of the change in general and administrative expenses for the periods presented, is as follows: Three Months Ended Nine Months Ended September 30, September 30, 2021 vs. 2020 2021 vs. 2020 (In thousands) Personnel costs and board fees $ 415 $ 1,563 Variable performance-based compensation costs (172 ) 268 Corporate, general and administrative costs 2,111 2,973 Non-cash stock compensation expense (188 ) 36 Non-recurring employee severance costs 487 85 Total change in general and administrative expenses $ 2,653 $ 4,925 The increases in personnel cost and board fees for the periods presented were primarily due to an increase in headcount and related costs. The changes in variable performance-based compensation costs were primarily due to fluctuations in performance-based compensation accruals. The increases in corporate, general and administrative costs were primarily due to higher legal and business development related expenses. The decrease in non-cash stock compensation expense for the three months ended September 30, 2021, was primarily due to forfeitures in the third quarter partially offset by higher expense from stock grants issued to employees and the Board of Directors in 2021. Non-recurring employee severance costs fluctuate based on the severance arrangements of terminated employees. Other Income (Expense) Our equity investments in Veritone, the Life Sciences Portfolio and other equity securities are recorded at fair value at each balance sheet date. Our quarterly results included no unrealized or realized gain or loss on our fair value investment in Veritone for the three months ended September 30, 2021, as compared to an unrealized loss of $3.1 million for the three months ended September 30, 2020. Our year-to-date results included an unrealized loss of $2.8 million on our fair value investment in Veritone for the nine months ended September 30, 2021, as compared to an unrealized gain of $3.7 million for the nine months ended September 30, 2020. There was a realized gain of $3.6 million on our equity investment in Veritone for the nine months ended September 30, 2021, as compared to a realized loss of $2.8 million for the nine months ended September 30, 2020. Refer to Note 4 to the consolidated financial statements elsewhere herein for additional information regarding our investment in Veritone. 41 Our quarterly results included an unrealized gain from equity securities of $66.5 million for the three months ended September 30, 2021, as compared to an unrealized gain of $20.5 million for the three months ended September 30, 2020. Realized gain from the sale of our equity securities increased to $37.7 million for the three months ended September 30, 2021, as compared to a gain of $2.7 million for the three months ended September 30, 2020. Our year-to-date results included an unrealized gain from equity securities of $115.5 million for the nine months ended September 30, 2021, as compared to an unrealized gain of $99.4 million for the nine months ended September 30, 2020. Realized gain from the sale of our equity securities increased to $53.1 million for the nine months ended September 30, 2021, as compared to a loss of $4.3 million for the nine months ended September 30, 2020. Refer to Notes 2 and 3 to the consolidated financial statements elsewhere herein for additional information regarding our investment in the Life Sciences Portfolio and other equity securities. Income Taxes Three Months Ended Nine Months Ended September 30, September 30, 2021 2020 $ Change % Change 2021 2020 $ Change % Change (In thousands, except percentage values) Income tax (expense) benefit $ (11 ) $ (83 ) $ 72 (87% ) $ (531 ) $ 1,257 $ (1,788 ) (142% ) Effective tax rate 0% 0% – 0% (1% ) (4% ) – 3% The provision for income taxes is determined using an effective tax rate. For the three and nine months ended September 30, 2021, the Company’s estimated annual effective tax rates were lower than the U.S. federal statutory rate primarily due to the change in valuation allowance, as well as state income taxes. The effective tax rate may be subject to fluctuations during the year as new information is obtained which may affect the assumptions used to estimate the effective tax rate, including factors such as expected utilization of net operating loss carryforwards, changes in or the interpretation of tax laws in jurisdictions where the Company conducts business, the Company’s expansion into new states or foreign countries, and the amount of valuation allowances against deferred tax assets. For the nine months ended September 30, 2020, the Company recorded a benefit for income taxes of which primarily reflects the impact of state taxes and foreign tax withholding or refund incurred on revenue agreements executed with third-party licensees domiciled in foreign jurisdictions. The Company recognizes deferred tax assets and liabilities for temporary differences between