SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] CONFIDENTIAL, FOR USE OF THE COMMISSION ONLY (AS PERMITTED BY RULE
14A-6(E)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
Activision, Inc.
-----------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
-----------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
-----------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
-----------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
-----------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
-----------------------------------------------------------------------
(5) Total fee paid:
-----------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the form or schedule and the date of its filing.
(1) Amount Previously Paid:
-----------------------------------------------------------------------
(2) Form, Schedule or Registration Statement no.:
-----------------------------------------------------------------------
(3) Filing Party:
-----------------------------------------------------------------------
(4) Date Filed:
-----------------------------------------------------------------------
Activision(R)
3100 Ocean Park Boulevard
Santa Monica, California 90405
November [ ], 2003
Dear Stockholder:
You are cordially invited to attend a Special Meeting of Stockholders of
Activision, Inc. The meeting will be held on [ ], December [ ], 2003, beginning
at 9:00 a.m., local time, at the office of Bryan Cave LLP, 120 Broadway, Suite
300, Santa Monica, California 90401.
Information about the meeting and the matters on which the Stockholders will act
is included in the Notice of Special Meeting of Stockholders and Proxy Statement
that follow. Also included is a Proxy Card and postage paid return envelope.
It is important that your shares be represented at the Special Meeting. Whether
or not you plan to attend, it is important that you complete and return your
Proxy Card in the enclosed envelope as promptly as possible.
Sincerely,
/s/ Robert A. Kotick
--------------------------
Robert A. Kotick
Chairman and Chief Executive Officer
/s/ Brian G. Kelly
--------------------------
Brian G. Kelly
Co-Chairman
/s/ Ronald Doornink
--------------------------
Ronald Doornink
President, Activision, Inc. and
Chief Executive Officer,
Activision Publishing, Inc.
Activision(R)
3100 Ocean Park Boulevard
Santa Monica, California 90405
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To Be Held December [ ], 2003
To the Stockholders of Activision, Inc:
A Special Meeting of Stockholders of Activision, Inc. (the "Company") will be
held at the offices of Bryan Cave LLP, 120 Broadway, Suite 300, Santa Monica,
California 90401, on [ ], December [ ], 2003, at 9:00 a.m., local time, for the
following purpose:
o To approve an amendment to the Company's Amended and Restated
Certificate of Incorporation, as amended, to increase the number of
authorized shares of common stock from 125,000,000 to 225,000,000.
The foregoing item of business is described more fully in the Proxy Statement
accompanying this Notice.
The Board of Directors of the Company has fixed the close of business on
December 1, 2003 as the record date for determining the Stockholders entitled to
receive notice of, and to vote at, the Special Meeting.
STOCKHOLDERS ARE CORDIALLY INVITED TO ATTEND THE MEETING IN PERSON.
YOUR VOTE IS IMPORTANT. ACCORDINGLY, YOU ARE URGED TO COMPLETE, SIGN, DATE AND
RETURN THE ACCOMPANYING PROXY CARD PROMPTLY IN THE ENVELOPE PROVIDED, WHETHER OR
NOT YOU PLAN TO ATTEND THE SPECIAL MEETING. NO POSTAGE IS REQUIRED IF THE PROXY
CARD IS MAILED IN THE UNITED STATES. STOCKHOLDERS WHO ARE PRESENT AT THE SPECIAL
MEETING MAY WITHDRAW THEIR PROXY AND VOTE IN PERSON IF THEY SO DESIRE. IT IS
IMPORTANT THAT YOUR PROXY CARD BE RETURNED PROMPTLY IN ORDER TO AVOID THE
ADDITIONAL EXPENSE OF FURTHER SOLICITATION.
By Order of the Board of Directors
/s/ George L. Rose
-----------------------
George L. Rose
Secretary
November [ ], 2003
Santa Monica, California
Activision(R)
3100 Ocean Park Boulevard
Santa Monica, California 90405
PROXY STATEMENT
for a Special Meeting of Stockholders to be held on December [ ], 2003
GENERAL
This Proxy Statement is furnished in connection with the solicitation by the
Board of Directors (the "Board" or "Board of Directors") of Activision, Inc., a
Delaware corporation (the "Company"), of proxies from the holders (the
"Stockholders") of the Company's issued and outstanding shares of common stock,
$.000001 par value per share (the "Common Stock"), to be used at a Special
Meeting of Stockholders to be held on [ ], December [ ], 2003, at the offices of
Bryan Cave LLP, 120 Broadway, Suite 300, Santa Monica, California 90401, at 9:00
a.m., local time, and at any adjournment or postponement of such meeting (the
"Special Meeting"), for the purposes set forth in the accompanying Notice of
Special Meeting of Stockholders. This Proxy Statement and enclosed proxy card
are first being mailed to the Stockholders of the Company on or about November [
], 2003.
