Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On January 18, 2022, Activision Blizzard, Inc., a Delaware corporation (the
"Company" or "we"), entered into an Agreement and Plan of Merger (the "Merger
Agreement") with Microsoft Corporation ("Parent"), a Washington corporation, and
Anchorage Merger Sub Inc. ("Merger Sub"), a Delaware corporation and a wholly
owned subsidiary of Parent.
The Merger Agreement provides that, upon the terms and subject to the conditions
set forth in the Merger Agreement, Merger Sub will merge with and into the
Company (the "Merger"), with the Company surviving as a subsidiary of Parent.
Subject to the terms and conditions set forth in the Merger Agreement, at the
effective time of the Merger (the "Effective Time"), each of the Company's
issued and outstanding shares of common stock, par value $0.000001 per share
(the "Shares") (other than Shares (i) held by the Company as treasury stock
(excluding certain Shares held by a wholly owned subsidiary of the Company,
which shares will remain outstanding and unaffected by the Merger), (ii) owned
by Parent or Merger Sub, (iii) owned by any direct or indirect wholly owned
subsidiary of Parent or Merger Sub or (iv) held by stockholders who have neither
voted in favor of adoption of the Merger Agreement nor consented thereto in
writing and who have properly and validly exercised their statutory rights of
appraisal in respect of such Shares in accordance with Section 262 of the
Delaware General Corporation Law, in each case immediately prior to the
Effective Time), will be cancelled and automatically converted into the right to
receive from Parent $95.00 in cash per Share (the "Merger Consideration"),
without interest.
In addition, at the Effective Time:
· Each option to purchase Shares granted pursuant to the Company's equity
incentive plans (each, a "Company Option") that (i) is vested as of immediately
prior to the Effective Time or (ii) will become vested by its terms at the
Effective Time will be cancelled and converted into the right to receive the
Merger Consideration for each Share that would have been issuable upon exercise
of such option immediately prior to the Effective Time, less the applicable
option exercise price and any applicable withholding taxes. In the event that
the exercise price per Share under any option is equal to or greater than the
Merger Consideration, such option shall be cancelled as of the Effective Time
without payment therefor and shall have no further force or effect.
· Each outstanding award of restricted stock units or performance restricted
stock units granted pursuant to the Company's equity incentive plans (each, a
"Company Stock-Based Award") that (i) is vested as of immediately prior to the
Effective Time, (ii) will become vested by its terms at the Effective Time or
(iii) is granted to a non-employee member of the Board of the Company ("Company
Board"), will, as of the Effective Time, be cancelled and converted into the
right to receive the Merger Consideration with respect to each Share subject to
such Company Stock-Based Award, less any applicable withholding taxes.
· Each Company Option that is not cancelled and converted as described above
(each, an "Assumed Company Option") will, as of the Effective Time, be, as
determined by Parent (x) assumed by Parent and converted into a nonqualified
stock option or (y) converted into a nonqualified stock option granted pursuant
to the Parent Stock Plan, in either case, in respect of a number of shares of
common stock of Parent equal to the product (rounded down to the nearest whole
share) of (i) the number of Shares subject to such Assumed Company Option as of
immediately prior to the Effective Time (determined based on target performance
levels, as applicable) multiplied by (ii) a fraction (A) the numerator of which
is the Merger Consideration and (B) the denominator of which is the Parent
Stock Price (i.e., the volume weighted average price per share of common stock
of Parent on NASDAQ for the five consecutive trading days ending with the last
trading day ending immediately prior to the Closing Date) (such ratio, the
"Exchange Ratio"), at an exercise price per share of common stock of Parent
equal to (i) the exercise price of such Company Option divided by (ii) the
Exchange Ratio (rounded up to the nearest whole cent).
· Each Company Stock-Based Award that is not cancelled and converted as described
above (each, an "Assumed Company Stock-Based Award") will, as of the Effective
Time, be, as determined by Parent (x) assumed by Parent and converted into a
stock-based award or (y) converted into a stock-based award pursuant to the
Parent Stock Plan, in either case, subject to solely time-based vesting and in
respect of a number of shares of common stock of Parent equal to the product
(rounded down to the nearest whole share) of (i) the number of Shares subject
to such Assumed Company Option as of immediately prior to the Effective Time
(determined based on target performance levels, as applicable) multiplied by
the Exchange Ratio.
The obligation of the parties to consummate the Merger is subject to customary
conditions, including, among others, (i) the approval and adoption of the Merger
Agreement by the Company's stockholders, (ii) the absence of any court order or
law prohibiting (or seeking to prohibit) the consummation of the Merger or which
imposes or seeks to impose a Burdensome Condition (as defined in the Merger
Agreement), (iii) the early termination or expiration of any applicable waiting
period or periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
(as amended) and specified approvals under certain other antitrust and foreign
investment laws without the imposition, individually or in the aggregate, of a
Burdensome Condition, (iv) compliance by Parent and the Company in all material
respects with their respective obligations under the Merger Agreement,
(v) subject to specified exceptions and qualifications for materiality or
Company Material Adverse Effect (as defined in the Merger Agreement), the
accuracy of representations and warranties made by the Company and Parent,
respectively, as of the closing date of the Merger except as would not have a
Company Material Adverse Effect, and (vi) no Company Material Adverse Effect
having occurred after the execution of the Merger Agreement which is continuing.