the financial reporting basis and the tax basis of its assets and liabilities along with net operating loss and tax credit carryforwards. The Company records a valuation allowance against its deferred tax assets to reduce the net carrying value to an amount it believes is more likely than not to be realized. When the Company establishes or reduces the valuation allowance against its deferred tax assets, the provision for income taxes will increase or decrease, respectively, in the period such determination is made. For the nine months ended September 30, 2021, the Company has recorded a full valuation allowance against its deferred tax assets as they are not expected to be realized. On March 27, 2020, the United States enacted the CARES Act which provides certain income tax benefits including the ability to carryback federal NOLs generated in 2018 through 2020 for an extended five-year period and increased the limitation for the deduction of interest expense from 30 percent to 50 percent of modified taxable income. The CARES Act also provides other economic benefits such as allowing employers to defer payment of the employer’s portion of payroll taxes for 2020 and a refundable employee retention credit of up to $5,000 per eligible employee wages. The Company did not realize benefits from the provisions of the CARES Act including the extended NOL carryback period, the payroll tax deferral, and the employee retention credit. On December 27, 2020, the United States enacted the Consolidated Appropriations Act which extended many of the benefits of the CARES Act that were scheduled to expire. The Company does not expect a material impact of Consolidated Appropriations Act on its consolidated financial statements and related disclosures. On March 11, 2021 the United States enacted the American Rescue Plan Act of 2021. These Acts includes various income and payroll tax measures. The Company does not expect a material impact of the American Rescue Plan on its consolidated financial statements and related disclosures. On June 29, 2020, the state of California passed Assembly Bill 85 which suspends the California net operating loss deduction for the 2020-2022 tax years and the R&D credit usage for the same period (for credit usages in excess of $5.0 million). The Company anticipates a California income tax liability for 2021, however it is not expected to materially impact the consolidated financial statements. 42 Liquidity and Capital Resources General Our primary sources of liquidity are cash and cash equivalents on hand generated from our operating activities, and as deemed appropriate by management from our Senior Secured Notes (discussed below under the caption “Starboard Investment and Senior Secured Notes”). Our management believes that our cash and cash equivalent balances, anticipated cash flows from operations and proceeds from our Senior Secured Notes will be sufficient to meet our cash requirements through at least twelve months from the date of this report and for the foreseeable future. We may, however, encounter unforeseen difficulties that may deplete our capital resources more rapidly than anticipated, including those set forth under Part II, Item 1A, “Risk Factors”. Any efforts to seek additional funding could be made through issuances of equity or debt, or other external financing. However, additional funding may not be available to us on favorable terms, or at all. The capital and credit markets have experienced extreme volatility and disruption in recent years, and the volatility and impact of the disruption may continue. At times during this period, the volatility and disruption has reached unprecedented levels. In several cases, the markets have exerted downward pressure on stock prices and credit capacity for certain issuers, and the commercial paper markets may not be a reliable source of short-term financing for us. If we fail to obtain additional financing when needed, we may not be able to execute our business plans and our business, conducted by our operating subsidiaries, may suffer. Certain of our operating subsidiaries are often required to engage in litigation to enforce their patents and patent rights. In connection with any of our operating subsidiaries’ patent enforcement actions, it is possible that a defendant may request and/or a court may rule that an operating subsidiary has violated statutory authority, regulatory authority, federal rules, local court rules, or governing standards relating to the substantive or procedural aspects of such enforcement actions. In such event, a court may issue monetary sanctions against us or our operating subsidiaries or award attorney’s fees and/or expenses to a defendant(s), which could be material. Cash, Cash Equivalents and Investments Our consolidated cash, cash equivalents, equity securities at fair value, and long-term restricted cash totaled $640.5 million at September 