SEC Form SC 13D/A filed by Acacia Research Corporation (Acacia Tech) (Amendment)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

§ 240.13d-2(a)

(Amendment No. 2)¹

Acacia Research Corporation

(Name of Issuer)

Common Stock, par value $0.001 per share

(Title of Class of Securities)

003881307

(CUSIP Number)

JEFFREY C. SMITH

STARBOARD VALUE LP

777 Third Avenue, 18th Floor

New York, New York 10017

(212) 845-7977

ANDREW FREEDMAN, ESQ.

MEAGAN REDA, ESQ.

OLSHAN FROME WOLOSKY LLP

1325 Avenue of the Americas

New York, New York 10019

(212) 451-2300

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

July 13, 2023

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.

Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See § 240.13d-7 for other parties to whom copies are to be sent.

1              The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

The following constitutes Amendment No. 2 to the Schedule 13D filed by the undersigned (“Amendment No. 2”). This Amendment No. 2 amends the Schedule 13D as specifically set forth herein.

Item 3 is hereby amended and restated as follows:

The securities purchased by each of Starboard V&O Fund, Starboard S LLC, Starboard C LP, Starboard L Master, Starboard X Master and Starboard Value LP through the Starboard Value LP Account were purchased with working capital pursuant to the terms of the various agreements entered into with the Issuer, as further described in Item 4 below.

The aggregate purchase price of 33,048,368 Shares beneficially owned by Starboard V&O Fund is approximately $128,736,762, excluding brokerage commissions. The aggregate purchase price of the 6,112,360 Shares beneficially owned by Starboard S LLC is approximately $23,810,114, excluding brokerage commissions. The aggregate purchase price of the 3,545,169 Shares beneficially owned by Starboard C LP is approximately $13,809,867, excluding brokerage commissions. The aggregate purchase price of the 3,361,798 Shares beneficially owned by Starboard L Master is approximately $13,095,563, excluding brokerage commissions. The aggregate purchase price of the 4,664,889 Shares beneficially owned by Starboard X Master is approximately $18,171,626, excluding brokerage commissions. The aggregate purchase price of the 10,391,011 Shares held in the Starboard Value LP Account is approximately $40,477,190, excluding brokerage commissions.

The 45,394 Shares beneficially owned directly by Mr. Molinelli were awarded to him in his capacity as a director of the Issuer. 164,892 of the Shares beneficially owned directly by Mr. Sagal were awarded to him in his capacity as a director of the Issuer. 24,335 of the Shares beneficially owned directly by Mr. Sagal were purchased with personal funds in connection with Mr. Sagal’s exercise of certain subscriptions rights in connection with the Public Rights Offering (as defined and described in Item 4 of Amendment No. 1 to the Schedule 13D). The aggregate purchase price of the 24,335 Shares beneficially owned by Mr. Sagal pursuant to his exercise of subscription rights in the Public Rights Offering is $127,759.

Item 4 is hereby amended to add the following:

As previously disclosed, on October 30, 2022, Starboard Value LP and certain of its affiliates (collectively, “Starboard”) entered into a Recapitalization Agreement (the “Recapitalization Agreement”) with the Issuer, pursuant to which, among other things, Starboard and the Issuer agreed to enter into a series of transactions to restructure Starboard’s existing investments in the Issuer.

As contemplated by the Recapitalization Agreement, on June 30, 2023, the Issuer filed its Amended and Restated Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock (the “Certificate of Designations”), which was previously approved by the Issuer’s stockholders at the Issuer’s annual meeting of stockholders held on May 16, 2023, to remove the 4.89% blocker provision contained therein. In accordance with the terms of the Certificate of Designations and the Recapitalization Agreement, on July 13, 2023, Starboard converted an aggregate amount of 350,000 shares of Series A Convertible Preferred Stock into 9,616,746 Shares, including 27,704 Shares issued in respect of accrued and unpaid dividends.

Further to the terms of the Recapitalization Agreement and in accordance with the terms of the Issuer’s Series B Warrants (the “Series B Warrants”), on July 13, 2023, Starboard also irrevocably exercised 31,506,849 of the Series B Warrants through a combination of a “Note Cancellation” and a “Limited Cash Exercise” (each as defined in the Series B Warrants), as determined by Starboard, for an aggregate total of 31,506,849 Shares (the “Series B Warrants Exercise”). Pursuant to the Series B Warrants Exercise, the Issuer cancelled $60 million aggregate principal amount of senior secured notes held by Starboard and received aggregate gross proceeds of approximately $55 million.

The foregoing description of the Certificate of Designations is qualified in its entirety by reference to the full text of the Certificate of Designations, which is included as Appendix A to the Issuer’s Definitive Proxy Statement filed with the Securities and Exchange Commission (the “SEC”) on April 17, 2023, and included as Exhibit 99.1 hereto.

Items 5(a) – (c) are hereby amended and restated as follows:

The aggregate percentage of Shares reported owned by each person named herein is based upon 99,886,322 Shares outstanding, as of July 13, 2023, which is the total number of Shares outstanding as reported in the Issuer’s Current Report on Form 8-K filed with the SEC on July 17, 2023.

Percentage: Approximately 33.1%

Percentage: Approximately 6.1%

Percentage: Approximately 3.5%

Percentage: Approximately 3.5%

Percentage: Approximately 3.4%

Percentage: Approximately 3.4%

Percentage: Approximately 6.9%

Percentage: Approximately 4.7%

Percentage: Approximately 61.2%

Percentage: Approximately 61.2%

Percentage: Approximately 61.2%

Percentage: Approximately 61.2%

Percentage: Approximately 61.2%

Percentage: Less than 1%

Percentage: Less than 1%

The filing of this Schedule 13D shall not be deemed an admission that the Reporting Persons are, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, the beneficial owners of any securities of the Issuer that he or it does not directly own. Each of the Reporting Persons specifically disclaims beneficial ownership of the securities reported herein that he or it does not directly own.

Item 7 is hereby amended to add the following exhibit:

99.1       Amended and Restated Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock (incorporated by reference to Appendix A to the Issuer’s Definitive Proxy Statement, filed with the SEC on April 17, 2023).

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: July 17, 2023

SCHEDULE A

Transactions in the Securities of the Issuer During the Past Sixty Days

STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD

STARBOARD VALUE AND OPPORTUNITY S LLC

STARBOARD VALUE AND OPPORTUNITY C LP

STARBOARD VALUE AND OPPORTUNITY MASTER FUND L LP

STARBOARD X MASTER FUND LTD

STARBOARD VALUE LP
(Through the Starboard Value LP Account)

JONATHAN SAGAL

GAVIN T. MOLINELLI

____________________________

* Represents the exercise of Series B Warrants pursuant to the terms of the Recapitalization Agreement and Series B Warrants, as further described in Item 4.

^# Represents the conversion of Series A Convertible Preferred Stock pursuant to the terms of the Recapitalization Agreement and Certificate of Designations, as further described in Item 4.

^ Awarded by the Issuer in connection with service as a director of the Issuer, which will vest on the first anniversary of the grant date.

⁺ Awarded by the Issuer in lieu of quarterly retainer fees payable for Mr. Sagal’s service as a director of the Issuer.