<PAGE>
As filed with the Securities and Exchange Commission on May 19, 1995
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
ACCLAIM ENTERTAINMENT, INC.
(Exact name of registrant as specified in its charter)
Delaware 38-2698904
(State or other jurisdiction of (I.R.S Employer
incorporation or organization) Identification Number)
One Acclaim Plaza
Glen Cove, New York 11542
(Address of principal executive offices)
------------------
Acclaim Entertainment, Inc.
1988 Stock Option Plan
(Full title of the plan)
------------------
Gregory E. Fischbach Copy to:
Chief Executive Officer Eric M. Lerner, Esq.
One Acclaim Plaza Rosenman & Colin
Glen Cove, New York 11542 575 Madison Avenue
(516) 656-5000 New York, New York 10022
(Name, address and telephone (212) 940-7157
number of agent for service)
------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to be offering price aggregate offering registration
be registered registered per share* price* fee
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $0.02
per share....... 6,000,000 $16.75 $100,500,000 $34,656
<CAPTION>
- --------------------------------------------------------------------------------------
</TABLE>
* Estimated solely for the purpose of calculating the registration fee;
computed, pursuant to Rule 457(c), upon the basis of the average of the high and
low prices of the Common Stock as quoted on The NASDAQ Stock Market's National
Market System on May 18, 1995.
------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Acclaim Entertainment, Inc. (the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934
(the "Exchange Act") and, in accordance therewith, files reports
and other information with the Securities and Exchange Commission
(the "Commission"). The following documents, or portions thereof,
filed by the Company with the Commission pursuant to the Exchange
Act are incorporated by reference in this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended
August 31, 1994, filed on November 28, 1994 (File No. 0-
16986);
(b) Quarterly Report on Form 10-Q for the fiscal quarter
ended November 30, 1994, filed on January 13, 1995 (File No.
0-16986);
(c) Quarterly Report on Form 10-Q for the fiscal quarter
ended February 28, 1995, filed on April 10, 1995
(File No. 0-16986);
(d) Current Report on Form 8-K, filed on March 31, 1995
(File No. 0-16986); and
(e) The information in respect of the Company's common
stock under the caption "Description of Registrant's
Securities to be Registered" contained in the Registration
Statement on Form 8-A filed on June 8, 1988, as amended by the
Current Report on Form 8-K, dated August 24, 1989, relating to
the one-for-two stock split effected by the Company
(File No. 0-16986).
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment hereto indicating 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
a part of this Registration Statement from the respective dates of
filings of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation of the Company provides that
any person may be indemnified against all expenses and liabilities
to the fullest extent permitted by the General Corporation Law of
the State of Delaware.
<PAGE>
Section 145 of the General Corporation Law of Delaware, the
law of the state in which the Company is incorporated, empowers a
corporation within certain limitations to indemnify any person
against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him
in connection with any suit or proceeding to which he is a party by
reason of the fact that he is or was a director, officer, employee
or agent of the corporation or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, as long as he acted in good faith and in a manner which
he reasonably believed to be in, or not opposed to, the best
interests of the corporation. With respect to any criminal
proceeding, he must have had no reasonable cause to believe his
conduct was unlawful.
The Company has in effect directors' and officers' liability
insurance.
ITEM 8. EXHIBITS
Exhibit No. Description
----------- -----------
*4(a) - Acclaim Entertainment, Inc. 1988 Stock Option Plan,
as amended and restated.
4(b) - Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1, Registration
No. 33-28274, filed on April 21, 1989, as amended).
4(c) - Amendment to Certificate of Incorporation
(incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1,
Registration No. 33-28274, filed on April 21, 1989,
as amended).
*4(d) - Amendment to Certificate of Incorporation.
*4(e) - Amended and Restated By-Laws of the Company.
4(f) - Specimen of common stock certificate of the Company
(incorporated by reference to Exhibit 4.1 to the
Company's Annual Report on Form 10-K for the year
ended August 31, 1991, filed on November 8, 1989,
as amended (File No. 0-16986)).
*5 - Opinion of Rosenman & Colin.