30, 2021, compared to $309.6 million at December 31, 2020. The net change in cash, cash equivalents and restricted cash for the periods presented was comprised of the following: Nine Months Ended September 30, 2021 2020 (In thousands) Net cash (used in) provided by: Operating activities $ (7,602 ) $ 5,549 Investing activities (3,219 ) (9,815 ) Financing activities 64,417 109,471 Increase in cash and cash equivalents and restricted cash $ 53,596 $ 105,205 Cash Flows from Operating Activities Cash receipts from licensees for the nine months ended September 30, 2021 decreased to $24.9 million, as compared to $25.6 million in the comparable 2020 period, mainly due to the timing on cash collected from accounts receivables in prior year. 43 Cash outflows from operations for the nine months ended September 30, 2021 increased to $7.6 million, as compared to a $5.5 million cash inflow in the comparable 2020 period, primarily due to our higher net loss (discussed above under the caption “Results of Operations – Nine months ended September 30, 2021 compared with the nine months ended September 30, 2020”) and a gain on sale of equity securities, partially offset by the net changes in fair value of Series A and B warrants, embedded derivatives and equity securities and to a lesser extent the changes in working capital cash flows. Refer to “Working Capital” below for additional information. Cash Flows from Investing Activities Cash flows from investing activities and related changes were comprised of the following for the periods presented: Nine Months Ended September 30, 2021 2020 (In thousands) Patent acquisition $ (13,000 ) $ (13,780 ) Sale of investment at fair value 3,591 1,460 Purchases of equity securities (57,978 ) (33,800 ) Maturities and sales of equity securities 64,235 316,746 Purchases of prepaid investment – (276,275 ) Equity securities derivative and forward contract acquisition cost – (3,989 ) Purchases of property and equipment (67 ) (177 ) Net cash used in investing activities $ (3,219 ) $ (9,815 ) Cash Flows from Financing Activities Cash flows from financing activities and related changes were comprised of the following for the periods presented: Nine Months Ended September 30, 2021 2020 (In thousands) Repurchase of common stock $ – $ (3,998 ) Issuance of Senior Secured Notes, net of lender fee 65,000 110,437 Senior Secured Notes issuance costs paid to other parties – (496 ) Dividend on Series A Redeemable Convertible Preferred Stock (785 ) (1,120 ) Issuance of Series B warrants – 4,600 Proceeds from exercise of stock options 202 48 Paydown of Senior Secured Notes - short-term (50,000 ) – Reissuance of Senior Secured Notes - short-term 50,000 – Net cash provided by financing activities $ 64,417 $ 109,471 Starboard Investment and Senior Secured Notes On November 18, 2019, the Company entered into the Securities Purchase Agreement with Starboard and the Buyers pursuant to which the Buyers purchased (i) 350,000 shares of Series A Preferred Stock at an aggregate purchase price of $35.0 million, and Series A Warrants to purchase up to 5 million shares of the Company’s common stock. 44 On February 25, 2020, pursuant to the terms of the Securities Purchase Agreement with Starboard and the Buyers, the Company issued Series B Warrants to purchase up to 100 million shares of the Company’s common stock at an exercise price of either (i) $5.25 per share, if exercising by cash payment, or (ii) $3.65 per share, if exercising by cancellation of a portion of Notes. The Company issued the Series B Warrants for an aggregate purchase price of $4.6 million. On June 4, 2020, pursuant to the Securities Purchase Agreement dated November 2019, the Company issued $115.0 million in Notes to the Buyer. Per the Supplemental Agreement, interest is payable semiannually at a rate of 6.00% per annum, and in an event of default, the interest rate is increased to 10.00% per annum. In connection with the issuance of the Notes, the terms of certain of the Series B Warrants were amended to permit the payment of the lower exercise price of $3.65 through the payment of cash, rather than only through the cancellation of Notes outstanding, at any time until the expiration date of November 15, 2027. 