07331-00028/358919.3
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As filed with the Securities and Exchange Commission on September 24, 1996
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
ACTIVISION, INC.
(Exact name of Registrant as specified in Its Charter)
DELAWARE 94-2606438
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11601 WILSHIRE BOULEVARD
SUITE 1000
LOS ANGELES, CALIFORNIA 90025
(Address of Principal Executive Offices) (Zip Code)
ACTIVISION, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Robert A. Kotick
Chairman of the Board
Activision, Inc.
11601 Wilshire Boulevard
Suite 1000
Los Angeles, California 90025
(310) 473-9200
(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
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
TITLE OF SECURITIES AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE (1) FEE
- --------------------------------------------------------------------------------
Common Stock,
par value
$.000001 200,000 $13.875 $2,775,000 $956.90
- --------------------------------------------------------------------------------
<FN>
(1) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION
FEE PURSUANT TO RULES 457(C) AND 457(H) AND BASED UPON THE AVERAGE OF THE HIGH
AND LOW PRICES REPORTED ON THE NASDAQ NATIONAL MARKET ON SEPTEMBER 23, 1996.
</TABLE>
</PAGE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Items 1 and 2. Plan Information; Registrant Information and Employee Plan Annual
Information
The documents constituting the Prospectus of Activision, Inc., a
Delaware corporation (the "Company") with respect to this Registration Statement
in accordance with Rule 428 promulgated pursuant to the Securities Act of 1933,
as amended (the "Securities Act"), are kept on file at the offices of the
Registrant. The Registrant will provide without charge to employees, on the
written or oral request of any such person, a copy of any or all of the
documents constituting the Prospectus. Written requests for such copies should
be directed to Activision, Inc. Stock Administration Department, Activision,
Inc., 11601 Wilshire Boulevard, Suite 1000, Los Angeles, California 90025.
Telephone requests may be directed to (310) 473-9200.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company, with the Securities and
Exchange Commission (the "Commission") are incorporated in this Registration
Statement by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1996, filed with the Commission on July 8, 1996.
2. The Company's Proxy Statement dated August 1, 1996, filed
with the Commission on July 30, 1996.
3. The Company's Quarterly Report in Form 10-Q for the quarter
ended June 30, 1996, filed with the Commission on August 15, 1996.
4. 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 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 have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part thereof from the date of
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 subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
prior statement. Any such 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 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.
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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
4.1 Activision, Inc. Employee Stock Purchase Plan.
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 Independent Accountants, Coopers & Lybrand L.L.P.
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 pages of this Registration
Statement).
</PAGE>
<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;
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 the Registration Statement; notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective 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 the 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.
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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 SEC 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 Los Angeles, State of California, on this 24th day of
September, 1996.
ACTIVISION, INC.
(the "Company")
By: /s/ Robert A. Kotick
Robert A. Kotick, Chairman of the Board
and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Brian G. Kelly 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) 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 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 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.
Signature Title Date
/s/ Robert A. Kotick Chairman of the Board, September 24, 1996
(Robert A. Kotick) Chief Executive Officer
and Director
(Principal Executive Officer)
/s/ Brian G. Kelly Chief Operating Officer, September 24, 1996
(Brian G. Kelly) Chief Financial Officer,
Secretary and Director
(Principal Financial Officer)
/s/ Barry J. Plaga Vice President and Chief September 24, 1996
(Barry J. Plaga) Accounting Officer
(Principal Accounting Officer)
/s/ Howard E. Marks Executive Vice President September 24, 1996
(Howard E. Marks) and Director
/s/ Barbara S. Isgur Director September 24, 1996
(Barbara S. Isgur)
/s/ Steven T. Mayer Director September 24, 1996
(Steven T. Mayer)
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<PAGE>
EXHIBIT INDEX
No. Document Page
4.1 Activision, Inc. Employee Stock Purchase I-1
5.1 Opinion of Robinson Silverman Pearce II-1
Aronsohn & Berman LLP, counsel to the Company,
as to the legality of the Common Stock
being registered.