23(a) - Consent of Grant Thornton LLP (included on page II-7).
II-2
<PAGE>
23(b) - Consent of Rosenman & Colin (included in Exhibit
5).
24 - Power of Attorney (included on page II-6)
- ---------------------------
* Filed herewith
II-3
<PAGE>
ITEM 9. UNDERTAKINGS
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 to include any
material information with respect to the plan of distribution of
the securities being registered hereby not previously disclosed in
this Registration Statement or any material change to such
information in this Registration Statement; (b) that, for the
purpose of determining any liability under the Securities Act of
1933 (the "Securities Act"), each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof; and (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.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that, in
the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Glen Cove, State of New York, on this 17th day of May, 1995.
ACCLAIM ENTERTAINMENT, INC.
(Registrant)
By Gregory E. Fischbach
----------------------------
Gregory E. Fischbach
Co-Chairman of the Board and
Chief Executive Officer
II-5
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gregory E. Fischbach and James Scoroposki, and
each or either of them, his true and lawful attorney-in-fact and agent, each
acting alone, with full power of substitution and resubstitution, for him and
in his name, place, and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all the exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, each acting
alone, full power and authority to do and perform each and every act and
thing requisite or 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 attorneys-in-fact and agents, each
acting alone, 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
--------- ----- ----
Gregory E. Fischbach Co-Chairman; Chief Executive May 17, 1995
- ------------------------ Officer; Director
Gregory E. Fischbach
James Scoroposki Co-Chairman; Senior Executive May 17, 1995
- ------------------------ Vice President; Treasurer;
James Scoroposki Secretary; Director
Robert Holmes President; Chief Operating May 17, 1995
- ------------------------ Officer; General Manager;
Robert Holmes Director
Bernard J. Fischbach Director May 17, 1995
- ------------------------
Bernard J. Fischbach
Michael Tannen Director May 17, 1995
- ------------------------
Michael Tannen
Robert H. Groman Director May 17, 1995
- ------------------------
Robert H. Groman
James Scibelli Director May 17, 1995
- ------------------------
James Scibelli
Bruce Ravenel Director May 17, 1995
- ------------------------
Bruce Ravenel
Anthony R. Williams Executive Vice President; May 17, 1995
- ------------------------ Chief Financial and
Anthony R. Williams Accounting Officer
II-6
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors of
Acclaim Entertainment, Inc.
We have issued our report dated October 20, 1994
accompanying the consolidated financial statements and schedules of
Acclaim Entertainment, Inc. and subsidiaries included in the Annual
Report on Form 10-K for the year ended August 31, 1994, which is
incorporated by reference in this Registration Statement on Form
S-8. We consent to the incorporation by reference in the
Registration Statement of the aforementioned report.
GRANT THORNTON LLP
New York, New York
May 18, 1995
II-7
<PAGE>
EXHIBIT INDEX
Document Page Number
- -------- -----------
4(a) - Acclaim Entertainment, Inc. 1988
Stock Option Plan, as amended
and restated.
4(b) - Certificate of Incorporation
(incorporated by reference to
Exhibit 3.1 to the Company's
Registration Statement on Form S-1,
Registration No. 33-28274, filed on
April 21, 1989, as amended).
4(c) - Amendment to Certificate of
Incorporation (incorporated by
reference to Exhibit 3.2 to the
Company's Registration Statement on
Form S-1, Registration No. 33-28274,
filed on April 21, 1989, as amended).
4(d) - Amendment to Certificate of Incorporation.
4(e) - Amended and Restated By-Laws of the
Company.
4(f) - Specimen of common stock certificate of
the Company (incorporated by reference to
Exhibit 4.1 to the Company's Annual Report
on Form 10-K for the year ended August 31,
1991, filed on November 8, 1989, as amended
(File No. 0-16986)).
5 - Opinion of Rosenman & Colin.
23(a) - Consent of Grant Thornton LLP (included
on page II-7).
23(b) - Consent of Rosenman & Colin (included in
Exhibit 5).
24 - Power of Attorney (included on page II-6)
<PAGE>
ACCLAIM ENTERTAINMENT, INC.