31,506,849 of the Series B Warrants are subject to this adjustment with the remaining balance of 68,493,151 Series B Warrants continuing under their original terms. On June 30, 2020, the Company entered into the Exchange Agreement with Merton and Starboard, on behalf of itself and on behalf of certain funds and accounts under its management, including the holders of the Notes. Pursuant to the Exchange Agreement, the holders of the Notes exchanged the entire outstanding principal amount for New Notes issued by Merton having an aggregate outstanding original principal amount of $115.0 million. On January 29, 2021, the Company redeemed $50.0 million of the New Notes and on March 31, 2021, the Company reissued $50.0 million of the New Notes. On June 30, 2021, the Company issued $30.0 million in additional New Notes (the “June 2021 Merton Notes”) and amended the maturity date of the New Notes to October 15, 2021. On September 30, 2021, the Company issued $35.0 million in additional New Notes (the “September 2021 Merton Notes”) and amended the maturity date of the New Notes to December 1, 2021. The June and September 2021 Merton Notes cannot be used to exercise Series B Warrants issued to Starboard Value. The total principal amount outstanding of New Notes as of September 30, 2021 and December 31, 2020 was $180.0 million and $115.0 million, respectively. Refer to Notes 2 and 6 to the consolidated financial statements elsewhere herein for additional information related to the Starboard Securities and Senior Secured Notes. Working Capital Working capital at September 30, 2021 increased to $465.0 million, as compared to $332.9 million at December 31, 2020. Accounts receivable from licensees decreased to $412,000 at September 30, 2021, compared to $506,000 at December 31, 2020. Accounts payable, accrued expenses and accrued compensation increased to $11.8 million at September 30, 2021, from $7.0 million at December 31, 2020. Royalties and contingent legal fees payable decreased to $1.8 million at September 30, 2021, from $2.2 million at December 31, 2020. The royalties and contingent legal fees payable are generally scheduled to be paid in the subsequent quarter upon our receipt of the related fee payments from licensees, in accordance with the underlying contractual arrangements. Critical Accounting Policies and Estimates Our unaudited interim condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America. Preparation of these condensed consolidated statements requires management to make assumptions, judgments and estimates that can have a significant impact on amounts reported in these condensed consolidated 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. The Securities and Exchange Commission (“SEC”) has defined a company’s critical accounting policies as the ones that are most important to the portrayal of a company’s financial condition and results of operations, and which require a company to make its most difficult and subjective judgments. A summary of significant accounting policies and a description of accounting policies that are considered critical may be found in the audited consolidated financial statements and notes thereto and under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations - Critical Accounting Policies” included in our Annual Report. In addition, as set forth in Note 2 (under the caption “Use of Estimates”) to the consolidated financial statements included in this report, certain accounting policies were identified during the current period, based on activities occurring during the current period, as critical and requiring significant judgments and estimates. 45 Recently Adopted Accounting Pronouncements Refer to Note 2 (under the caption “Recent Accounting Pronouncements”) to the consolidated financial statements included in this report for additional information. Off-Balance Sheet Arrangements As of September 30, 2021, we did not have any relationships with any unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or special purpose entities, which would have been established to facilitate any off-balance sheet arrangements or for any other contractually specified purposes. Item 3. Quantitative and Qualitative Disclosures about Market Risk The primary objective of our short-term investment activities is to preserve principal while concurrently maximizing the income we receive from our equity securities at fair value without significantly increasing risk. Some of the securities that we invest in may be subject to interest rate risk and/or market risk. This means that a change in prevailing interest rates, with respect to interest rate risk, or a change in the value of the United States equity markets, with respect to market risk, may cause the principal amount or market value of the equity securities at fair value to fluctuate. For example, if we hold a security that was issued with a fixed interest rate at the then-prevailing rate and the prevailing interest rate later rises, the current value of the principal amount of our investment may decline. To minimize these risks in the future, we intend to maintain our portfolio of cash equivalents and equity securities at fair value in a variety of securities, including commercial paper, money market funds, government and non-government debt securities, certificates of deposit and equity securities. In general, money market funds are not subject to market risk because the interest paid on such funds fluctuates with the prevailing interest rate. Accordingly, a 100 basis point increase in interest rates or a 10% decline in the value of