As filed with the Securities and Exchange Commission on May __, 2000
Registration No. 333-
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACTIVISION, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 94-2606438
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3100 Ocean Park Boulevard
Santa Monica, California 90405
(Address of Principal Executive Offices) (Zip Code)
Activision, Inc. Employee Stock Purchase Plan
(Full Title of the Plan)
Robert A. Kotick
Chairman of the Board and Chief Executive Officer
Activision, Inc.
3100 Ocean Park Boulevard
Santa Monica, California 90405
(310) 255-2000
(Name, Address and Telephone Number of Agent for Service)
Copies to:
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Attention: Kenneth L. Henderson, Esq.
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------
Proposed
Maximum Proposed
Title of Offering Maximum
Securities Amount Price Aggregate Amount of
to be to be Per Offering Registration
Registered Registered Share(1) Price(1) Fee
- --------------------------------------------------------------------------
Common Stock,
par value
$.000001
per share 250,000(2) $6.78125 $1,695,312.50 $448
- ---------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and (h) under the Securities Act of 1933, as
amended, and based upon the average of the high and low prices reported
on the NASDAQ National Market on May 2, 2000.
(2) The shares covered by this Registration Statement represent the common
stock issuable to participants in the registrant's Employee Stock
Purchase Plan.
<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 document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants in the Activision, Inc. Employee
Stock Purchase 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. The Company's Annual Report on Form 10-K for the year ended
March 31, 1999.
2. The Company's Proxy Statement dated August 16, 1999, as filed
with the Commission on July 29, 1999 and as amended on September 2, 1999.
3. The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 30, 1999, September 30, 1999 and December 31, 1999.
4. The Company's Current Reports on Form 8-K filed with the
Commission on April 29, 1999, July 12, 1999, October 13, 1999, and April 19,
2000.
5. Description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-3, Registration No. 333-46425.
6. Description of the Company's Preferred Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A, Registration
No. 001-15839.
7. All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since March 31, 1999.
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 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prior to the filing of a post-effective
amendment which indicates that all securities offered by this Registration
Statement have been sold or which deregisters all 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 reports and
documents.
Any statement contained herein or in a document which is
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement in
any subsequently filed document which also is, or is deemed to be,
incorporated by reference herein modifies or supersedes such prior statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement,
except as indicated herein.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL"),
paragraph B of Article SIXTH of the Company's Amended and Restated
Certificate of Incorporation and paragraph 5 of Article VII of the Company's
By-laws provide for the indemnification of the Company's directors and
officers in a variety of circumstances, which may include liabilities under
the Securities Act of 1933, as amended (the "Securities Act").
Paragraph B of Article SIXTH of the Amended and Restated
Certificate of Incorporation provides mandatory indemnification rights to any
officer or director of the Company who, by reason of the fact that he or she
is an officer or director of the Company, is involved in a legal proceeding
of any nature. Such indemnification rights shall include reimbursement for
expenses incurred by such officer or director in advance of the final
disposition of such proceeding in accordance with the applicable provisions
of the DGCL. Paragraph 5 of Article VII of the Company's By-laws currently
provide that the Company shall indemnify its directors and officers to the
fullest extent permitted by the DGCL.
Paragraph A of Article SIXTH of the Amended and Restated
Certificate of Incorporation contains a provision which eliminates the
personal liability of a director to the Company and its stockholders for
certain breaches of his or her fiduciary duty of care as a director. This
provision does not, however, eliminate or limit the personal liability of a
director (i) for any breach of such director's duty of loyalty to the Company
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under the
Delaware statutory provision making directors personally liable, under a
negligence standard, for unlawful dividends or unlawful stock repurchases or
redemptions, or (iv) for any transaction from which the director derived an
improper personal benefit. This provision offers persons who serve on the
Board of Directors of the Company protection against awards of monetary
damages resulting from negligent (except as indicated above) and "grossly"
negligent actions taken in the performance of their duty of care, including
grossly negligent business decisions made in connection with takeover
proposals for the Company. As a result of this provision, the ability of the
Company or a stockholder thereof to successfully prosecute an action against
a director for a breach of his duty of care has been limited. However, the
provision does not affect the availability of equitable remedies such as an
injunction or rescission based upon a director's breach of his duty of care.