1988 STOCK OPTION PLAN
(Amended and Restated as of January 31, 1995)
1. Purpose.
The purposes of this 1988 Stock Option Plan (the "Plan") are
to induce certain individuals to remain in the employ of, or to
continue to serve as directors of or as independent consultants
to, Acclaim Entertainment, Inc. (the "Company") and its present
and future subsidiary corporations (each a "Subsidiary"), as
defined in section 424(f) of the Internal Revenue Code of 1986,
as amended (the "Code"), to attract new individuals to enter into
such employment and service and to encourage such individuals to
secure or increase on reasonable terms their stock ownership in
the Company. The Board of Directors of the Company (the "Board")
believes that the granting of stock options (the "Options") under
the Plan will promote continuity of management and increased
incentive and personal interest in the welfare of the Company and
aid in securing its continued growth and financial success.
Options will be either (a) "incentive stock options" (which term,
when used herein, shall have the meaning ascribed thereto by the
provisions of section 422(b) of the Code) or (b) options which
are not incentive stock options ("non-incentive stock options"),
as determined at the time of the grant thereof by the Committee
(the "Committee") referred to in Section 3(A) hereof.
2. Shares Subject to Plan.
Options may be granted to purchase up to 15,000,000 shares
of the common stock, par value $0.02 per share (the "Common
Stock") of the Company. For purposes of this Section 2, the
number of shares purchased upon the exercise of an Option shall
be determined without giving effect to the use by a Participant
of the right set forth in Section 8(C) hereof to deliver shares
of the Common Stock in payment of all or a portion of the option
price or the use by a Participant of the right set forth in
Section 12(C) hereof to cause the Company to withhold from the
shares of the Common Stock otherwise deliverable to him upon the
exercise of an Option shares of the Common Stock in payment of
all or a portion of his withholding obligation arising from such
exercise. If any Options expire or terminate for any reason
without having been exercised in full, new Options may thereafter
be granted to purchase the unpurchased shares subject to such
expired or terminated Options.
3. Administration.
(A) The Plan shall be administered by a Committee which
shall consist of two or more members of the Board, both or all of
whom shall be "disinterested persons" within the meaning of Rule
16b-3(c)(2)(i) promulgated under Section 16(b) of the Securities
Exchange Act of 1934 (the "Exchange Act") and both or all of whom
<PAGE>
shall be "outside directors" within the contemplation of section
162(m)(4)(C)(i) of the Code. The Chief Executive Officer of the
Company shall also be a member of the Committee, ex-officio. The
Committee shall be appointed annually by the Board, which may at
any time and from time to time remove any members of the
Committee, with or without cause, appoint additional members to
the Committee and fill vacancies, however caused, in the
Committee. A majority of the members of the Committee shall
constitute a quorum. All determinations of the Committee shall
be made by a majority of its members present at a meeting duly
called and held except that the Committee may delegate to any one
of its members the authority of the Committee with respect to the
grant of Options to a person who shall not be an officer and/or
director of the Company and who is not, and may not reasonably be
expected to become, a "covered employee" within the meaning of
section 162(m)(3) of the Code. Any decision or determination of
the Committee reduced to writing and signed by all of the members
of the Committee (or by a member of the Committee to whom
authority has been delegated) shall be fully as effective as if
it had been made at a meeting duly called and held.
(B) Subject to the express provisions of the Plan, the
Committee shall have complete authority, in its discretion, to
interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to it, to determine the terms and provisions
of the respective option agreements or certificates (which need
not be identical), to determine the individuals (each a
"Participant") to whom and the times and the prices at which
Options shall be granted, the periods during which each Option
shall be exercisable, the number of shares of the Common Stock to
be subject to each Option and whether such Option shall be an
incentive stock option or a non-incentive stock option and to
make all other determinations necessary or advisable for the
administration of the Plan; provided, however, that Outside
Directors (as such term is defined in Section 4 hereof) who are
members of the Committee shall only be granted Options in
accordance with the provisions of Section 4(B) hereof. In making
such determinations, the Committee may take into account the
nature of the services rendered by the respective employees,
their present and potential contributions to the success of the
Company and the Subsidiaries and such other factors as the
Committee in its discretion shall deem relevant. The Committee's
determination on the matters referred to in this Section 3(B)
shall be conclusive. Any dispute or disagreement which may arise
under or as a result of or with respect to any Option shall be
determined by the Committee, in its sole discretion, and any
interpretations by the Committee of the terms of any Option shall
be final, binding and conclusive.