the United States equity markets would not be expected to have a material impact on the value of such money market funds. Declines in interest rates over time will, however, reduce our interest income. During 2020, we sold all of our investment in debt securities, comprised of AAA rated money market funds that invested in first-tier only securities, which primarily included domestic commercial paper, securities issued or guaranteed by the U.S. government or its agencies, U.S. bank obligations and fully collateralized repurchase agreements, and direct investments in short-term, highly liquid, investment grade, U.S. government and corporate securities. Investment Risk We are exposed to investment risks related to changes in the underlying financial condition of certain of our equity investments in technology companies. The fair value of these investments can be significantly impacted by the risk of adverse changes in securities markets generally, as well as risks related to the performance of the companies whose securities we have invested in, risks associated with specific industries, and other factors. These investments are subject to significant fluctuations in fair value due to the volatility of the securities markets and of the underlying businesses. As of September 30, 2021 and December 31, 2020, the carrying value of our common stock and warrants in public and private companies was $424.8 million and $285.8 million, respectively. Foreign Currency Exchange Risk Although we do not have any material foreign operations, we are also exposed to market risks related to fluctuations in foreign currency exchange rates between the U.S. dollar, and the British Pound and Euro currency exchange rates, primarily related to revenue agreements with licensees domiciled in foreign jurisdictions and certain equity security investments. A hypothetical 10% change in exchange rates related to our at risk foreign denominated equity securities would have approximately a $32.4 million effect on our financial position and results of operations. 46 Item 4. Controls and Procedures (i). Evaluation of Disclosure Controls and Procedures Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of our disclosure controls and procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of September 30, 2021, our disclosure controls and procedures were effective to ensure that the information required to be disclosed by us in the reports that we file or submit under the Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure, and that such information is recorded, processed, summarized and reported within the time periods prescribed by the SEC. (ii). Changes in Internal Control Over Financial Reporting There were no changes in our internal control over financial reporting that occurred during our last fiscal quarter (the quarter ended September 30, 2021) that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. (iii). Inherent Limitations on Effectiveness of Controls Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls or our internal control over financial reporting will prevent or detect all error and all fraud. A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met. The design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Further, because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud, if any, have been detected. The design of any system of controls is based in part on certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Projections of any evaluation of the effectiveness of controls to future periods are subject to risks. Over time, controls may become inadequate because of changes in conditions or deterioration in the degree of compliance with policies or procedures. 47 PART II--OTHER INFORMATION Item 1. Legal Proceedings In the ordinary course of business, we are the subject of, or party to, various pending or threatened legal actions, including various counterclaims in connection with our patent enforcement activities. We believe that any liability arising from these actions will not have a material adverse effect on our consolidated financial position, results of operations or cash flows. Our operating subsidiaries are often required to engage in litigation to enforce their patents and patent rights. Certain of our operating subsidiaries are parties to ongoing patent enforcement related litigation, alleging infringement by third-parties of certain of the patented technologies owned or controlled by our operating subsidiaries. In connection with any of our patent enforcement actions, it is possible that a defendant may claim and/or a court may rule that we have violated statutory authority, regulatory authority, federal rules, local court rules, or governing standards relating to the substantive or procedural aspects of such enforcement actions. In such event, a court may issue monetary sanctions against us or our operating subsidiaries or award