RECORD DATE AND QUORUM
Stockholders of record at the close of business on December 1, 2003 are entitled
to notice of, and to vote at, the Special Meeting. On the record date there are
expected to be approximately 88,879,345 shares of Common Stock of the Company
outstanding. Each share of Common Stock outstanding on the record date is
entitled to one vote on the matter presented for action at the Special Meeting.
Shares of Common Stock were the only voting securities of the Company
outstanding on the record date. A majority of the outstanding shares of Common
Stock must be present in person or by proxy at the Special Meeting in order for
a quorum to be present. Abstentions and broker non-votes are included for
purposes of determining whether a quorum is present at the Special Meeting.
REQUIRED VOTES
The affirmative vote of a majority of the outstanding shares of Common Stock of
the Company is required for approval of the proposed amendment to the Company's
Amended and Restated Certificate of Incorporation, as amended, to increase the
number of shares of authorized Common Stock (the "Proposal"). Abstentions and
broker non-votes will have the effect of a vote "AGAINST". A broker "non-vote"
occurs when a nominee holding shares for a beneficial owner does not vote on a
particular proposal because the nominee does not have discretionary voting power
with respect to that item and has not received instructions from the beneficial
owner.
In the event that sufficient votes in favor of the proposal are not received by
the date of the Special Meeting, the Chairman of the Special Meeting may propose
one or more adjournments of the Special Meeting to permit further solicitations
of proxies. Any such adjournment will require the affirmative vote of the
holders of a majority of the shares in person or by proxy at the Special
Meeting.
PROXIES
Whether or not you are able to attend the Special Meeting, you are urged to
complete, sign and return your proxy card. The Common Stock represented by all
properly executed proxy cards received by the Company prior to the Special
Meeting, and not revoked, will be voted at the Special Meeting as directed in
the signed proxy. If no directions are specified, such proxies shall be voted
FOR the Proposal. Any Stockholder may revoke or change its proxy at any time
before the proxy is voted at the Special Meeting by (i) sending another properly
executed proxy bearing a later date or a written notice of revocation of the
proxy to the Secretary of the Company at the Company's principal executive
offices or (ii) voting in person at the Special Meeting.
COSTS OF PROXY SOLICITATION
The Company will bear the entire cost of this proxy solicitation, including the
preparation, assembly, printing and mailing of this Proxy Statement, the proxy
and any additional solicitation materials sent by the Company to Stockholders.
In addition, the Company may reimburse brokerage firms and other persons
representing beneficial owners of shares of Common Stock for their expenses in
forwarding the proxy materials to such beneficial owners. Proxies may be
solicited by Directors, officers and regular employees of the Company, without
additional compensation, personally or by telephone.
-2-
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Except where noted, the following table sets forth information, as of November
4, 2003, with respect to the beneficial ownership of the Company's Common Stock
by: (i) each Stockholder known by the Company to be the beneficial owner of more
than 5% of the Company's Common Stock; (ii) each person who is a director; (iii)
each executive officer required to be named in this Proxy Statement pursuant to
the Proxy rules; and (iv) all executive officers and directors as a group.
Unless otherwise noted, the persons named in the table have sole voting and
investment power with respect to all shares shown as beneficially owned by him
or her.
Shares Beneficially Owned
------------------------------------------------
Percent
of
Number Right to Outstanding
Beneficial Owner Owned Acquire (1) Shares (2)
--------------------------------------------------------------------------------
Perkins, Wolf, McDonnell 4,937,975 - 5.57%
& Company (3)
310 South Michigan Avenue
Chicago, IL 60604
--------------------------------------------------------------------------------
Robert A. Kotick (4) 1,948,622 4,016,935 6.44%
c/o Activision, Inc.