4. Eligibility.
(A) An Option may be granted only to (1) employees of the
Company or a Subsidiary, (2) directors of the Company or a
2
<PAGE>
Subsidiary who are not employees of the Company or a Subsidiary
("Outside Directors"), (3) employees of a corporation which has
been acquired by the Company or a Subsidiary, whether by way of
exchange or purchase of stock, purchase of assets, merger or
reverse merger, or otherwise, who hold options with respect to
the stock of such corporation which the Company has agreed to
assume and (4) independent consultants who render services to the
Company or a Subsidiary.
(B) On the first business day of each August, commencing in
August 1992, each Outside Director shall be granted an Option to
purchase 18,750 shares of the Common Stock; provided, however,
that the number of shares subject to an Option granted to an
Outside Director during the calendar year in which he becomes an
Outside Director shall be equal to 18,750 multiplied by a
fraction, the numerator of which shall be the number of regular
meetings remaining during such calendar year after his election
as a director and the denominator of which shall be four.
5. Option Prices.
(A) Except as otherwise provided in Sections 5(C) and 17
hereof, the initial per share option price of any Option which is
an incentive stock option shall not be less than the fair market
value of a share of the Common Stock on the date of grant;
provided, however, that, in the case of a Participant who owns
(within the meaning of section 424(d) of the Code) more than 10%
of the total combined voting power of the Common Stock at the
time an Option which is an incentive stock option is granted to
him, the initial per share option price shall not be less than
110% of the fair market value of a share of the Common Stock on
the date of grant.
(B) Except as otherwise provided in Sections 5(C) and 17
hereof, the initial per share option price of any Option which is
a non-incentive stock option shall not be less than 85% of the
fair market value of a share of the Common Stock on the date of
grant.
(C) The initial per share option price of any Option which
is granted to an Outside Director shall be equal to the fair
market value of a share of the Common Stock on the date of grant.
(D) For all purposes of this Plan, the fair market value of
a share of the Common Stock on any date, if the Common Stock is
then listed on a national securities exchange or traded on the
NASDAQ National Market System, shall be equal to the closing sale
price of a share of the Common Stock or, if there is no sale of
the Common Stock on such date, the average of the bid and asked
prices on such exchange or system at the close of trading on such
date or, if the shares of the Common Stock are not then listed on
a national securities exchange or such system on such date, the
fair market value of a share of the Common Stock on such date as
3
<PAGE>
shall be determined in good faith by the Committee.
6. Option Term.
Options shall be granted for such term as the Committee
shall determine, not in excess of ten years from the date of the
granting thereof; provided, however, that, except as otherwise
provided in Section 17 hereof, in the case of a Participant who
owns (within the meaning of section 424(d) of the Code) more than
10% of the total combined voting power of the Common Stock at the
time an Option which is an incentive stock option is granted to
him, the term with respect to such Option shall not be in excess
of five years from the date of the granting thereof; and
provided, further, however, that the term of an Option granted to
an Outside Director shall be ten years from the date of the
granting thereof.
7. Limitation on Amount of Incentive Stock Options Granted.
(A) Except as otherwise provided in Section 17 hereof, the
aggregate fair market value of the shares of the Common Stock for
which any Participant may be granted incentive stock options
which are exercisable for the first time in any calendar year
(whether under the terms of the Plan or any other stock option
plan of the Company) shall not exceed $100,000.
(B) No Participant shall be granted Options during any
calendar year to purchase more than 300,000 shares of Common
Stock, except that in calendar year 1994, no Participant shall be
granted Options to purchase more than 450,000 shares of Common
Stock.