23.1 Consent of Independent Accountants, III-1
Coopers & Lybrand L.L.P.
23.2 Consent of Robinson Silverman Pearce II-2
Aronsohn & Berman LLP (included as part of
Exhibit 5.1)
24.1 Power of Attorney (included on signature 5
page).
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EXHIBIT 4.1
ACTIVISION, INC.
EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. ESTABLISHMENT OF PLAN. Activision, Inc., (the
"Company") proposes to grant options for purchase of the Company's common stock,
$.000001 par value ("Common Stock") to eligible employees of the Company and
Subsidiaries (as hereinafter defined) pursuant to this Employee Stock Purchase
Plan (the "Plan"). For purposes of this Plan, "parent corporation" and
"subsidiary corporation" (collectively, "Subsidiaries") shall have the same
meanings as "parent corporation" and "subsidiary corporation" in Sections 425(e)
and 425(f), respectively, of the Internal Revenue Code of 1986, as amended (the
"Code"). The Company intends that the Plan shall qualify as an "employee stock
purchase plan" under Section 423 of the Code (including any amendments or
replacements of such section), and the Plan shall be so construed. Any term not
expressly defined in the Plan but defined for purposes of Section 423 of the
Code shall have the same definition therein. A total of 200,000 shares of
Common Stock are reserved for issuance under the Plan. Such number shall be
subject to adjustments effected in accordance with Section 14 of the Plan.
SECTION 2. PURPOSES OF THE PLAN. The purpose of the Plan is to
provide employees of the Company and Subsidiaries designated by the Board of
Directors of the Company (the "Board") as eligible to participate in the Plan
with a convenient means to acquire an equity interest in the Company through
payroll deductions, to enhance such employees' sense of participation in the
affairs of the Company and Subsidiaries, and to provide an incentive for
continued employment.
SECTION 3. ADMINISTRATION OF THE PLAN. The Plan shall be
administered by a committee (the "Committee") appointed by the Board consisting
of two or more directors, each of whom is a "disinterested" director within the
meaning of Rule 16b-3(c)(2) promulgated under the Securities Exchange Act of
1934 (the "Exchange Act"). Subject to the provisions of the Plan and the
limitations of Section 423 of the Code or any successor provision in the Code,
all questions of interpretation or application of the Plan shall be determined
by the Committee and its decisions shall be final and binding upon all
participants. Members of the Committee shall receive no compensation for their
services in connection with the administration of the Plan, other than standard
fees as established from time to time by the Board for services rendered by
Board members serving on Board committees. All expenses incurred in connection
with the administration of the Plan shall be paid by the Company.
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<PAGE>
SECTION 4. ELIGIBILITY. Any employee of the Company or its
Subsidiaries is eligible to participate in an Offering Period (as hereinafter
defined) under the Plan except the following:
a.) employees who are not employed by the Company or Subsidiaries
on the fifteenth (15th) day of the month before the beginning of such
Offering Period;
b.) employees who are customarily employed for less than 20 hours
per week;
c.) employees who are customarily employed for less than five (5)
months in a calendar year;
d.) employees who, together with any other person whose stock
would be attributed to such employee pursuant to Section 424(d) of the
Code and Section 1.423-2(d) of the Treasury Regulations thereunder, own
stock or hold options to purchase stock or who, as a result of being
granted an option under the Plan with respect to such Offering Period,
would own stock or hold options to purchase stock possessing five percent
(5%) or more of the total combined voting power or value of all classes
of stock of the Company or any of its Subsidiaries; and
e.) employees who have been employed less than six months
on the first day of an Offering Period.
