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As filed with the Securities and Exchange Commission on June 21, 1999
Registration No. 333-
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACTIVISION, INC.
(Exact name of issuer as specified in its charter)
Delaware 94-2606438
(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)
Expert Software, Inc. Amended and Restated 1992 Stock Option Plan
Expert Software, Inc. 1997 Stock Option Plan for Directors
Expert Software, Inc. 1997 Stock Option Plan for Officers and Employees
(Full title of the plan)
Robert A. Kotick
Chairman of the Board
Activision, Inc.
3100 Ocean Park Boulevard
Santa Monica, California 90405
(310) 255-2000
(Name, address and telephone number of agent for service)
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
- --------------------------------------------------------------------------
Title of Proposed
Each Maximum Proposed
Class of Offering Maximum Amount
Securities Amount Price Aggregate of
to be to be Per Offering Registration
Registered Registered Share(1) Price(1) Fee
- --------------------------------------------------------------------------
Common Stock,
par value
$.000001
per share 421,959(2) $6.45 $2,722,314 $757.00
- ---------------------------------------------------------------------------
(1) Based on the weighted average exercise price of all outstanding stock
options under the Expert Software, Inc. stock option plans.
(2) The shares covered by this Registration Statement represent the
underlying stock for the stock options granted by Expert Software, Inc.
under stock option plans of Expert which plans are being assumed by
registrant in connection with the acquisition of Expert Software, Inc.
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 participants in the Expert
Software, Inc. Amended and Restated 1992 Stock Option Plan, 1997 Stock Option
Plan for Directors and 1997 Stock Option Plan for Officers and Employees, 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 year ended March 31, 1998.
2. Proxy Statement dated August 7, 1998.
3. Quarterly Report on Form 10-Q for the period ended June 30,
1998.
4. Quarterly Report on Form 10-Q for the period ended September
30, 1998.
5. Quarterly Report on Form 10-Q for the period ended December
31, 1998.
6. Current Report on Form 8-K filed with the Commission on July
1, 1998.
7. Current Report on Form 8-K filed with the Commission on
October 8, 1998.
8. Current Report on Form 8-K filed with the Commission on March
10, 1999.
9. Current Report on Form 8-K filed with the Commission on April
29, 1999.
10. Description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-3, Registration No.
333-46425.
All documents filed subsequent to the filing date of this
Registration Statement with the Commission by the Company pursuant to Section
13(a), 13(c), 14 or 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 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 and paragraph 5 of Article VII of the Company's
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 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 By-laws currently
provide that the Company shall indemnify its directors and officers to the
fullest extent permitted by the DGCL.
Paragraph A of Article SIXTH of the Amended and Restated
Certificate of Incorporation 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.
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.
3.1 Amended and Restated Certificate of Incorporation of Activision,
Inc., dated October 15, 1992 (incorporated by reference to Exhibit
4.5 of Amendment No. 1 to the Company's Registration Statement on
Form S-8, Registration No. 33-48411).
3.2 Bylaws of Activision, Inc. (incorporated by reference to Exhibit
4.6 of Amendment No. 1 to the Company's Registration Statement on
Form S-8, Registration No. 33-48411).
3.3 Certificate of Amendment of Amended and Restated Certificate of
Incorporation of Activision, Inc., dated August 22, 1996
(incorporated by reference to Exhibit 3.3 of the Company's
Registration Statement on Form S-8, Registration No. 333-40727).
4.1 Expert Software, Inc. Amended and Restated 1992 Stock Option Plan
(incorporated by reference to Exhibit 10.6 of Expert Software,
Inc.'s Registration Statement on Form S-1, Registration No. 33-
89758).
4.2 Expert Software, Inc. 1997 Stock Option Plan for Directors
(incorporated by reference to Exhibit 99.1 of Expert Software,
Inc.'s Registration Statement on Form S-8, Registration No. 333-
79207).
4.3 Expert Software, Inc. 1997 Stock Option Plan for Officers and
Employees (incorporated by reference to Exhibit 99.1 of Expert
Software, Inc.'s Registration Statement on Form S-8, Registration
No. 333-79205).
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 KPMG Peat Marwick LLP
23.2 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.
1. The undersigned registrant hereby undertakes:
(a) 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");
(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)(a)(i) and (1)(a)(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 by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), that are incorporated by reference in
this Registration Statement.
(b) 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.
(c) 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.
2. 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 Section 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.
3. 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.
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 Los Angeles, State of
California, on the 21st day of June, 1999.
ACTIVISION, INC.