3100 Ocean Park Boulevard
Santa Monica, CA 90405
--------------------------------------------------------------------------------
Brian G. Kelly (5) 610,870 3,800,307 4.77%
--------------------------------------------------------------------------------
Ronald Doornink 60,000 1,083,437 1.27%
--------------------------------------------------------------------------------
William J. Chardavoyne 23,911 198,750 *
--------------------------------------------------------------------------------
Michael J. Rowe 4,500 108,750 *
--------------------------------------------------------------------------------
Lawrence Goldberg 3,772 247,685 *
--------------------------------------------------------------------------------
Kathy Vrabeck 5,911 155,625 *
--------------------------------------------------------------------------------
Steven T. Mayer, Director 322 67,876 *
--------------------------------------------------------------------------------
Barbara S. Isgur, Director 1,500 133,876 *
--------------------------------------------------------------------------------
Robert J. Morgado, Director 18,750 200,628 *
--------------------------------------------------------------------------------
Kenneth L. Henderson, Director 1,125 78,751 *
--------------------------------------------------------------------------------
All Directors and
Executive Officers as
a Group (13 persons) 2,906,025 10,298,120 13.34%
--------------------------------------------------------------------------------
*Percent of class less than 1%.
(1) Shares that can be acquired within 60 days through the exercise of options
or warrants.
(2) The outstanding shares was computed based on 88,676,227 shares of the
Company's Common Stock outstanding as of November 4, 2003 and, in each
individual's case, the number of shares of the Company's Common Stock
issuable upon the exercise of the warrants or options exercisable within 60
days held by such individual, but does not include the number of shares of
Common Stock issuable upon the exercise of any other outstanding Director
or employee warrants or options or, in the case of all Directors and
Executive Officers as a Group, the number of shares of the Company's Common
Stock issuable upon the exercise of warrants or options exercisable within
60 days held by all such individuals.
(3) The Schedule 13F filed by Perkins, Wolf, McDonnell & Company with the
Securities and Exchange Commisssion for the period ended September 30, 2003
indicates that it was the beneficial owner of 4,937,975 shares of Common
Stock.
(4) Includes 42,166 shares owned directly by Delmonte Investments, L.L.C., of
which Mr. Kotick is a controlling person. Does not include options to
purchase 91,551 shares of Common Stock transferred by Mr. Kotick to an
irrevocable trust for the benefit of his minor children with respect to
which Mr. Kotick disclaims beneficial ownership. Includes options to
purchase 2,205,862 shares of Common Stock held by 1011 Partners, LLC of
which Mr. Kotick and his spouse are the sole members.
(5) Includes 42,166 shares owned directly by Delmonte Investments, L.L.C., of
which Mr. Kelly is a controlling person.
-3-
PROPOSAL
Approval of Amendment to Amended and Restated Certificate of Incorporation, as
Amended, to Increase Authorized Shares
The Stockholders are being asked to approve an amendment to the Company's
Amended and Restated Certificate of Incorporation, as amended (the
"Certificate"), to increase the number of authorized shares of Common Stock from
125,000,000 to 225,000,000. The Board in November 2003 adopted resolutions
approving and authorizing the amendment and directing that the amendment be
submitted to a vote of the Stockholders at a Special Meeting. The Board
determined that the amendment is in the best interests of the Company and its
Stockholders and unanimously recommends approval by the Stockholders. If the
proposed amendment is approved by the Stockholders, the Board currently intends
to file with the Secretary of State of the State of Delaware a Certificate of
Amendment to the Certificate reflecting such amendment as soon as practicable
following Stockholder approval.
At the Company's 2003 Annual Meeting of Stockholders, a proposal was made to
increase the authorized shares of Common Stock. The proposal also provided for
an increase in the number of authorized shares of Series A Junior Preferred
Stock. That proposal was not approved. The Proposal submitted at this Special
Meeting provides only for an amendment to the Certificate to increase the
authorized shares of Common Stock. It does not include any change to the
Preferred Stock or the Series A Junior Preferred Stock.