The Merger Agreement contains various customary representations, warranties and
covenants, including, among others, covenants with respect to the conduct of the
Company's business prior to the Effective Time.
The Company has also agreed not to (a) solicit proposals relating to alternative
transactions or (b) enter into discussions or negotiations or provide non-public
information in connection with any proposal for an alternative transaction from
a third party, subject to certain exceptions to permit the Company Board to
comply with its fiduciary obligations. The Company has also agreed to cease and
cause to be terminated any existing discussions or negotiations, if any, with
regard to alternative transactions. However, subject to satisfaction of certain
conditions and under the circumstances specified in the Merger Agreement prior
to the adoption of the Merger Agreement by the Company's stockholders, the
Company Board may change its recommendation and may terminate the Merger
Agreement in response to a bona fide alternative acquisition proposal that the
Company Board determines in good faith constitutes a Superior Proposal (as
defined in the Merger Agreement), subject to customary match rights. The Company
Board may also change its recommendation in response to an Intervening Event (as
defined in the Merger Agreement).
The Merger Agreement also contains customary termination provisions for each of
Parent and the Company. Upon termination of the Merger Agreement, (A) the
Parent, under specified circumstances, including termination pursuant to an
injunction arising from Antitrust Laws when the Company is not then in material
breach of any provision of the Merger Agreement, will be required to pay the
Company a termination fee of (i) if such termination notice is provided prior to
January 18, 2023, an amount equal to $2,000,000,000, (ii) if such termination
notice is provided after January 18, 2023, and prior to April 18, 2023, an
amount equal to $2,500,000,000 or (iii) if such termination notice is provided
at any time after April 18, 2023, an amount equal to $3,000,000,000; and (B) the
Company, under specified circumstances, including termination of the Merger
Agreement by the Company to accept and enter into a definitive agreement with
respect to a Superior Proposal (as defined in the Merger Agreement) or by Parent
upon a Company Board Recommendation Change (as defined in the Merger Agreement),
will be required to pay Parent a termination fee of $2,270,100,000. The Company
Board has unanimously approved and adopted the Merger Agreement and recommended
that the Company's stockholders vote in favor of adoption of the Merger
Agreement.
The foregoing description of the Merger Agreement is not complete and is
qualified in its entirety by reference to the Merger Agreement, which is filed
as Exhibit 2.1 hereto and incorporated herein by reference.
The Merger Agreement, and the foregoing description of the Merger Agreement,
have been included to provide investors and our stockholders with information
regarding the terms of the Merger. The assertions embodied in the
. . .
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On January 17, 2022, the Company Board adopted an amendment to the Fourth
Amended and Restated Bylaws of the Company (the "Bylaws"), which became
effective immediately (the "Bylaws Amendment"). The Bylaws Amendment (i) amended
Section 2.13 of Article II of the Bylaws to clarify the timing required for
mailing of stockholder notices for the annual meeting of stockholders;
(ii) included certain ministerial amendments; and (iii) added a new Article IX
to the Bylaws, which provides that, unless the Company consents in writing to
the selection of an alternative forum, the sole and exclusive forum for certain
legal actions involving the Company will be the Court of Chancery of the State
of Delaware. If the Court of Chancery of the State of Delaware lacks
jurisdiction over such action or proceeding, the sole and exclusive forum for
such action or proceeding shall be another court of the State of Delaware or, if
no court of the State of Delaware has jurisdiction, then the United States
District Court for the District of Delaware. The Bylaws Amendment also provides
that, unless the Company consents in writing to the selection of an alternative
forum, the federal district courts of the United States of America will be the
exclusive forum for the resolution of any complaint asserting a cause of action
arising under the Securities Act of 1933, as amended.
The foregoing description of the Bylaws Amendment is not complete and is
qualified in its entirety by reference to the Bylaws Amendment, which is filed
as Exhibit 3.1 hereto and incorporated herein by reference.
Forward-Looking Statements
This report contains certain forward-looking statements within the meaning of
the "safe harbor" provisions of the United States Private Securities Litigation
Reform Act of 1995 with respect to the proposed transaction and business
combination between Microsoft Corporation ("Microsoft") and Activision
Blizzard, Inc. ("Activision Blizzard"), including statements regarding the
benefits of the transaction, the anticipated timing of the transaction and the
products and markets of each company. These forward-looking statements generally
are identified by the words "believe," "project," "predicts," "budget,"
"forecast," "continue," "expect," "anticipate," "estimate," "intend,"
"strategy," "future," "opportunity," "plan," "may," "could," "should," "will,"
"would," "will be," "will continue," "will likely result," and similar
expressions (or the negative versions of such words or expressions).
