As filed with the Securities and Exchange Commission on September 26, 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)
Activision, Inc. 2002 Executive Incentive Plan
(Full title of the plan)
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)
Copies to:
Kenneth L. Henderson, Esq.
Bryan Cave 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 2,500,000(3) $24.63 $61,575,000 $5,664.90(4)
value $.000001
per share (2)
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(1) Estimated solely for purposes of calculating the registration fee. Pursuant
to Rules 457(c) and (h), the Proposed Maximum Offering Price Per Share and
the Proposed Maximum Aggregate Offering Price are computed on the basis of
the average of the high and low prices for such security on September 23,
2002, as reported on the Nasdaq National Market.
(2) Each share of common stock includes a right to purchase one 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 the stock options, restricted stock awards, stock appreciation
rights and other stock-based awards to be granted by the registrant under
its 2002 Executive Incentive Plan.
(4) Pursuant to Rule 457(p) of the Securities Act of 1933, as amended, the
registration fee of $5,664.90 is offset against the $57,141 registration
fee (of which $11,527.42 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 participants in the 2002 Executive
Incentive Plan 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, 2002.
2. Amendment No.1 to Proxy Statement dated August 22, 2002, as filed with
the Commission on August 14, 2002.
3. Proxy Statement dated August 22, 2002, as filed with the Commission on
July 29, 2002.
4. Quarterly Report on Form 10-Q for the quarterly period ended June 30,
2002.
5. Current Report on Form 8-K filed with the Commission on August 14,
2002.
6. 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.
7. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since March 31, 2002.
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 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.
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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, 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.
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
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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. 2002 Executive Incentive Plan, including form of Stock
Option Agreement.
5.1 Opinion of Bryan Cave 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 Bryan Cave 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 Exchange Act that are incorporated by
reference in this Registration Statement.
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(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.
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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 19th day
of September, 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 September 19, 2002
------------------------- and Director
Robert A. Kotick
/s/ Brian G. Kelly Co-Chairman and Director September 19, 2002
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Brian G. Kelly
/s/ Ronald Doornink President, Activision, Inc.; September 19, 2002
-------------------------- Chief Executive Officer,
Ronald Doornink Activition Publishing, Inc.
(Principal Executive Officer)
/s/ William J. Chardavoyne Executive Vice President and September 23, 2002
-------------------------- Chief Financial Officer (Principal
William J. Chardavoyne Financial and Accounting Officer)
/s/ Kenneth L. Henderson Director September 19, 2002
--------------------------
Kenneth L. Henderson
/s/ Barbara S. Isgur Director September 19, 2002
--------------------------
Barbara S. Isgur
/s/ Steven T. Mayer Director September 19, 2002
--------------------------
Steven T. Mayer
/s/ Robert J. Morgado Director September 19, 2002
--------------------------
Robert J. Morgado
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EXHIBIT INDEX
No. Document
4.1 Activision, Inc. 2002 Executive Incentive Plan, including form of Stock
Option Agreement.
5.1 Opinion of Bryan Cave 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 Bryan Cave LLP (included as part of Exhibit 5.1)
24.1 Power of Attorney (included on signature page)