SECTION 5. OFFERING DATES. Each Offering Period under the Plan
(an "Offering Period") shall be of six (6) months duration. The first Offering
Period shall commence on October 1, 1996 and end on March 31, 1997. Thereafter,
offerings shall commence on the first business day on each subsequent April and
October and end on last business day of the following September and March,
respectively. The final offering under the Plan shall commence on October 1,
2001 and terminate on March 31, 2002. The first day of each Offering Period is
referred to as the "Offering Date". The last business day of each Offering
Period is referred to as the "Purchase Date". The Committee shall have the
power to change the duration of Offering Periods without stockholder approval if
such change is announced at least fifteen (15) days prior to the scheduled
beginning of the first Offering Period to be affected.
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SECTION 6. PARTICIPATION IN THE PLAN. Eligible employees may
become participants in an Offering Period under the Plan on the first Offering
Date after satisfying the eligibility requirements by delivering to the
Company's or Subsidiary's (whichever employs such employee) payroll department
(the "payroll department") not later than the 10th day of the month before such
Offering Date (unless a later time for filing a subscription agreement is set by
the Committee for all eligible employees with respect to a given Offering
Period) a subscription agreement authorizing payroll deductions. Once an
employee becomes a participant in an Offering Period, such employee will
automatically participate in subsequent Offering Periods unless the employee
withdraws from the Plan or terminates further participation in the Offering
Period as set forth in Section 11 below. Such participant is not required to
file any additional subscription agreements in order to continue participation
in the Plan. Any participant whose option expires and who has not withdrawn
from the Plan pursuant to Section 11 below will automatically be re-enrolled in
the Plan and granted a new option on the Offering Date of the next Offering
Period.
SECTION 7. GRANT OF OPTION ON ENROLLMENT. Enrollment by an
eligible employee in the Plan with respect to an Offering Period will constitute
the grant (as of the Offering Date) by the Company to such employee of an option
to purchase on each Purchase Date up to that number of shares of Common Stock of
the Company determined by dividing the amount accumulated in such employee's
payroll deduction account during such Offering Period by the "Purchase Price"
(as defined in Section 8 below) per share, provided, however, that the number of
shares of the Company's Common Stock subject to any option granted pursuant to
this Plan shall not exceed the lesser of (a) the maximum number of shares set by
the Committee pursuant to Section 10(a) below with respect to any Offering
Period, or (b) a number of shares (rounded down to the nearest whole number)
equal to $12,500 divided by the fair market of a share of the Company's Common
Stock on the Offering Date. Fair market value of a share of the Company's
Common Stock shall be determined as provided in Section 8 hereof.
SECTION 8. PURCHASE PRICE. The purchase price per share (the
"Purchase Price") at which a share of Common Stock will be sold in any Offering
Period shall be eighty-five percent (85%) of the lesser of:
a.) the fair market value on the Offering Date; or
b.) the fair market value on the Purchase Date.
For purposes of the Plan, the term "fair market value" on a given date
shall mean the closing bid from the previous day's trading of a share of the
Company's Common Stock as reported on the NASDAQ National Market System or a
national securities exchange on which the shares are traded. If the Common
Stock of the Company is not listed on a national securities exchange or reported
on the NASDAQ National Market, "fair market value" shall be the fair value
thereof determined in good faith by the Committee. In making such
determination, the Committee shall consider the financial conditions of the
Company and its recent operating results, values of publicly-traded securities
of other comparable institutions and the lack of liquidity of the Company's
shares, and such other factors as the Committee in its sole discretion deems
relevant.
</PAGE>
<PAGE>
SECTION 9. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS;
ISSUANCE OF SHARES.
a.) The purchase price of the shares is accumulated by regular payroll
deductions made during each Offering Period. The deductions are made as a
percentage of the employee's compensation in one percent (1%) increments not
less than two percent (2%) nor greater than ten percent (10%). Compensation
shall mean all W-2 compensation, including, but not limited to base salary,
wages, commissions, overtime, shift premiums and bonuses, plus draws against
commissions; provided, however, that for purposes of determining a participant's
compensation, any election by such participant to reduce his or her regular cash
remuneration under Sections 125 or 401(k) of the Code shall be treated as if the
participant did not make such election. Payroll deductions shall commence with
the first pay period following the Offering Date and shall continue to the end
of the Offering Period unless sooner altered or terminated as provided in the
Plan.
