As filed with the Securities and Exchange Commission on May 8, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACTIVISION, INC.
(Exact name of issuer as specified in its charter)
Delaware 95-4803544
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3100 Ocean Park Boulevard
Santa Monica, California 90405
(Address of Principal Executive Offices) (Zip Code)
Employee Stock Options
(Full title of the plan)
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Ronald Doornink
President
Activision, Inc.
3100 Ocean Park Boulevard
Santa Monica, California 90405
(310) 255-2000
(Name, address and telephone number of agent for service)
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Copies to:
Kenneth L. Henderson, Esq.
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Approximate date of proposed sale to the public:
From time to time after the effective date of this
Registration Statement.
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum Amount
Title of Each Amount Offering Aggregate of
Class of Securities to be Price Offering Registration
to be Registered Registered Per Share(1) Price(1) Fee
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Common Stock, par 390,286(3) $13.9167(1) $5,431,493.18(1) $500(4)
value $.000001
per share (2)
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(1) Estimated solely for purposes of calculating the registration fee. Pursuant
to Rules 457(h), the Proposed Maximum Offering Price Per Share and the
Proposed Maximum Aggregate Offering Price are computed on the basis of the
price at which the options may be exercised.
(2) Each share of common stock includes a right to purchase one-hundredth of a
share of Series A Junior Preferred Stock pursuant to a rights agreement
between the registrant and Continental Stock Transfer & Trust Company, as
rights agent.
(3) The shares covered by this Registration Statement represent the underlying
stock for options granted outside of any plan to certain employees of the
registrant during the fiscal year ended March 31, 2002.
(4) Pursuant to Rule 457(p) of the Securities Act of 1933, as amended, the
registration fee of $500 is offset against the $57,141 registration fee (of
which $16,907 remains) that was previously paid to the Commission relating
to 6,900,000 shares of Common Stock previously registered by the registrant
pursuant to its Registration Statement on Form S-3 filed with the
Commission on July 30, 2001 (File No. 333-66280), which Registration
Statement was withdrawn on October 22, 2001, prior to the issuance of any
such shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Items 1 and 2. Plan Information; Registrant Information and Employee Plan Annual
Information.
The document(s) containing the information specified in the instructions to
Part I of Form S-8 will be sent or given to holders of the non-plan options as
specified by Rule 428(b)(1). In addition, the statement required to be made
pursuant to Item 2 of Part I to Form S-8 shall be contained in the Section 10(a)
prospectus.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Activision, Inc., a Delaware corporation
(the "Company"), with the Securities and Exchange Commission (the "Commission")
are incorporated in this Registration Statement by reference:
1. Annual Report on Form 10-K for the fiscal year ended March 31, 2001.
2. Proxy Statement dated July 30, 2001, as filed with the Commission on
July 30, 2001.
3. Quarterly Reports on Form 10-Q for the quarterly periods ended June
30, 2001, September 30, 2001 and December 31, 2001.
4. Current Reports on Form 8-K filed with the Commission on July 11,
2001, July 31, 2001, October 4, 2001 and January 18, 2002.
5. Description of the Company's Common Stock and the rights associated
with the Common Stock contained in the Company's Registration
Statement on Form S-3, Registration No. 333-46425, and the Company's
Registration Statement on Form 8-A, File No. 001-15839, filed on April
19, 2000.
6. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since March 31, 2001.
All documents filed subsequent to the filing date of this Registration
Statement with the Commission by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all securities offered by this Registration Statement have been sold or which
de-registers all such securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of the filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated herein by reference shall be
deemed to be modified or superseded for purposes
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of this Registration Statement to the extent that a statement contained herein
or in any subsequent filed document which also is, or is deemed to be,
incorporated by reference herein modifies or supersedes such prior statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement,
except as indicated herein.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL"), paragraph B
of Article SIXTH of the Company's Amended and Restated Certificate of
Incorporation, as amended, and paragraph 5 of Article VII of the Company's
Amended and Restated By-laws provide for the indemnification of the Company's
directors and officers in a variety of circumstances, which may include
liabilities under the Securities Act of 1933, as amended (the "Securities Act").
Paragraph B of Article SIXTH of the Amended and Restated Certificate of
Incorporation, as amended, provides mandatory indemnification rights to any
officer or director of the Company who, by reason of the fact that he or she is
an officer or director of the Company, is involved in a legal proceeding of any
nature. Such indemnification rights shall include reimbursement for expenses
incurred by such officer or director in advance of the final disposition of such
proceeding in accordance with the applicable provisions of the DGCL. Paragraph 5
of Article VII of the Company's Amended and Restated By-laws currently provides
that the Company shall indemnify its directors and officers to the fullest
extent allowed by law.