8. Exercise of Options.
(A) Except as otherwise provided in Section 17 hereof and,
in the case of an Option granted to a person who shall not be an
Outside Director, except as otherwise determined by the Committee
at the time of the grant thereof, a Participant may (i) during
the period commencing on the first anniversary of the date of the
granting of an Option to him and ending on the day preceding the
second anniversary of such date, exercise such Option with
respect to one-third of the shares granted thereby, (ii) during
the period commencing on such second anniversary and ending on
the day preceding the third anniversary of the date of the
granting of such Option, exercise such Option with respect to
two-thirds of the shares granted thereby, and (iii) during the
period commencing on such third anniversary, exercise such Option
with respect to all of the shares granted thereby.
(B) To the extent exercisable, an Option may be exercised
either in whole at any time or in part from time to time.
4
<PAGE>
(C) An Option may be exercised only by a written notice of
intent to exercise such Option with respect to a specific number
of shares of the Common Stock and payment to the Company of the
amount of the option price for the number of shares of the Common
Stock so specified; provided, however, that all or any portion of
such payment may be made in kind by the delivery of shares of the
Common Stock having a fair market value on the date of delivery
equal to the portion of the option price so paid; provided,
further, however, that, subject to the requirements of
Regulation T promulgated under the Exchange Act, the Committee
may implement procedures to allow a broker chosen by a
Participant to make payment of all or any portion of the option
price payable upon the exercise of an Option and receive, on
behalf of such Participant, all or any portion of the shares of
the Common Stock issuable upon such exercise.
(D) Except in the case of an Option granted to an Outside
Director, the Committee may, in its discretion, permit any Option
to be exercised, in whole or in part, prior to the time when it
would otherwise be exercisable.
9. Transferability.
No Option shall be assignable or transferable except by will
and/or by the laws of descent and distribution and, during the
life of any Participant, each Option granted to him may be
exercised only by him.
10. Termination of Service.
(A) Except as otherwise determined by the Committee at the
time of grant thereof, in the event a Participant leaves the
employ or service of the Company and the Subsidiaries prior to
his 65th birthday, whether voluntarily or otherwise but other
than by reason of his death or "disability" (as such term is
defined in section 22(e)(3) of the Code), each Option theretofore
granted to him shall, to the extent not theretofore exercised,
terminate forthwith.
(B) In the event a Participant's employment or service with
the Company and the Subsidiaries terminates by reason of his
death, each Option theretofore granted to him shall become
immediately exercisable in full and shall terminate upon the
earlier to occur of (i) the expiration of the period of one year
after the date of such Participant's death and (ii) the date
specified in such Option.
(C) In the event a Participant leaves the employ or service
of the Company and the Subsidiaries on or after his 65th birthday
or by reason of his disability, each Option theretofore granted
to him shall become immediately exercisable in full and shall
terminate upon the earlier to occur of (i) the expiration of the
period of three months after the date of such retirement or
5
<PAGE>
disability and (ii) the date specified in such Option.
11. Adjustment of Number of Shares.
(A) In the event that a dividend shall be declared upon the
Common Stock payable in shares of the Common Stock, the number of
shares of the Common Stock then subject to any Option, the number
of shares of the Common Stock which may be purchased upon the
exercise of Options granted under the Plan but not yet covered by
an Option and the number of shares of the Common Stock to be
subject to an Option to be issued to an Outside Director shall be
adjusted by adding to each share the number of shares which would
be distributable thereon if such shares had been outstanding on
the date fixed for determining the stockholders entitled to
receive such stock dividend. In the event that the outstanding
shares of the Common Stock shall be changed into or exchanged for
a different number or kind of shares of stock or other securities
of the Company or of another corporation, whether through
reorganization, recapitalization, stock split-up, combination of
shares, sale of assets, merger or consolidation in which the
Company is the surviving corporation, then, there shall be
substituted for each share of the Common Stock then subject to
any Option, for each share of the Common Stock which may be
purchased upon the exercise of Options granted under the Plan but
not yet covered by an Option and for each share of the Common
Stock to be subject to an Option to be issued to an Outside
Director, the number and kind of shares of stock or other
securities into which each outstanding share of the Common Stock
shall be so changed or for which each such share shall be
exchanged.