b.) A participant may lower (but not increase) the rate of payroll
deductions during an Offering Period by filing with the payroll department a new
authorization for payroll deductions, in which case the new rate shall become
effective for the next payroll period commencing more than 20 days after the
payroll department's receipt of the authorization and shall continue for the
remainder of the Offering Period unless changed as described below. Such change
in the rate of payroll deductions may be made at any time during an Offering
Period, but not more than one change may be made effective during an Offering
Period. A participant may increase or lower the rate of payroll deductions for
any subsequent Offering Period by filing with the payroll department a new
authorization for payroll deductions not later than the 10th day of the month
before the beginning of such Offering Period.
c.) All payroll deductions made for a participant are credited to his or
her account under the Plan and are deposited with the general funds of the
Company; no interest shall accrue on the payroll deductions. All payroll
deductions received or held by the Company may be used by the Company for any
corporate purpose, and the Company shall not be obligated to segregate such
payroll deductions. A participant may not make any separate cash payment into
his or her payroll deduction account and payment for shares purchased under the
Plan may not be made in any form other than by payroll deduction.
d.) On each Purchase Date, as long as the Plan remains in effect, the
Company shall apply the funds then in the participant's payroll account to the
purchase of whole shares of Common Stock reserved under the option granted to
such participant with respect to the Offering Period. The purchase price per
share shall be as specified in Section 8 of the Plan. Any cash remaining in a
participant's payroll account after such purchase of shares shall be refunded to
such participant in cash; except that any amount remaining in participant's
account on a Purchase Date solely because it is less than the amount necessary
to purchase a full share of Common Stock shall be carried forward, without
interest, into the next Offering Period. In the event that the Plan has been
oversubscribed, all funds not used to purchase shares on the Purchase Date shall
be returned, without interest, to the participant. No Common Stock shall be
purchased on a Purchase Date on behalf of any employee whose participation in
the Plan has terminated prior to such Purchase Date.
</PAGE>
<PAGE>
e.) Promptly following the end of each Offering Period, the number of
shares of Common Stock purchased by each participant shall be deposited into an
account established in the participant's name at a stock brokerage or other
financial services firm designated by the Company (the "ESPP Broker").
f.) During a participant's lifetime, such participant's option to purchase
shares hereunder is exercisable only by him or her. The participant will have
no interest or voting right in shares covered by his or her option until such
option has been exercised. Shares to be delivered to a participant under the
Plan will be registered in the name of the participant or in the name of the
participant and his or her spouse.
(g.) A participant shall be free to undertake a disposition (as such
term is defined in Section 424(c) of the Code) of the shares in his account at
the ESPP Broker at any time, whether by sale, exchange, gift, or other transfer
of legal title, but in the absence of such a disposition of the shares, the
shares must remain in the participant's account at the ESPP Broker until the
holding period set forth in Section 423(a) of the Code has been satisfied. With
respect to shares for which the Section 423(a) holding period has been
satisfied, the participant may transfer those shares to another brokerage
account of participant's choosing or request in writing that a stock certificate
be issued and delivered to him.
SECTION 10. LIMITATIONS ON SHARES TO BE PURCHASED.
a.) No employee shall be entitled to purchase more than the Maximum
Share Amount (as defined below) on any single Purchase Date. Not less than
twenty (20) days prior to the commencement of any Offering Period, the Committee
may,in its sole discretion, set a maximum number of shares which may be
purchased by any employee at any single Purchase Date (hereinafter the "Maximum
Share Amount"). If a new Maximum Share Amount is set, then all participants
must be notified of such Maximum Share Amount not less than twenty (20) days
prior to the commencement of the next Offering Period. Once the Maximum Share
Amount is established, it shall continue to apply with respect to all succeeding
Purchase Dates and Offering Periods unless revised by the Committee as set forth
above.
b.) If the number of shares to be purchased on a Purchase Date by
all employees participating in the Plan exceeds the number of shares then
available for issuance under the Plan, the Company shall make a pro rata
allocation of the remaining shares in as uniform a manner as shall be
practicable and as the Committee shall determine to be equitable. In such
event, the Company shall give written notice of such reduction of the number of
shares to be purchased under a participant's option to each employee affected
thereby.