Paragraph A of Article SIXTH of the Amended and Restated Certificate of
Incorporation, as amended, contains a provision which eliminates the personal
liability of a director to the Company and its stockholders for certain breaches
of his or her fiduciary duty of care as a director. This provision does not,
however, eliminate or limit the personal liability of a director (i) for any
breach of such director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under the Delaware statutory
provision making directors personally liable, under a negligence standard, for
unlawful dividends or unlawful stock repurchases or redemptions, or (iv) for any
transaction from which the director derived an improper personal benefit. This
provision offers persons who serve on the Board of Directors of the Company
protection against awards of monetary damages resulting from negligent (except
as indicated above) and "grossly" negligent actions taken in the performance of
their duty of care, including grossly negligent business decisions made in
connection with takeover proposals for the Company. As a result of this
provision, the ability of the Company or a stockholder thereof to successfully
prosecute an action against a director for a breach of his duty of care has been
limited. However, the provision does not affect the availability of equitable
remedies such as an injunction or rescission based upon a director's breach of
his duty of care.
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The Company maintains a directors' and officers' insurance policy which
insures the officers and directors of the Company from any claim arising out of
an alleged wrongful act by such persons in their respective capacities as
officers and directors of the Company. In addition, the Company has entered into
indemnification agreements with its officers and directors containing provisions
which are in some respects broader than the specific indemnification provisions
contained in the DGCL. The indemnification agreements require the Company, among
other things, to indemnify such officers and directors against certain
liabilities that may arise by reason of their status or service as directors or
officers (other than liabilities arising from willful misconduct of a culpable
nature) and to advance their expenses incurred as a result of any proceeding
against them as to which they could be indemnified. The Company believes that
these agreements are necessary to attract and retain qualified persons as
directors and officers.
It is currently unclear as a matter of law what impact these provisions
will have regarding securities law violations. The Commission takes the position
that indemnification of directors, officers and controlling persons against
liabilities arising under the Securities Act is against public policy as
expressed in the Securities Act and therefore is unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Activision, Inc. form of Stock Option Certificate.
5.1 Opinion of Robinson Silverman Pearce Aronsohn & Berman LLP, counsel to the
Company, as to the legality of the Common Stock being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of KPMG LLP.
23.3 Consent of Robinson Silverman Pearce Aronsohn & Berman LLP (included as
part of Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
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(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) will not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with the Commission by the
registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Monica, State of California, on the 30th day of
April, 2002.
ACTIVISION, INC.
By:/s/ Ronald Doornink
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Ronald Doornink, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Robert A. Kotick, Brian G. Kelly and
Ronald Doornink, and each or any of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including, without limitation, post-effective amendments and
documents in connection therewith) to this Registration Statement, and to file
the same with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ Robert A. Kotick Chairman, Chief Executive Officer April 30, 2002
------------------------- and Director
Robert A. Kotick
/s/ Brian G. Kelly Co-Chairman and Director April 30, 2002
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Brian G. Kelly
/s/ Ronald Doornink President, Activision, Inc.; April 30, 2002
-------------------------- Chief Executive Officer,
Ronald Doornink Activition Publishing, Inc.
(Principal Executive Officer)
/s/ William J. Chardavoyne Executive Vice President and April 30, 2002
-------------------------- Chief Financial Officer (Principal
William J. Chardavoyne Financial and Accounting Officer)
/s/ Kenneth L. Henderson Director April 30, 2002
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Kenneth L. Henderson
/s/ Barbara S. Isgur Director April 30, 2002
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Barbara S. Isgur
/s/ Steven T. Mayer Director April 30, 2002
--------------------------
Steven T. Mayer
/s/ Robert J. Morgado Director April 30, 2002
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Robert J. Morgado
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EXHIBIT INDEX
No. Document
4.1 Activision, Inc. form of Stock Option Certificate
5.1 Opinion of Robinson Silverman Pearce Aronsohn & Berman LLP, counsel to the
Company, as to the legality of the Common Stock being registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of KPMG LLP
23.3 Consent of Robinson Silverman Pearce Aronsohn & Berman LLP (included as
part of Exhibit 5.1)
24.1 Power of Attorney (included on signature page)