The Company maintains a directors' and officers' insurance policy
which insures the officers and directors of the Company from any claim
arising out of an alleged wrongful act by such persons in their respective
capacities as officers and directors of the Company. In addition, the
Company has entered into indemnification agreements with its officers and
directors containing provisions which are in some respects broader than the
specific indemnification provisions contained in the DGCL. The
indemnification agreements require the Company, among other things, to
indemnify such officers and directors against certain liabilities that may
arise by reason of their status or service as directors or officers (other
than liabilities arising from willful misconduct of a culpable nature) and to
advance their expenses incurred as a result of any proceeding against them as
to which they could be indemnified. The Company believes that these
agreements are necessary to attract and retain qualified persons as directors
and officers.
It is currently unclear as a matter of law what impact these
provisions will have regarding securities law violations. The Commission
takes the position that indemnification of directors, officers and
controlling persons against liabilities arising under the Securities Act is
against public policy as expressed in the Securities Act and therefore is
unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Activision, Inc. Employee Stock Purchase Plan, as amended through
September 29, 1999.
5.1 Opinion of Robinson Silverman Pearce Aronsohn & Berman LLP, counsel
to the Company, as to the legality of the Common Stock being
registered.
23.1 Consent of KPMG LLP
23.2 Consent of Robinson Silverman Pearce Aronsohn & Berman LLP
(included as part of Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
Item 9. Undertakings.
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment hereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) will not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with the Commission
by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act, each filing
of the registrant's annual report pursuant to Section 13(a) or 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Los Angeles, State of
California, on the 2nd day of May, 2000.
ACTIVISION, INC.
By:/s/ Robert A. Kotick
--------------------------------
Robert A. Kotick, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Robert A. Kotick and Brian
G. Kelly, and each or any of them, as his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including, without limitation, post-effective amendments and
documents in connection therewith) to this Registration Statement, and to
file the same with the Securities and Exchange Commission, granting unto each
said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ Robert A Kotick Chairman, Chief Executive Officer May 2, 2000
- -------------------- (Principal Executive Officer)
(Robert A. Kotick) and Director
/s/ Brian G. Kelly Co-Chairman and Director May 2, 2000
- --------------------
(Brian G. Kelly)
/s/ Ronald Doornink President and Chief Operating May 2, 2000
- -------------------- Officer (Principal Financial
(Ronald Doornink) Officer)
/s/ Jenniffer Koh Controller (Principal Accounting May 2, 2000
- -------------------- Officer)
(Jenniffer Koh)
/s/ Harold A. Brown Director May 2, 2000
- --------------------
(Harold A. Brown)
/s/ Barbars S. Isgur Director May 2, 2000
- --------------------
(Barbara S. Isgur)
/s/ Steven T. Mayer Director May 2, 2000
- --------------------
(Steven T. Mayer)
/s/ Robert J. Morgado Director May 2, 2000
- --------------------
(Robert J. Morgado)
<PAGE>
EXHIBIT INDEX
No. Document Page
4.1 Activision, Inc. Employee Stock Purchase Plan, as amended
through September 29, 1999.
5.1 Opinion of Robinson Silverman Pearce Aronsohn & Berman LLP,
counsel to the Company, as to the legality of the Common Stock
being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Robinson Silverman Pearce Aronsohn & Berman LLP
(included as part of Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
EXHIBIT 4.1
As adopted by the Board of
Directors on May 10, 1996 and
amended on September 29, 1999
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 450,000 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.
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.
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.
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.
(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.
(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.
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.
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").
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.
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.
EXHIBIT 5.1
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN LLP
1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104
(212) 541-2000
Facsimile: (212) 541-4630
May 3, 2000
Activision, Inc.
3100 Ocean Park Boulevard
Santa Monica, California 90405
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Activision, Inc., a Delaware
corporation (the "Company"), on or about the date hereof with the Securities
and Exchange Commission (the "Commission") in connection with the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of an additional 250,000 shares of the Company's common stock, par
value $.000001 per share (the "Common Stock"), reserved for issuance pursuant
to the terms of the Company's Employee Stock Purchase Plan, as amended (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 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 additional
250,000 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,
/s/ Robinson Silverman Pearce
Aronsohn & Berman LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use of our report incorporated herein by reference.
/s/ KPMG LLP
Los Angeles, California
May 3, 2000