attorney’s fees and/or expenses to a defendant(s), which could be material, and if required to be paid by us or our operating subsidiaries, could materially harm our operating results and our financial position. We spend a significant amount of our financial and management resources to pursue our current litigation matters. We believe that these litigation matters and others that we may in the future determine to pursue could continue for years and continue to consume significant financial and management resources. The counterparties to our litigation are sometimes large, well-financed companies with substantially greater resources than us. We cannot assure you that any of our current or future litigation matters will result in a favorable outcome for us. In addition, in part due to the appeals process and other legal processes, even if we obtain favorable interim rulings or verdicts in particular litigation matters, they may not be predictive of the ultimate resolution of the dispute. Also, we cannot assure you that we will not be exposed to claims or sanctions against us which may be costly or impossible for us to defend. Unfavorable or adverse outcomes may result in losses, exhaustion of financial resources or other adverse effects which could encumber our ability to effectively and efficiently monetize our assets. On September 6, 2019, Slingshot Technologies, LLC, or Slingshot, filed a lawsuit in Delaware Chancery Court against the Company and Acacia Research Group, LLC, or collectively, the Acacia Entities, Monarch Networking Solutions LLC (“Monarch”), Acacia board member Katharine Wolanyk, and Transpacific IP Group, Ltd., or Transpacific. Slingshot alleges that the Acacia Entities and Monarch misappropriated its confidential and proprietary information, purportedly furnished to the Acacia Entities and Monarch by Ms. Wolanyk, in acquiring a patent portfolio from Transpacific after Slingshot’s exclusive option to purchase the same patent portfolio from Transpacific had already expired. Slingshot seeks monetary damages, as well as equitable and injunctive relief related to its alleged right to own the portfolio. On March 15, 2021, the court issued orders granting Monarch’s motion to dismiss for lack of personal jurisdiction and Ms. Wolanyk’s motion to dismiss for lack of subject matter jurisdiction. The remaining parties then commenced discovery, and have since served initial written requests and responses, and notices of the depositions of the parties’ corporate designees. The Acacia Entities maintain that Slingshot’s allegations are baseless, that the Acacia Entities neither had access to nor used Slingshot’s information in acquiring the portfolio, that the Acacia Entities acquired the portfolio as a result of the independent efforts of its IP licensing group, and that Slingshot suffered no damages given its exclusive option to purchase the portfolio had already ended and it has proven itself incapable of closing on the portfolio purchase. During the three months ended September 30, 2021 and 2020, there were no operating expenses related to settlement and contingency accruals. During the nine months ended September 30, 2021, we incurred $338,000 in operating expenses for settlement and contingency accruals. During the nine months ended September 30, 2020, operating expenses included a net income for settlement offset by contingency accruals totaling $308,000, net of prior accruals. At September 30, 2021 and December 31, 2020, our contingency accrual balance was $587,000 and $1.3 million, respectively. 48 Item 1A. Risk Factors An investment in our common stock involves risks. Before making an investment decision, you should carefully consider all of the information in this Quarterly Report on Form 10-Q, including in the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Part I, Item 2, as well as our consolidated financial statements and the accompanying notes thereto. In addition, you should carefully consider the risks and uncertainties described below, and in the section entitled “Risk Factors” in Part I, Item 1A of our Annual Report, as well as in our other public filings with the SEC. If any of the identified risks are realized, our business, financial condition, operating results and prospects could be materially and adversely affected. In that case, the trading price of our common stock may decline, and you could lose all or part of your investment. In addition, other risks of which we are currently unaware, or which we do not currently view as material, could have a material adverse effect on our business, financial condition, operating results and prospects. Risks related to COVID-19 The COVID-19 pandemic could have a material adverse effect on our operations, the operations of our business partners, and the global economy as a whole. The ongoing COVID-19 pandemic, and governmental and societal responses thereto, have had a severe