Forward-looking statements are predictions, projections and other statements
about future events that are based on current expectations and assumptions and,
as a result, are subject to risks and uncertainties. Many factors could cause
actual future events to differ materially from the forward-looking statements in
this report, including but not limited to: (i) the risk that the transaction may
not be completed in a timely manner or at all, which may adversely affect
Activision Blizzard's business and the price of the common stock of Activision
Blizzard, (ii) the failure to satisfy the conditions to the consummation of the
transaction, including the adoption of the merger agreement by the stockholders
of Activision Blizzard and the receipt of certain governmental and regulatory
approvals, (iii) the occurrence of any event, change or other circumstance that
could give rise to the termination of the merger agreement, (iv) the effect of
the announcement or pendency of the transaction on Activision Blizzard's
business relationships, operating results, and business generally, (v) risks
that the proposed transaction disrupts current plans and operations of
Activision Blizzard or Microsoft and potential difficulties in Activision
Blizzard employee retention as a result of the transaction, (vi) risks related
to diverting management's attention from Activision Blizzard's ongoing business
operations, (vii) the outcome of any legal proceedings that may be instituted
against Microsoft or against Activision Blizzard related to the merger agreement
or the transaction, (viii) the ability of Microsoft to successfully integrate
Activision Blizzard's operations, product lines, and technology, (ix) the impact
of the COVID-19 pandemic on Activision Blizzard's business and general economic
conditions, (x) restrictions during the pendency of the proposed transaction
that may impact Activision Blizzard's ability to pursue certain business
opportunities or strategic transactions and (xi) the ability of Microsoft to
implement its plans, forecasts, and other expectations with respect to
Activision Blizzard's business after the completion of the proposed merger and
realize additional opportunities for growth and innovation. In addition, please
refer to the documents that Microsoft and Activision Blizzard file with the
Securities and Exchange Commission on Forms 10-K, 10-Q and 8-K. These filings
identify and address other important risks and uncertainties that could cause
events and results to differ materially from those contained in the
forward-looking statements set forth in this report. Forward-looking statements
speak only as of the date they are made. Readers are cautioned not to put undue
reliance on forward-looking statements, and Microsoft and Activision Blizzard
assume no obligation and do not intend to update or revise these forward-looking
statements, whether as a result of new information, future events, or otherwise.
Additional Information and Where to Find It
In connection with the transaction, Activision Blizzard will file relevant
materials with the SEC, including a proxy statement on Schedule 14A. Promptly
after filing its definitive proxy statement with the SEC, Activision Blizzard
will mail the definitive proxy statement and a proxy card to each stockholder
entitled to vote at the special meeting relating to the transaction. INVESTORS
AND SECURITY HOLDERS OF ACTIVISION BLIZZARD ARE URGED TO READ THESE MATERIALS
(INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND ANY OTHER RELEVANT
DOCUMENTS IN CONNECTION WITH THE TRANSACTION THAT ACTIVISION BLIZZARD WILL FILE
WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION ABOUT ACTIVISION BLIZZARD AND THE TRANSACTION. The definitive proxy
statement, the preliminary proxy statement and other relevant materials in
connection with the transaction (when they become available), and any other
documents filed by Activision Blizzard with the SEC, may be obtained free of
charge at the SEC's website (http://www.sec.gov) or at Activision Blizzard's
website (https://investor.Activision.com) or by writing to Activision
Blizzard, Investor Relations, 3100 Ocean Park Boulevard, Santa Monica,
California, 90405.
Activision Blizzard and certain of its directors and executive officers and
other members of management and employees may be deemed to be participants in
the solicitation of proxies from Activision Blizzard's stockholders with respect
to the transaction. Information about Activision Blizzard's directors and
executive officers and their ownership of Activision Blizzard's common stock is
set forth in Activision Blizzard's proxy statement on Schedule 14A filed with
the SEC on April 30, 2021 as amended on May 3, 2021. To the extent that holdings
of Activision Blizzard's securities have changed since the amounts printed in
Activision Blizzard's proxy statement, such changes have been or will be
reflected on Statements of Change in Ownership on Form 4 filed with the SEC.
Information regarding the identity of the participants, and their direct or
indirect interests in the transaction, by security holdings or otherwise, will
be set forth in the proxy statement and other materials to be filed with SEC in
connection with the transaction.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No. Description of Exhibit
2.1 Agreement and Plan of Merger, dated as of January 18, 2022, by and
among Microsoft Corporation, Anchorage Merger Sub Inc. and Activision
Blizzard, Inc.
3.1 Fifth Amended and Restated Bylaws of Activision Blizzard, Inc., as
amended effective as of January 17, 2022
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document).
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