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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 11, 1997
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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GT INTERACTIVE SOFTWARE CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 13-3689915
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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16 EAST 40TH STREET
NEW YORK, NEW YORK 10016
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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GT INTERACTIVE SOFTWARE CORP.
1997 STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
RONALD CHAIMOWITZ
16 EAST 40TH STREET
NEW YORK, NEW YORK 10016
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(212) 726-6500
(TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
DAVID P. LEVIN, ESQ.
KRAMER, LEVIN, NAFTALIS & FRANKEL
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 715-9100
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE FEE
<S> <C> <C> <C> <C>
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Common Stock, par value $.01
per share................... 4,000,000 shares $9.9375 $39,750,000 $12,046
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933, as amended, based upon the
average of the high and low sales prices for the Common Stock reported on
the Nasdaq National Market on August 5, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference in this Registration
Statement the following documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 (File No. 0-27338), filed pursuant to Section 13(a)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Registrant's Current Report on Form 8-K, dated February 10,
1997, filed pursuant to Section 13(a) of the Exchange Act;
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997, filed pursuant to Section 13(a) of the
Exchange Act; and
(d) The Registrant's Registration Statement on Form 8-A, filed
pursuant to Section 12(g) of the Exchange Act, which contains a description
of the Registrant's Common Stock, including any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters 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 filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock offered hereby has been passed
upon for the Registrant by Kramer, Levin, Naftalis & Frankel. At July 31, 1997,
certain members of, and persons associated with, such firm owned an aggregate of
25,662 shares of Common Stock of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which permits a corporation in its certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's fiduciary duty of loyalty to the
corporation or its stockholders (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions), or
(iv) for any transaction from which the director derived an improper personal
benefit. The Registrant's Amended and Restated Certificate of Incorporation
contains provisions permitted by Section 102(b)(7) of the DGCL.
Reference is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including directors and officers, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative
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(other than an action by or in the right of such corporation), by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such director,
officer, employee or agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interests and, with
respect to any criminal action or proceedings, had no reasonable cause to
believe that his conduct was unlawful. A Delaware corporation may indemnify
directors and/or officers in an action or suit by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the director or officer is adjudged to be
liable to the corporation. Where a director or officer is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him or her against the expenses which such director
or officer actually and reasonably incurred.
The Registrant's Amended and Restated Certificate of Incorporation provides
for indemnification of directors and officers of the Registrant to the fullest
extent permitted by the DGCL. The Registrant also maintains liability insurance
for each director and officer for certain losses arising from claims or charges
made against them while acting in their capacities as directors or officers of
the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 filed as part of the Registrant's Annual Report on Form
10-K for the year ended December 31, 1995).
4.2 Amended and Restated By-laws of the Registrant (incorporated by reference to Exhibit
3.2 filed as part of the Registrant's Registration Statement on Form S-1,
Registration No. 333-14441).
5 Opinion of Kramer, Levin, Naftalis & Frankel.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Kramer, Levin, Naftalis & Frankel (contained in the opinion filed as
Exhibit 5 hereto).
24 Power of Attorney (included on the signature page of this Registration Statement).
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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 to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the 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 the 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.
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The undersigned Registrant hereby 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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the 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, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange 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, 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 New York, State of New York on this 11th day of
August, 1997.
GT INTERACTIVE SOFTWARE CORP.
By: /s/ RONALD CHAIMOWITZ
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Name: Ronald Chaimowitz
Title: President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Joseph J. Cayre, Ronald Chaimowitz and
Jack J. Cayre 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 or all amendments to this registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto 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 in and about the
premises, as fully for 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 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 on August 11,
1997 in the capacities indicated.
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SIGNATURE TITLE(S)
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/s/ JOSEPH J. CAYRE Chairman of the Board
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Joseph J. Cayre
/s/ ANDREW GREGOR Senior Vice President, Finance and Administration,
- ---------------------------------------- and Chief Financial Officer (Principal Financial
Andrew Gregor and Accounting Officer)
/s/ RONALD CHAIMOWITZ President, Chief Executive Officer and Director
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Ronald Chaimowitz
/s/ JACK J. CAYRE Executive Vice President, Director
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Jack J. Cayre
/s/ KENNETH CAYRE Director
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Kenneth Cayre
/s/ STANLEY J. CAYRE Director
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Stanley J. Cayre
/s/ STEVEN A. DENNING Director
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Steven A. Denning
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SIGNATURE TITLE(S)
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<C> <S>
/s/ WILLIAM E. FORD Director
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William E. Ford
/s/ JORDAN A. LEVY Director
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Jordan A. Levy
/s/ ALVIN N. TELLER Director
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Alvin N. Teller
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EXHIBIT 5
August 8, 1997
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to GT Interactive Software Corp., a Delaware
corporation (the "Registrant"), in connection with the preparation and filing of
a Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission"), with respect to the
registration under the Securities Act of 1933, as amended (the "Act"), of an
aggregate of 4,000,000 shares (the "Shares") of common stock, par value $.01 per
share, to be issued pursuant to the Registrant's 1997 Stock Incentive Plan (the
"Plan").
In connection with the registration of the Shares, we have reviewed copies
of the Registration Statement, the Plan, the Amended and Restated Certificate of
Incorporation and the Amended and Restated By-laws of the Registrant, and such
other documents and records as we have deemed necessary to enable us to express
an opinion on the matters covered hereby. In rendering this opinion, we have (a)
assumed (i) the genuineness of all signatures on all documents examined by us,
(ii) the authenticity of all documents submitted to us and (iii) the conformity
to original documents of all documents submitted to us as photostatic or
conformed copies and the authenticity of the originals of such copies; and (b)
relied on (i) certificates of public officials and (ii) as to matters of fact,
statements and certificates of officers and representatives of the Registrant.
Based upon the foregoing, we are of the opinion that the Shares covered by
the Registration Statement, following the granting of the options and restricted
stock described in the Plan and upon delivery of such Shares and payment
therefor at the prices and in accordance with the terms stated in the Plan, will
be validly issued, fully paid and non-assessable.
At July 31, 1997, certain members of, and persons associated with, this
firm owned an aggregate of 25,662 shares of Common Stock of the Registrant. Such
information is also disclosed in Item 5 of Part II of the Registration
Statement.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name in Item 5 of Part II in the
Registration Statement. In giving the foregoing consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission thereunder.
We are delivering this opinion to the Registrant, and no person other than
the Registrant may rely upon it.
Very truly yours,
KRAMER, LEVIN, NAFTALIS & FRANKEL
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated
February 7, 1997, included in GT Interactive Software Corp.'s Annual Report on
Form 10-K for the year ended December 31, 1996 and to all references to our firm
included in this Registration Statement.
ARTHUR ANDERSEN LLP
New York, New York
August 7, 1997
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of GT Interactive Software Corp. relating to its 1997 Stock
Incentive Plan filed with the Securities and Exchange Commission of our report
dated May 10, 1996, with respect to the financial statements of WizardWorks
Group, Inc. (not presented separately in such report), included in GT
Interactive Software Corp.'s Annual Report on Form 10-K for the fiscal year
ended December 31, 1996.
ERNST & YOUNG LLP
Minneapolis, Minnesota
August 7, 1997