The Certificate currently authorizes the issuance of up to 130,000,000 shares of
stock, of which 125,000,000 shares are designated as Common Stock and 5,000,000
shares are designated as Preferred Stock. Of the 5,000,000 shares of Preferred
Stock authorized, 1,250,000 shares have been designated as Series A Junior
Preferred Stock. No shares of Preferred Stock or Series A Junior Preferred Stock
are issued and outstanding. The proposed amendment will not, if adopted, result
in an increase in the number of authorized shares of Series A Junior Preferred
Stock or an increase in the total number of authorized shares of Preferred
Stock. Of the 125,000,000 shares of Common Stock currently authorized, as of the
close of business on November 4, 2003, there were 88,676,227 shares issued and
outstanding. In addition, as of November 4, 2003, the Company has reserved up to
approximately 112,500 shares of Common Stock for issuance upon the exercise of
outstanding warrants, 579,800 shares of Common Stock for issuance pursuant to
the Company's employee stock purchase plans and 20,987,600 shares of Common
Stock for issuance pursuant to the Company's current incentive compensation
plans and programs.
The Board of Directors has proposed this amendment to ensure that the Company
has sufficient shares available for general corporate purposes including,
without limitation, equity financings, acquisitions, establishing strategic
relationships with corporate partners, providing equity incentives to employees,
and payments of stock dividends, stock splits or other recapitalizations. The
Company recently completed the payment of a stock dividend in the form of a
three-for-two stock split, which significantly increased the number of shares of
Common Stock outstanding and the number reserved for issuance, thus
necessitating the need to increase the number of authorized shares of the
Company. The Company considers from time to time acquisitions, equity
financings, strategic relationships and other transactions as market conditions
or other opportunities arise. The Company's management has no present
arrangements, agreements, understandings or plans for the issuance or use of the
additional shares of Common Stock proposed to be authorized by the amendment.
If the Stockholders approve the proposed amendment, the Board may cause the
issuance of additional shares of Common Stock without further vote of the
Stockholders of the Company, except as may be required in particular cases by
the Company's charter documents, applicable law or the rules of any national
securities exchange on which shares of Common Stock of the Company may then be
listed. Under the Company's Certificate, the Company's Stockholders do not have
preemptive rights to subscribe to additional securities that may be issued by
the Company, which means that current Stockholders do not have a prior right to
purchase any new issue of capital stock of the Company in order to maintain
their proportionate ownership of Common Stock. In addition, if the Board elects
to cause the Company to issue additional shares of Common Stock or securities
-4-
convertible into or exercisable for Common Stock, such issuance could have a
dilutive effect on the voting power and earnings per share of existing
Stockholders.
The increase in the number of authorized shares of Common Stock could have an
anti-takeover effect, although this is not the intent of the Board in proposing
the amendment. For example, if the Board issues additional shares in the future,
such issuance could dilute the voting power of a person seeking control of the
Company, thereby deterring or rendering more difficult a merger, tender offer,
proxy contest or an extraordinary transaction opposed by the Board of Directors.
As of the date of this Proxy Statement, the Board is not aware of any attempt or
plan to obtain control of the Company.
If approved, the amendment would amend and restate Article Fourth of the
Certificate as follows:
"FOURTH: The total number of shares of capital stock which the Corporation
shall have authority to issue is two hundred and thirty million
(230,000,000) shares, of which five million (5,000,000) shares are
designated Preferred Stock, par value $.000001 per share and aggregate par
value of five dollars ($5.00) ("Preferred Stock"), and of which two hundred
twenty-five million (225,000,000) shares are designated Common Stock, par
value $.000001 per share and aggregate par value of two hundred twenty-five
dollars ($225.00) ("Common Stock"). Of the 5,000,000 shares of Preferred
Stock, one million one hundred and twenty-five thousand (1,125,000) shares
are designated Series A Junior Preferred Stock, par value $.000001 per
share and aggregate par value of one dollar and one hundred twenty-five
thousandth cents ($1.125)."
The affirmative vote of a majority of the outstanding shares of Common Stock is
required for approval of the proposed amendment.
The Board recommends that you vote FOR the proposed Amendment
to the Amended and Restated Certificate of Incorporation, as amended.
STOCKHOLDER PROPOSALS FOR 2004 ANNUAL MEETING
Pursuant to Rule 14a-8 under the Exchange Act, Stockholders may present proper
proposals for inclusion in the Company's proxy statement and for consideration
at the 2004 Annual Meeting of Stockholders by submitting their proposals to the
Company in a timely manner. In order to be so included for the next Annual
Meeting, Stockholder proposals must be received by the Company no later than
March 29, 2004 and must otherwise comply with the requirements of Rule 14a-8.