(B) In the event that there shall be any change, other than
as specified in Section 11(A) hereof, in the number or kind of
outstanding shares of the Common Stock, or of any stock or other
securities into which the Common Stock shall have been changed,
or for which it shall have been exchanged, then, if the Committee
shall, in its sole discretion, determine that such change
equitably requires an adjustment in the number or kind of shares
then subject to any Option and the number or kind of shares
available for issuance in accordance with the provisions of the
Plan but not yet covered by an Option, such adjustment shall be
made by the Committee and shall be effective and binding for all
purposes of the Plan and of each Option.
(C) In the case of any substitution or adjustment in
accordance with the provisions of this Section 11, the option
price in each Option for each share covered thereby prior to such
substitution or adjustment shall be the option price for all
shares of stock or other securities which shall have been
substituted for such share or to which such share shall have been
adjusted in accordance with the provisions of this Section 11.
6
<PAGE>
(D) No adjustment or substitution provided for in this
Section 11 shall require the Company to sell a fractional share
under any Option.
(E) In the event of the dissolution or liquidation of the
Company, or a merger, reorganization or consolidation in which
the Company is not the surviving corporation, the Board, in its
discretion, may accelerate the exercisability of each Option
and/or terminate the same within a reasonable time thereafter.
12. Purchase for Investment, Withholding and Waivers.
(A) Unless the delivery of the shares upon the exercise of
an Option by a Participant shall be registered under the
Securities Act of 1933, such Participant shall, as a condition of
the Company's obligation to deliver such shares, be required to
give a representation in writing that he is acquiring such shares
for his own account as an investment and not with a view to, or
for sale in connection with, the distribution of any thereof.
(B) In the event of the death of a Participant, an
additional condition of exercising any Option shall be the
delivery to the Company of such tax waivers and other documents
as the Committee shall determine.
(C) An additional condition of exercising any non-incentive
stock option shall be the entry by the Participant into such
arrangements with the Company with respect to withholding as the
Committee shall determine; provided, however, that such
Participant may direct the Company to satisfy all or a portion of
such withholding obligation by withholding from the shares of the
Common Stock issuable to him on such exercise shares of the
Common Stock having a fair market value equal to the portion of
the withholding obligation so satisfied.
13. Declining Market Price.
Except in the case of an Option granted to an Outside
Director, in the event the fair market value of the Common Stock
declines below the option price set forth in any Option, the
Committee may, subject to the approval of the Board, at any time,
adjust, reduce, cancel and re-grant any unexercised Option or
take any similar action it deems to be for the benefit of the
Participant in light of the declining fair market value of the
Common Stock.
14. No Stockholder Status; No Restrictions on Corporate Acts; No
Employment Right.
(A) Neither any Participant nor his legal representatives,
legatees or distributees shall be or be deemed to be the holder
of any share of the Common Stock covered by an Option unless and
until a certificate for such share has been issued. Upon payment
7
<PAGE>
of the purchase price therefor, a share issued upon exercise of
an Option shall be fully paid and non-assessable.
(B) Neither the existence of the Plan nor any Option shall
in any way affect the right or power of the Company or its
stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures,
preferred or prior preference stock ahead of or affecting the
Common Stock or the rights thereof, or dissolution or liquidation
of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding
whether of a similar character or otherwise.
(C) Neither the existence of the Plan nor the grant of any
Option shall require the Company or any Subsidiary to continue
any Participant in the employ or service of the Company or such
Subsidiary.
15. Termination and Amendment of the Plan.
(A) The Board may at any time terminate the Plan or make
such modifications of the Plan as it shall deem advisable;
provided, however, that the Board may not, without further
approval of the holders of the shares of the Common Stock,
increase the number of shares of the Common Stock as to which
Options may be granted under the Plan (as adjusted in accordance
with the provisions of Section 11 hereof), or change the class of
persons eligible to participate in the Plan, or change the manner
of determining the option prices, or extend the period during
which an Option may be granted or exercised. Except as otherwise
provided in Section 16 hereof, no termination or amendment of the
Plan may, without the consent of the Participant to whom any
Option shall theretofore have been granted, adversely affect the
rights of such Participant under such Option.