</PAGE>
<PAGE>
c.) Any payroll deductions accumulated in a participant's
account which are not used to purchase stock due to the limitations in this
Section 10 shall be returned to the participant, without interest, as soon as
practicable after the end of the Offering Period.
SECTION 11. WITHDRAWAL.
a.) Each participant may withdraw from an Offering Period under the
Plan by signing and delivering to the payroll department notice on a form
provided for such purpose. Such withdrawal may be elected at any time at least
twenty (20) days prior to the end of an Offering Period.
b.) Upon withdrawal from the Plan, the accumulated payroll deductions
shall be returned, without interest, to the withdrawn employee and his or her
interest in the Plan shall terminate. In the event an employee voluntarily
elects to withdraw from the Plan, he or she may not resume his or her
participation in the Plan during the same Offering Period, but he or she may
participate in any Offering Period under the Plan which commences on a date
subsequent to such withdrawal by timely filing a new authorization for payroll
deductions in the same manner as set forth above for initial participation in
the Plan. However, if the participant is an officer or director for purposes of
Rule 16(b) of the Exchange Act, he or she shall not be eligible to participate
in any Offering Period under the Plan which commences less than six (6) months
from the date of withdrawal from the Plan.
SECTION 12. TERMINATION OF EMPLOYMENT. Termination of a participant's
employment for any reason, including retirement or death or the failure of a
participant to remain an eligible employee, terminates his or her participation
in the Plan immediately. In such event, the payroll deductions credited to the
participant's account will be returned, without interest, to him or her or, in
the case of his or her death, to his or her legal representative. For this
purpose, an employee will not be deemed to have terminated employment or failed
to remain in the continuous employ of the Company in the case of sick leave,
military leave, or any other leave of absence approved by the Committee;
provided that such leave is for a period of not more than ninety (90) days or
reemployment upon the expiration of such leave is guaranteed by contract or
statute.
SECTION 13. RETURN OF PAYROLL DEDUCTIONS. In the event an employee's
interest in the Plan is terminated by withdrawal, termination of employment or
otherwise, or in the event the Plan is terminated by the Board, the Company
shall promptly deliver to the employee all payroll deductions credited to his
account. No interest shall accrue on the payroll deductions of a participant in
the Plan.
</PAGE>
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SECTION 14. CAPITAL CHANGES. In the event of reorganization,
recapitalization, stock split, stock dividend, combination of shares, merger,
consolidation, offerings of rights, or any other change in the structure of the
Common Stock of the Company, the Committee may make such adjustment, if any, as
it may deem appropriate in the number, kind, and the price of shares available
for purchase under the Plan, and in the number of shares which an employee is
entitled to purchase under the Plan; provided, however, that any fractional
shares resulting from any such adjustment shall be eliminated.
In the event of the proposed dissolution or liquidation of the Company, the
Offering Period will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Committee. The Committee may,
in the exercise of its sole discretion in such instances, declare that the
options under the Plan shall terminate as of a date fixed by the Committee and
give each participant the right to exercise his or her option as to all of the
optioned stock, including shares which would not otherwise be exercisable. In
the event of a proposed sale of all or substantially all of the assets of the
Company, or the merger of the Company with or into another corporation, each
option under the Plan shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Committee determines, in the exercise of its
sole discretion and in lieu of such assumption or substitution, that the
participant shall have the right to exercise the option as to all of the
optioned stock. If the Committee makes an option exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Committee shall notify the participant that the option shall be fully
exercisable for a period of twenty (20) days from the date of such notice, and
the option will terminate upon the expiration of such period.
