Full time
employees with the title of Senior Vice President and higher of Acacia Research
Corporation or any successor thereto (“Acacia”) shall receive the benefits set
forth below. This Executive Severance Policy may not be amended or modified in a
manner that adversely effects an employee who is a duly appointed Senior Vice
President or higher executive officer of Acacia at the time of such proposed
amendment or modification.
2.
Definition of
Cause. For purposes of this Severance Policy, “Cause” shall
mean that Acacia, acting in good faith based upon the information then known to
Acacia, determines that the applicable employee has engaged in any act of fraud,
embezzlement or dishonesty, any unauthorized use or disclosure by such employee
of confidential information or trade secrets of Acacia (or any subsidiary), or
any other intentional misconduct by such employee that adversely affects the
business or affairs of Acacia (or any subsidiary) in a material manner, after
reasonable written notice and reasonable time to cure such misconduct if such
misconduct is subject to cure.
3.
Section
409A. Notwithstanding anything herein to the contrary, to the
extent any payments to Officer pursuant to Section 1 are treated as
non-qualified deferred compensation subject to Section 409A of the Code, then
(i) no amount shall be payable pursuant to such section unless Officer’s
termination of employment constitutes a “separation from service” with Acacia
(as such term is defined in Treasury Regulation Section 1.409A-1(h) and any
successor provision thereto) (a “Separation from Service”), and (ii) if Officer,
at the time of his Separation from Service, is determined by Acacia to be a
“specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code and
Acacia determines that delayed commencement of any portion of the termination
benefits payable to Officer pursuant to this Agreement is required in order to
avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (any
such delayed commencement, a “Payment Delay”), then such portion of the
Officer’s termination benefits described in Section 1 shall not be provided to
Officer prior to the earlier of (A) the expiration of the six-month period
measured from the date of the Officer’s Separation from Service, (B) the date of
the Officer’s death or (C) such earlier date as is permitted under Section
409A. Upon the expiration of the applicable Code Section
409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment
Delay shall be paid in a lump sum to Officer within five (5) business days
following such expiration, and any remaining payments due under the Agreement
shall be paid as otherwise provided herein. The determination of
whether Officer is a “specified employee” for purposes of Section
409A(a)(2)(B)(i) of the Code as of the time of his Separation from Service shall
made by Acacia in accordance with the terms of Section 409A of the Code and
applicable guidance thereunder (including without limitation Treasury Regulation
Section 1.409A-1(i) and any successor provision thereto).
Notwithstanding
the paragraph above, to the maximum extent permitted by applicable law, amounts
payable to Officer pursuant to Section 1 shall be made in reliance upon Treasury
Regulation Section 1.409A-1(b)(9) (with respect to separation pay plans) or
Treasury Regulation Section 1.409A-1(b)(4) (with respect to short-term
deferrals). Accordingly, the severance payments provided for in
Section 1 are not intended to provide for any deferral of compensation subject
to Section 409A of the Code to the extent (i) the severance payments payable
pursuant to Section 1, by their terms and determined as of the date of Officer’s
Separation from Service, may not be made later than the 15th day of the third
calendar month following the later of (A) the end of Acacia’s fiscal year in
which Officer’s Separation from Service occurs or (B) the end of the calendar
year in which Officer’s Separation from Service occurs, or (ii) (A) such
severance payments do not exceed an amount equal to two times the lesser of (1)
the amount of Officer’s annualized compensation based upon Officer’s annual rate
of pay for the calendar year immediately preceding the calendar year in which
Officer’s Separation from Service occurs (adjusted for any increase during the
calendar year in which such Separation from Service occurs that would be
expected to continue indefinitely had Officer remained employed with Acacia) or
(2) the maximum amount that may be taken into account under a qualified plan
pursuant to Section 401(a)(17) for the calendar year in which Officer’s
Separation from Service occurs, and (B) such severance payments shall be
completed no later than December 31 of the second calendar year following the
calendar year in which Officer’s Separation from Service occurs.