impact on recent global economic and market conditions, including significant disruption of, and volatility in, financial markets, global supply chain, and the institution of social distancing and shelter-in-place requirements that have resulted in temporary closures of many businesses, lost revenues, and increased unemployment. These conditions could adversely impact our operations, as well as the operations of our licensees and other business partners. With regard to the COVID-19 pandemic, we do not expect the current situation to present direct risks to our business. Our cash is held in major financial institutions primarily in government instruments. Our business is fully able to operate in a socially distanced and/or remote capacity and in accordance with applicable laws, policies, and best practices. Our workforce is provided ample paid sick leave, and we have in place robust disaster recovery and business continuity policies that have been revised to account for a long-term remote work contingency such as this. While governmental authorities have taken measures to provide economic assistance to individual households and businesses, stabilize the markets, and support economic growth, the ultimate success of these measures is unknown and they may not be sufficient to mitigate fully the negative impact of the ongoing pandemic. However, the ongoing pandemic may present risks that we do not currently consider material or risks that may evolve quickly that could have a materially adverse effect on our business, financial condition, operating results, and/or prospects. Item 2. Unregistered Sales of Equity Securities and Use of Proceeds None. Item 3. Defaults Upon Senior Securities None. Item 4. Mine Safety Disclosures Not applicable. Item 5. Other Information During August 2021, we entered into a first amendment of an office lease, to commence for a period of three years upon landlords’ substantial completion of adequate substitution space, as defined. To date, the substitution space is not ready for use, accordingly the term extension has not begun. Refer to Note 8 to the consolidated financial statements elsewhere herein for additional information. This agreement is filed herewith, refer to Part II, Item 6, “Exhibits” below. 49 Item 6. Exhibits EXHIBIT NUMBER EXHIBIT 4.1 Form of Note (incorporated by reference to Exhibit 10.1) 10.1 Fourth Supplemental Agreement, dated as of September 30, 2021, between Starboard Value, L.P., Acacia Research Corporation, Merton Acquisition Holdco LLC and certain other direct and indirect subsidiaries of the Company (incorporated by reference to the Current Report on Form 8-K filed on October 6, 2021) 10.2# First Amendment of Lease, dated as of August 5, 2021, between Sage Realty Corporation and Acacia Research Corporation (filed herewith pursuant to Part II, Item 5) 31.1# Certification of Principal Executive Officer Pursuant to Rule 13a-14(a)/15d-14(a) of the Securities Exchange Act of 1934 31.2# Certification of Principal Financial Officer Pursuant to Rule 13a-14(a)/15d-14(a) of the Securities Exchange Act of 1934 32.1*# Certification of Principal Executive Officer Pursuant to Rule 13a-14(b)/15d-14(b) of the Securities Exchange Act of 1934 and 18 U.S.C. Section 1350 32.2*# Certification of Principal Financial Officer Pursuant to Rule 13a-14(b)/15d-14(b) of the Securities Exchange Act of 1934 and 18 U.S.C. Section 1350 101# The following financial statements from the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2021, formatted in Inline Extensible Business Reporting Language (iXBRL): (i) Condensed Consolidated Balance Sheets, (ii) Condensed Consolidated Statements of Operations, (iii) Condensed Consolidated Statements of Series A Redeemable Convertible Preferred Stock and Stockholders' Equity, (iv) Condensed Consolidated Statements of Cash Flows and (v) Notes to Condensed Consolidated Financial Statements, tagged as blocks of text and including detailed tags. 104# Cover Page Interactive Data File (formatted in iXBRL and included in Exhibit 101). ___________________________ # Filed herewith. * The certifications attached as Exhibits 32.1 and 32.2 that accompany this Quarterly Report pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, shall not be deemed “filed” by the Registrant for purposes of Section 18 of the Exchange Act and are not to be incorporated by reference into any of the Registrant’s filings under the Securities Act or the Exchange Act, irrespective of any general incorporation language contained in any such filing. 50 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. ACACIA RESEARCH CORPORATION Date: November 15, 2021 /s/ Clifford Press By: Clifford Press President and Chief Executive Officer (Principal Executive Officer and Duly Authorized Signatory) Date: November 15, 2021 /s/ Richard Rosenstein By: Richard Rosenstein Chief Financial Officer (Principal Financial Officer) 51