SECTION 15. NONASSIGNABILITY. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 22 hereof) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect.
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SECTION 16. REPORTS. Individual accounts will be maintained for each
participant in the Plan. Each participant shall receive promptly after the end
of each Offering Period a report of his or her account setting forth the total
payroll deductions accumulated, the number of shares purchased, the per share
price thereof and the remaining cash balance, if any, carried forward to the
next Offering Period.
SECTION 17. NOTICE OF DISPOSITION. Each participant shall notify the
Company in writing if the participant disposes of any of the shares purchased in
any Offering Period pursuant to this Plan if such disposition (a "Disqualifying
Disposition") occurs within two (2) years from the Offering Date or within
twelve (12) months from the Purchase Date on which such shares were purchased
(the "Notice Period"). The Company may, at any time during the Notice Period,
place a legend or legends on any certificate representing shares acquired
pursuant to the Plan requesting the Company's transfer agent to notify the
Company of any transfer of the shares. The obligation of the participant to
provide such notice shall continue notwithstanding the placement of any such
legend on certificates.
SECTION 18. NO RIGHTS TO CONTINUED EMPLOYMENT. Neither this Plan nor the
grant of any option hereunder shall confer any right on any employee to remain
in the employ of the Company or any Subsidiary or restrict the right of the
Company or any Subsidiary to terminate such employee's employment.
SECTION 19. EQUAL RIGHTS AND PRIVILEGES. All eligible employees shall have
equal rights and privileges with respect to the Plan so that the Plan qualifies
as an "employee stock purchase plan" within the meaning of Section 423 or any
successor provision of the Code and the related regulations. Any provision of
the Plan which is inconsistent with Section 423 or any successor provision of
the Code shall without further act or amendment by the Company or the Board be
reformed to comply with the requirements of Section 423. This Section 19 shall
take precedence over all other provisions in the Plan.
SECTION 20. NOTICES. All notices or other communications by a participant
to the Company under or in connection with the Plan shall be in writing and
shall be deemed to have been duly given when delivered personally or deposited
in the U.S. Mail, first class postage prepaid, addressed as follows: Activision,
Inc. Stock Administration Department, Activision, Inc. 11601 Wilshire Boulevard,
Suite 1000, Los Angeles, California 90025, or as such other address as the
Company, by notice to employees, may designate in writing from time to time.
SECTION 21. STOCKHOLDER APPROVAL OF AMENDMENTS. Any required approval of
the stockholders of the Company for an amendment to the Plan shall be solicited
at or prior to the first annual meeting of stockholders held subsequent to the
grant of an option under the Plan as then amended to an officer or director of
the Company. If such stockholder approval is obtained at a duly held
stockholders' meeting, it must be obtained by the affirmative vote of the
holders of a majority of the outstanding shares of the company represented and
voting at the meeting, or if such stockholder approval is obtained by written
consent, it must be obtained by the majority of the outstanding shares of the
Company; provided, however, that approval at a meeting or by written consent may
be obtained by a lesser degree of stockholder approval if the Committee
determines, in its sole discretion after consultation with the Company's legal
counsel, that such lesser degree of stockholder approval will comply with all
applicable laws and will not adversely affect the qualification of the Plan
under Section 423 of the Code or Rule 16b-3 promulgated under the Exchange Act
("Rule 16b-3").
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SECTION 22. DESIGNATION OF BENEFICIARY.
a.) A participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the participant's account under
the Plan in the event of such participant's death subsequent to the end of an
Offering Period but prior to delivery to him or her of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who is
to receive any cash from the participant's account under the Plan in the event
of such participant's death prior to a Purchase Date.
b.) Such designation of beneficiary may be changed by the
participant at any time by written notice to the Company. In the event of the
death of a participant and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such participant's death, the
Company shall deliver such shares or cash to the executor or administrator of
the estate of the participant, or if no such executor or administrator has been
appointed (to the knowledge of the Company), the Company, in its sole
discretion, may deliver such shares or cash to the spouse or to any one or more
dependents or relatives of the participant, or if no spouse, dependent or
relative is known to the Company, then to such other person as the Company may
designate.