(B) The provisions of Section 4(B) hereof may not be
amended except by the vote of the majority of the members of the
Board and by the vote of the majority of the members of the Board
who are not Outside Directors, and the provisions of said Section
4(B) shall not be amended more than once every six months, other
than to comport with changes in the Code, the Employee Retirement
Income Security Act of 1974 or the Rules and Regulations
thereunder.
16. Expiration and Termination of the Plan.
The Plan shall terminate on May 1, 1998 or at such earlier
time as the Board may determine. Options may be granted under
the Plan at any time and from time to time prior to its
termination. Any Option outstanding under the Plan at the time
of the termination of the Plan shall remain in effect until such
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Option shall have been exercised or shall have expired in
accordance with its terms.
17. Options Granted in Connection With Acquisitions.
In the event that the Committee determines that, in
connection with the acquisition by the Company or a Subsidiary of
another corporation which will become a Subsidiary or division of
the Company (such corporation being hereafter referred to as an
"Acquired Subsidiary"), Options may be granted hereunder to
employees and other personnel of an Acquired Subsidiary in
exchange for then outstanding options to purchase securities of
the Acquired Subsidiary. Such Options may be granted at such
option prices, may be exercisable immediately or at any time or
times either in whole or in part, and may contain such other
provisions not inconsistent with the Plan, or the requirements
set forth in Section 15 hereof that certain amendments to the
Plan be approved by the stockholders of the Company, as the
Committee, in its discretion, shall deem appropriate at the time
of the granting of such Options.
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
ACCLAIM ENTERTAINMENT, INC.
------------------------------------
Under Section 242 of the
General Corporation Law
------------------------------------
The undersigned officer of Acclaim Entertainment, Inc., a
Delaware corporation (the "Corporation"), in order to amend the
Certificate of Incorporation of the Corporation, pursuant to the
provisions of Section 242 of the General Corporation Law of the
State of Delaware, does hereby certify as follows:
1. Part A of Article FOURTH of the Certificate of
Incorporation of the Corporation is hereby amended and restated
to read as follows:
"FOURTH: A. The Corporation shall be authorized
to issue (i) one hundred million (100,000,000) shares
of common stock, par value $0.02 per share, and (ii)
one million (1,000,000) shares of preferred stock, par
value $0.01 per share, of which 200,000 shares of
preferred stock are designated Series A Preferred Stock
and which shall have the powers, designations,
preferences, rights, limitations and qualifications
hereinafter set forth in part D of this Article FOURTH."
<PAGE>
2. The foregoing amendment to the Certificate of
Incorporation of the Corporation was duly adopted by unanimous
written consent of the Board of Directors of the Corporation
dated as of December 15, 1994, and by the affirmative vote of a
majority of the outstanding stock entitled to vote thereon, at a
special meeting of the stockholders of the Corporation held on
January 31, 1995.
IN WITNESS WHEREOF, the Corporation has caused this
Amendment to be signed by Anthony R. Williams, its Executive Vice
President on January 31, 1995.
ACCLAIM ENTERTAINMENT, INC.
By Anthony R. Williams
-------------------------------
Name: Anthony R. Williams
Title: Executive Vice President
<PAGE>
BY-LAWS
of
ACCLAIM ENTERTAINMENT, INC.
(Amended and Restated as of February 2, 1995)
ARTICLE I
Stockholders
Section 1. Annual Meeting. The annual meeting of the
stockholders of the Corporation shall be held annually at such
place within or without the State of Delaware, at such time and
on such date as may from time to time be designated by the Board
of Directors, for the election of directors and for the
transaction of any other proper business.
Section 2. Special Meetings. Special meetings of the
stockholders of the Corporation may be called at any time and
from time to time by the President or by a majority of the di-
rectors then in office, and shall be called by the Secretary upon
the written request of stockholders holding of record at least a
majority in number of the issued and outstanding shares of the
Corporation entitled to vote at such meeting. Special meetings
shall be held at such place within or without the State of
Delaware, at such time and on such date as shall be specified in
the call thereof.
