As filed with the Securities and Exchange Commission on August 11, 1998
Registration No. 333-___
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)
Delaware 13-3689915
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
417 Fifth Avenue
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
417 Fifth Avenue
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
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed
Maximum Proposed
Offering Maximum Amount of
Title of Securities to Amount to be Price Per Aggregate Registration
be Registered Registered Share(1) Offering Price Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 4,000,000 shares $6.4375 $25,750,000 $7,597
====================================================================================================================================
</TABLE>
(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 7, 1998.
<PAGE>
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose
of registering an additional 4,000,000 shares of the Registrant's Common Stock,
par value $.01 per share, to be issued pursuant to the Registrant's 1997 Stock
Incentive Plan, as amended. The contents of the Registrant's Registration
Statement on Form S-8 (File No. 333-33353), relating to the 1997 Stock Incentive
Plan, are incorporated herein by reference.
2
<PAGE>
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, 1997 (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 Transition Report on Form 10-K for the transition
period from January 1, 1998 to March 31, 1998 (File No. 0-27338), filed pursuant
to Section 13(a) of the Exchange Act;
(c) The Registrant's Current Report on Form 8-K, filed March 4, 1998,
pursuant to Section 13(a) of the Exchange Act;
(d) The Registrant's Current Report on Form 8-K/A, filed May 7, 1998,
pursuant to Section 13(a) of the Exchange Act;
(e) The Registrant's Current Report on Form 8-K, filed July 22, 1998,
pursuant to Section 13(a) of the Exchange Act;
(f) The Registrant's Current Report on Form 8-K, filed August 5, 1998,
pursuant to Section 13(a) of the Exchange Act;
(g) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1998, filed pursuant to Section 13(a) of the Exchange
Act; and
(h) 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. Certain
members of, and persons associated with, such firm own an aggregate of 24,662
shares of Common Stock.
-3-
<PAGE>
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, as
amended, 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 (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, as
amended, 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.
Exhibit Number Description
4.1 Amended and Restated Certificate of Incorporation
of the Registrant and Certificate of Amendment of
the Amended and Restated Certificate of
Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 filed as part of the
Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 1998).
4.2 Amended and Restated By-laws of the Registrant (as
amended on July 23, 1998)(incorporated by
reference to Exhibit 3.2 filed as
-4-
<PAGE>
part of the Registrant's Quarterly Report on Form
10-Q for the fiscal quarter ended June 30, 1998).
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).
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.
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.
-5-
<PAGE>
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, 1998.
GT INTERACTIVE SOFTWARE CORP.
By: /s/ Ronald Chaimowitz
---------------------
Name: Ronald Chaimowitz
Title: Chairman of the Board of Directors
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 in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
--------- -------- ----
<S> <C> <C>
/s/ Joseph J. Cayre Chariman Emeritus of the Board of August 11, 1998
- ------------------------------------------------ Directors
Joseph J. Cayre
/s/ Andrew Gregor Senior Vice President, Finance and August 11, 1998
- ------------------------------------------------ Administration, and Chief
Andrew Gregor Financial Officer (Principal
Financial and Accounting Officer)
/s/ Ronald Chaimowitz Chairman of the Board of Directors August 11, 1998
- ------------------------------------------------ and Chief Executive Officer
Ronald Chaimowitz
/s/ Jack J. Cayre Executive Vice President, Director August 11, 1998
- ------------------------------------------------
Jack J. Cayre
/s/ Stanley Cayre Director August 11, 1998
- -----------------------------------------------
Stanley Cayre
/s/ Steven A. Denning Director August 11, 1998
- -----------------------------------------------
Steven A. Denning
<PAGE>
/s/ William E. Ford Director August 11, 1998
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William E. Ford
/s/ Jordan A. Levy Director August 11, 1998
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Jordan A. Levy
/s/ Alvin N. Teller Director August 11, 1998
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Alvin N. Teller
/s/ Philip J. Riese Director August 11, 1998
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Phillip J. Riese
</TABLE>
[LETTERHEAD OF KRAMER, LEVIN, NAFTALIS & FRANKEL]
August 11, 1998
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 ("Common Stock"), to be issued pursuant to the Registrant's 1997 Stock
Incentive Plan (the "Plan"). The Shares represent additional shares of Common
Stock which were authorized to be issued under the Plan by the Board of
Directors and the stockholders of the Registrant in April and June, 1998,
respectively.
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, as amended, and the By-laws, as amended, 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
<PAGE>
KRAMER, LEVIN, NAFTALIS & FRANKEL
Securities and Exchange Commission
August 11, 1998
Page 2
signatures on all documents examined by us, (ii) the authenticity of all
documents submitted to us as originals, 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.
As of the date hereof, certain members of, and persons associated with,
this firm owned an aggregate of 24,662 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,
/s/KRAMER, LEVIN, NAFTALIS & FRANKEL
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 May 21, 1998, included in GT Interactive Software Corp.'s
Transition Report on Form 10-K for the transition period from January 1, 1998 to
March 31, 1998 and of our report dated February 13, 1998, included in GT
Interactive Software Corp.'s Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 and to all references to our Firm included in this
registration statement.
/s/ARTHUR ANDERSEN LLP
New York, New York
August 4, 1998
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 for the registration of 4,000,000 shares of common stock
of our report dated May 10, 1996, with respect to the financial statements of
WizardWorks Group, Inc. (not separately presented in such report), included in
the Transition Report on Form 10-K of GT Interactive Software Corp. for the
transition period from January 1, 1998 to March 31, 1998 and in the Annual
Report on Form 10-K of GT Interactive Software Corp. for the fiscal year ended
December 31, 1997.
/s/ERNST & YOUNG LLP
Minneapolis, Minnesota
August 4, 1998