SECTION 23. CONDITIONS UPON ISSUANCE OF SHARES; LIMITATION ON SALE OF
SHARES. Shares shall not be issued with respect to an option unless the
exercise of such option and the issuance and delivery of such shares pursuant
thereto shall comply with all applicable provisions of law, domestic or foreign,
including, without limitation, the Securities Act of 1933, as amended, (the
"Securities Act") the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange or market upon which the
shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
SECTION 24. APPLICABLE LAW. The Plan shall be governed by the substantive
laws (excluding the conflict of laws rules) of the State of Delaware.
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SECTION 25. EFFECTIVE DATE; AMENDMENT OR TERMINATION OF THE PLAN. This
Plan shall be effective on the day after the effective date of the Company's
Registration Statement filed with the Securities Exchange Commission under the
Securities Act, with respect to the shares issuable under the Plan (the
"Effective Date"), subject to approval by the stockholders of the Company within
twelve (12) months after the date the Plan is adopted by the Board and the Plan
shall continue until the earlier to occur of termination by the Board, issuance
of all of the shares of Common Stock reserved for issuance under the Plan, or
ten (10) years from the adoption of the Plan by the Board. The Board may at any
time amend or terminate the Plan, except that any such termination cannot affect
options previously granted under the Plan, nor may any amendment make any change
in an option previously granted which would adversely affect the right of any
participant, nor may any amendment be made without approval of the stockholders
of the Company obtained in accordance with Section 21 hereof within 12 months of
the adoption of such amendment (or earlier if required by Section 21) if such
amendment would:
a.) Increase the number of shares that may be issued under the Plan
b.) Change the designation of the employees (or class of employees)
eligible for participation in the Plan; or
c.) Constitute an amendment for which stockholder approval is
required in order to comply with Rule 16b-3 (or any successor rule)
under the Exchange Act.
SECTION 26. TAX WITHHOLDING. The Company shall notify a participant of any
income tax withholding requirements arising as a result of a Disqualifying
Disposition of shares acquired pursuant to this Plan or any other event
occurring pursuant to this Plan. The Company shall have the right to withhold
from such participant such withholding taxes as may be required by law, or to
otherwise require the participant to pay such withholding taxes. If the
participant shall fail to make such tax payments as are required, the Company or
its Subsidiaries shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment of any kind otherwise due to such participant or
to take such other action as may be necessary to satisfy such withholding
obligations.
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EXHIBIT 5.1
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN LLP
1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104
(212) 541-2000
September 24, 1996
Activision, Inc.
11601 Wilshire Boulevard
Suite 1000
Los Angeles, California 90025
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 200,000 shares of
the Company's common stock, $.000001 par value per share (the "Common Stock"),
reserved for issuance pursuant to the terms of the Company's Employee Stock
Purchase Plan (the "Plan").
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 Plan,
the resolutions adopted by the Company's Board of Directors and actions by the
Company's stockholders pertaining to the Plan, 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 200,000 shares of
Common Stock reserved for issuance pursuant to the terms of the Plan have been
duly authorized and, when issued in accordance with the terms of the Plan and
upon payment of the purchase price therefor, will be validly issued, fully paid
and non-assessable.
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,
ROBINSON SILVERMAN PEARCE
ARONSOHN & BERMAN LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Activision, Inc. on Form S-8 of our report dated May 15, 1996, on our audits of
the financial statement and the financial statement schedules of Activision,
Inc. and Subsidiaries as of March 31, 1996 and 1995 and for the three years in
the period ended March 31, 1996, which report is included in the Annual Report
of Activision, Inc. on Form 10-K.
COOPERS & LYBRAND L.L.P.
Los Angeles, California
September 24, 1996