In addition, the Company's By-laws have an advance notice procedure with regard
to nominations for the election of directors and business proposals to be
brought before an Annual Meeting of Stockholders by any Stockholder. In general,
any Stockholder may nominate one or more persons for election as directors or
propose business to be brought before an annual meeting, or both, only if such
Stockholder has given timely notice in proper written form of such nomination or
nominations or business proposal, setting forth certain specified information
relating to such Stockholder and his or her nominations or business proposal. To
be timely, notice must be received by the Company's Secretary at least 60 (but
not more than 90) days before the Annual Meeting of Stockholders to be held in
2004; provided, however, that if less than 70 days' notice or prior public
disclosure of the date of the 2004 Annual Meeting is given or made to
Stockholders, notice by the Stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which
notice of the date of the 2004 Annual Meeting was mailed or such public
disclosure was made, whichever occurs first. We currently plan to hold our 2004
Annual Meeting of Stockholders in September 2004.
OTHER MATTERS
The Board of Directors knows of no matters other than those described in this
Proxy Statement that are likely to come before the Special Meeting.
On July 11, 2003, we were informed by the staff of the Securities and Exchange
Commission (the "SEC") that the SEC has commenced a non-public formal
investigation captioned "In the Matter of Certain Video Game Manufacturers and
Distributors". The investigation appears to be focused on certain accounting
practices common to the interactive entertainment industry, with specific
emphasis on revenue recognition. In connection with this inquiry, in July 2003,
the SEC submitted to us a request for information. We responded to this on
September 2, 2003. The SEC staff also informed us that other companies in the
video game industry received similar requests for information. We have
cooperated and intend to continue to cooperate fully with the SEC in the conduct
of this inquiry.
STOCKHOLDERS ARE URGED TO FORWARD THEIR PROXY CARDS WITHOUT DELAY.
A PROMPT RESPONSE WILL BE GREATLY APPRECIATED.
By Order of the Board of Directors,
/s/ George L. Rose
---------------------
George L. Rose
Secretary
ACTIVISION, INC.
THIS PROXY IS SOLICITED ON BEHALF OF
THE BOARD OF DIRECTORS
The undersigned Stockholder of Activision, Inc., a Delaware corporation (the
"Company"), hereby appoints Robert A. Kotick, Brian G. Kelly, Ronald Doornink
and each of them, as proxy for the undersigned, with full power of substitution,
to vote and otherwise represent all the shares of Common Stock of the Company
that the undersigned is entitled to vote at the Special Meeting of Stockholders
of the Company to be held on [ ], December [ ], 2003 at the offices of Bryan
Cave LLP, 120 Broadway, Suite 300, Santa Monica, California 90401, and at any
adjournment(s) or postponement(s) thereof, with the same effect as if the
undersigned were present and voting such shares, on the matters and in the
manner set forth below and as further described in the accompanying Proxy
Statement. The undersigned hereby revokes any proxy previously given with
respect to such shares. The undersigned acknowledges receipt of the Notice of
Special Meeting of Stockholders and the accompanying Proxy Statement.
THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED IN ACCORDANCE WITH THE
SPECIFICATIONS MADE. IF THIS PROXY IS EXECUTED BUT NO SPECIFICATION IS MADE, THE
SHARES REPRESENTED BY THIS PROXY WILL BE VOTED FOR THE PROPOSAL AND IN THE
DISCRETION OF THE PROXY HOLDERS ON ANY ADJOURNMENT(S) OR POSTPONEMENT(S)
THEREOF.
1. The approval of the proposed amendment to the Amended and Restated
Certificate of Incorporation.
o FOR o AGAINST o ABSTAIN
o MARK HERE IF YOU PLAN TO ATTEND THE MEETING
Please sign exactly as name appears hereon and date. If the shares are held
jointly, each holder should sign. When signing as an attorney, executor,
administrator, trustee, guardian or as an officer signing for a corporation,
please give full title under signature.
Dated ,2003
Signature
Signature, if held jointly
Votes must be indicated by filling in (x) in black or blue ink.
Sign, Date and Return the Proxy Card Promptly Using the Enclosed Envelope