By:/s/ Robert A. Kotick
---------------------------
Robert A. Kotick, Co-Chairman
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Robert A. Kotick and Brian
G. Kelly, 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, 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 June 21, 1999
- ---------------------- (Principal Executive Officer)
(Robert A. Kotick) and Director
/s/ Brian G. Kelly Chief Operating Officer, June 21, 1999
- ---------------------- President and Director
(Brian G. Kelly)
/s/ Barry J. Plaga Chief Financial Officer June 21, 1999
- ---------------------- (Principal Financial and
(Barry J. Plaga) Accounting Officer)
/s/ Harold A. Brown Director June 21, 1999
- ----------------------
(Harold A. Brown)
/s/ Barbara S. Isgur Director June 21, 1999
- ----------------------
(Barbara S. Isgur)
/s/ Steven T. Mayer Director June 21, 1999
- ----------------------
(Steven T. Mayer)
/s/ Robert J. Morgado Director June 21, 1999
- ----------------------
(Robert J. Morgado)
EXHIBIT INDEX
No. Document Page
3.1 Amended and Restated Certificate of Incorporation of
Activision, Inc., dated October 15, 1992 (incorporated by
reference to Exhibit 4.5 of Amendment No. 1 to the Company's
Registration Statement on Form S-8, Registration No. 33-
48411).
3.2 Bylaws of Activision, Inc. (incorporated by reference to
Exhibit 4.6 of Amendment No. 1 to the Company's Registration
Statement on Form S-8, Registration No. 33-48411).
3.3 Certificate of Amendment of Amended and Restated Certificate
of Incorporation of Activision, Inc., dated August 22, 1996
(incorporated by reference to Exhibit 3.3 of the Company's
Registration Statement on Form S-8, Registration No. 333-
40727).
4.1 Expert Software, Inc. Amended and Restated 1992 Stock Option
Plan (incorporated by reference to Exhibit 10.6 of Expert
Software, Inc.'s Registration Statement on Form S-1,
Registration No. 33-89758).
4.2 Expert Software, Inc. 1997 Stock Option Plan for Directors
(incorporated by reference to Exhibit 99.1 of Expert
Software, Inc.'s Registration Statement on Form S-8,
Registration No. 333-79207).
4.3 Expert Software, Inc. 1997 Stock Option Plan for Officers and
Employees (incorporated by reference to Exhibit 99.1 of
Expert Software, Inc.'s Registration Statement on Form S-8,
Registration No. 333-79205).
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 KPMG Peat Marwick LLP.
23.2 Consent of Robinson Silverman Pearce Aronsohn & Berman LLP
(included as part of Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN LLP
1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104
(212) 541-2000
June 21, 1999
Activision, Inc.
3100 Ocean Park Boulevard
Santa Monica, California 90405
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Activision, Inc., a Delaware
corporation (the "Company"), on or about the date hereof with the Securities
and Exchange Commission (the "Commission") in connection with the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of 421,959 shares of the Company's common stock, $.000001 par value
per share (the "Common Stock"), reserved for issuance pursuant to the terms
of Expert Software, Inc.'s Amended and Restated 1992 Stock Option Plan, 1997
Stock Option Plan for Directors and 1997 Stock Option Plan for Officers and
Employees (the "Plans").
We are familiar with the Amended and Restated Certificate of
Incorporation, as amended, and the By-laws of the Company and have examined
copies of the Plans, the Amended and Restated Agreement and Plan of Merger,
dated as of April 19, 1999, among Expert Software, Inc., the Company and
Expert Acquisition Corp.,the resolutions adopted by the Company's Board of
Directors, and originals or copies, certified or otherwise identified to our
satisfaction, of such other documents, evidence of corporate action,
certificates and other instruments, and have made such other investigations
of law and fact, as we have deemed necessary or appropriate for the purposes
of this opinion.
Based upon the foregoing, it is our opinion that the 421,959 shares
of Common Stock reserved for issuance pursuant to the terms of the Plans have
been duly authorized and, when issued in accordance with the terms of the
Plans and in accordance with Awards that have been or may be granted under
and in conformity with the Plans ("Awards") and upon payment of the purchase
price therefor, if any, provided for any Common Stock issued pursuant to such
Awards, will be validly issued, fully paid and non-assessable by the Company.
We hereby consent to the use of this opinion in the Registration
Statement. In giving this consent, we do not thereby admit that we come
within the category of persons whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ Robinson Silverman Pearce
Aronsohn & Berman LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Activision, Inc.:
We consent to the use of our report incorporated herein by reference.
KPMG LLP
Los Angeles, California
June 21, 1999