This Amendment No. 4 amends the Schedule 13D filed with the Securities and Exchange Commission (“
SEC
”) on October 21, 2013 and amended on December 16, 2013, November 20, 2014 and May 9, 2016 (as amended, the “
Schedule 13D
”). Unless otherwise stated herein, the Schedule 13D remains in full force and effect. Terms used therein and not defined herein shall have the meanings ascribed thereto in the Schedule 13D.
ITEM 4.
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Purpose of Transaction.
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Item 4 of the Schedule 13D is hereby amended and supplemented as follows:
On June 2, 2016, ASAC entered into partial loan repayment and collateral release agreements (“
Repayment Agreements
”) with JPMorgan Chase Bank, N.A., London Branch and the other parties thereto and Bank of America, N.A., London Branch and the other parties thereto, respectively. The Repayment Agreements permit (i) the distribution of Shares allocable to the limited partners in consideration for the repayment of each limited partner’s pro rata portion of the loans outstanding and (ii) the balance of the loans attributable to the Shares owned by ASAC GP to remain outstanding. On the same date, ASAC also entered into a second amended and restated agreement of limited partnership (the “
Second Amended LPA
”) to provide for the foregoing. Having obtained these amendments, ASAC plans to distribute the Shares to limited partners, as scheduled, on June 8, 2016, as further described in Amendment No. 3 to this Schedule 13D.
On June 3, 2016, Activision filed an automatic shelf registration statement registering the Shares as required under Section 2.01(a) of the Stockholders Agreement. Following the distribution, the Shares may be sold by the limited partners and ASAC under the registration statement.
ITEM 5.
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Interest in Securities of the Issuer.
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Item 5 of the Schedule 13D is hereby amended as follows:
(a) Item 5(a) is amended by deleting the first paragraph and replacing it with the following paragraph:
Unless otherwise indicated, percentage interest calculations for each Reporting Person prior to the distribution are based upon the Issuer having 738,227,641 shares of Common Stock outstanding as reported by the Issuer in its quarterly report filed on Form 10-Q on May 9, 2016.
Item 5(a) is further amended by deleting the paragraphs under the headings “RAK” and “BGK” and replacing them with the following paragraphs:
RAK
As one of the controlling persons of ASAC GP, trustee of 10122B Trust, the controlling person of 1011 Foundation, Inc. and the custodian of the Eli Sporn UTMA account, RAK may, pursuant to Rule 13d-3 of the Act, be deemed to be the beneficial owner of 180,140,167 shares of Common Stock, which constitutes 24.3% of the outstanding shares of Common Stock, which for purposes of this calculation includes 738,227,641 shares of Common Stock outstanding as reported by the Issuer in its quarterly report filed on Form 10-Q on May 9, 2016, 3,962,998 shares of Common Stock represented by options held by 10122B Trust and 34,350 shares of Common Stock represented by restricted share units held by
10122B Trust scheduled to vest within the next 60 days. RAK disclaims beneficial ownership of any shares of Common Stock held by 1011 Foundation, Inc. or the Eli Sporn UTMA account.
BGK
Individually, and because of his positions as one of the controlling persons of ASAC GP, trustee of the Kelly Family 2012 Irrevocable Trust (“
2012 Kelly Family Trust
”), grantor of the Brian G. Kelly 2012 Annuity Trust (“
2012 Kelly Trust
”), trustee of the Brian & Joelle Kelly Family Foundation (“
Kelly Family Foundation
”), custodian of the Grace Kotick UTMA account and custodian of the Audrey Kotick UTMA account, BGK may, pursuant to Rule 13d-3 of the Act, be deemed to be the beneficial owner of 174,479,466 shares of Common Stock, which constitutes 23.6% of the outstanding shares of Common Stock, which for purposes of this calculation includes 738,227,641 shares of Common Stock outstanding as reported by the Issuer in its quarterly report filed on Form 10-Q on May 9, 2016, 17,685 shares of Common Stock represented by restricted share units held by 2012 Kelly Trust scheduled to vest within 60 days, 41,797 shares of Common Stock represented by restricted share units held by BGK scheduled to vest within the next 60 days, 262,998 shares of Common Stock represented by options held by BGK and 80,676 shares of Common Stock represented by options held by BGK scheduled to vest within the next 60 days. BGK disclaims beneficial ownership of any shares of Common Stock held by Kelly Family Foundation, the Grace Kotick UTMA account and the Audrey Kotick UTMA account.
(b) Item 5(b) is amended by deleting the paragraphs under the headings “RAK” and “BGK” and replacing them with the following paragraphs:
RAK
As one of two controlling persons of ASAC GP, which is the sole general partner of ASAC, RAK may be deemed to have shared power with BGK to vote or to direct the vote and to dispose or to direct the disposition of 171,968,042 shares held by ASAC. In addition, RAK has the sole power to vote or to direct the vote and to dispose or to direct the disposition of 3,479,398 shares of Common Stock held by 10122B Trust, of which RAK is trustee, 690,579 shares of Common Stock held by 1011 Foundation, Inc., of which RAK is the controlling person, and 4,800 shares of Common Stock held by the Eli Sporn UTMA account, of which RAK is the custodian. RAK may be deemed to have the sole power to vote or dispose of 3,962,998 shares of Common Stock represented by options held by 10122B Trust and 34,350 shares of Common Stock represented by restricted share units held by 10122B Trust scheduled to vest within the next 60 days.
BGK
As one of two controlling persons of ASAC GP, which is the sole general partner of ASAC, BGK may be deemed to have shared power with RAK to vote or to direct the vote and to dispose or to direct the disposition of 171,968,042 shares held by ASAC. In addition, BGK has the sole power to vote or to direct the vote and to dispose or to direct the disposition of 472,865 shares of Common Stock held by 2012 Kelly Family Trust, of which BGK is trustee, 478,520 shares of Common Stock and 17,685 shares of Common Stock represented by restricted share units scheduled to vest within 60 days held by 2012 Kelly Trust, of which BGK is grantor, 485,892 shares of Common Stock held by Kelly Family Foundation, of which BGK is trustee, 4,800 shares of Common Stock held by the Grace Kotick UTMA account, of which BGK is custodian, 4,800 shares of Common Stock held by the Audrey Kotick UTMA account, of which BGK is custodian, and 661,391 shares of Common Stock held by BGK directly. BGK may be deemed to have the sole power to vote or dispose of 41,797 shares represented by restricted share units held by BGK scheduled to vest within the next 60 days, 262,998 shares of Common Stock represented by options held by BGK and 80,676 shares of Common Stock represented by options held by BGK scheduled to vest within the next 60 days.
(c) Item 5(c) is amended and restated as follows:
On May 13, 2016, 1011 Foundation donated 50,000 shares of Common Stock to charity.
On June 1, 2016, 34,350 restricted stock units held by 10122B Trust vested. As allowed under the terms of RAK’s restricted share unit agreement, on June 1, 2016, the Issuer withheld 17,924 of the shares of Common Stock otherwise deliverable to 10122B Trust in order to satisfy the resulting tax withholding obligation.
On June 1, 2016, 17,685 restricted stock units held by 2012 Kelly Trust vested. As allowed under the terms of BGK’s restricted share unit agreement, on June 1, 2016, the Issuer withheld 9,872 of the shares of Common Stock otherwise deliverable to 2012 Kelly Trust in order to satisfy the resulting tax withholding obligation.
Except as described in this Schedule 13D, to the knowledge of any of the Reporting Persons, no other transactions in the Common Stock were effected by the Reporting Person or any of the entities or persons named in Item 2 hereto since the most recent Schedule 13D.
ITEM 6.
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Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
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Item 6 of the Schedule 13D is hereby amended and supplemented as follows:
As further described in Item 4, on June 2, 2016, ASAC entered into the Repayment Agreements.
As further described in Item 4, ASAC entered into a Second Amended LPA to provide for the distribution of Shares to the limited partners on June 8, 2016 (the “
Distribution
”). Following such Distribution, each limited partner will receive post-distribution common interests entitling such limited partner to a pro rata share of cash remaining in ASAC, subject to certain adjustments, and ASAC GP will receive special interests entitling it to the Shares allocated to ASAC GP in the Distribution and any property (including cash) received by ASAC as a dividend or distribution on or in exchange for the Shares allocated to ASAC GP.
Following the Distribution, ASAC GP may authorize cash distributions to the limited partners and distributions of cash and Shares to ASAC GP, at its sole discretion. ASAC will also be permitted, at ASAC GP’s discretion, to acquire, hold, pledge, sell, transfer or otherwise dispose of the Shares remaining in ASAC. ASAC GP will continue to control the exercise of voting rights with respect to the Shares.
The description of the Second LPA and the amendments to the loan agreements in Item 4 are hereby incorporated by reference. The foregoing description of the LPA and the amendments to the loan agreements are qualified in their entirety by reference to the full text of the Second LPA and loan agreements incorporated as Exhibits H, I and J hereto.
ITEM 7. Material to be Filed as Exhibits.
Item 7 is hereby amended to insert the following exhibits:
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Exhibit H –
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Second Amended and Restated Limited Partnership of ASAC II LP
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Exhibit I –
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Partial Loan Repayment and Collateral Release Agreement, among ASAC II LP and JPMorgan Chase Bank, N.A., London Branch
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Exhibit J –
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Partial Loan Repayment and Collateral Release Agreement, among ASAC II LP, Bank of America, N.A., London Branch and the other parties thereto
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