Section 3. Notice of Meetings. Written notice of each
meeting of the stockholders, stating the place, date and hour
thereof and, in the case of a special meeting, the purpose or
purposes for which it is called, shall be given, not less than
ten nor more than sixty days before the date of such meeting (or
at such other time as may be required by statute), to each
stockholder entitled to vote at such meeting. If mailed, such
notice is given when deposited in the United States mail, postage
prepaid, directed to each stockholder at his or her address as it
appears on the records of the Corporation.
Section 4. Waiver of Notice. Whenever notice is required
to be given of any annual or special meeting of the stockholders,
a written waiver thereof, signed by the person entitled to
notice, whether before or after the time stated in such notice,
shall be deemed equivalent to notice. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting
of the stockholders need be specified in any written waiver of
notice. Attendance of a person at a meeting of the stockholders
shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or
convened.
Section 5. Adjournment. When any meeting of the stock-
holders is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place to which the
<PAGE>
meeting is adjourned are announced at the meeting at which the
adjournment is taken. At the adjourned meeting any business may
be transacted which might have been transacted at the original
meeting. If the adjournment is for more than 30 days, or if
after such adjournment the Board of Directors shall fix a new
record date for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to
vote at such meeting.
Section 6. Quorum. At any meeting of the stockholders the
presence, in person or by proxy, of the holders of a majority of
the issued and outstanding shares of the Corporation entitled to
vote at such meeting shall be necessary in order to constitute a
quorum for the transaction of any business. If there shall not
be a quorum at any meeting of the stockholders, the holders of a
majority of the shares entitled to vote present at such meeting,
in person or by proxy, may adjourn such meeting from time to
time, without further notice to the stockholders other than an
announcement at such meeting, until holders of the amount of
shares required to constitute a quorum shall be present in person
or by proxy.
Section 7. Voting. Each stockholder shall be entitled to
one vote for each share of capital stock held by such stock-
holder. Voting need not be by ballot, except that all election
of directors shall be by written ballot unless otherwise provided
in the Certificate of Incorporation. Whenever any corporate
action is to be taken by vote of the stockholders, it shall,
except as otherwise required by law or by the Certificate of
Incorporation, be authorized by a majority of the votes cast at a
meeting of stockholders of the holders of shares entitled to vote
thereon, except that all elections shall be decided by a plural-
ity of the votes cast.
Section 8. Action Without a Meeting. Any action required
or permitted to be taken at any annual or special meeting of
stockholders may be taken without a meeting thereof, without
prior notice and without a vote, if a consent in writing, setting
forth the action so taken, shall be signed by the holders of out-
standing stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of such corporate action
without a meeting by less than unanimous written consent shall be
given to those stockholders who have not consented in writing.
Section 9. Record Date. The Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor
less than ten days before the date of any meeting of stock-
holders, nor more than sixty days prior to any other action, as
the record date for the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of the stockhold-
ers or any adjournment thereof, or to express consent to corpo-
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<PAGE>
rate action in writing without a meeting, or entitled to receive
payment of any dividend or distribution or allotment of any
rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any
other lawful action.
Section 10. Proxies. Each stockholder entitled to vote at
a meeting of stockholders or to express consent or dissent to
corporate action in writing without a meeting may authorize
another person or persons to act for him or her by proxy, but no
such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period.
ARTICLE II
Directors
Section 1. Number; Qualifications. The Board of Directors
shall consist of one or more members. The number of directors
shall be fixed by the Board of Directors, but shall not be less
than three or more than eight. Directors need not be stock-
holders of the Corporation.
Section 2. Term of Office. Each director shall hold office
until his or her successor is elected and qualified or until his
or her earlier death, resignation or removal.
Section 3. Meetings. A meeting of the Board of Directors
shall be held for the election of officers and for the trans-
action of such other business as may come before such meeting as
soon as practicable after the annual meeting of the stockholders.
Other regular meetings of the Board of Directors may be held at
such times as the Board of Directors of the Corporation may from
time to time determine. Special meetings of the Board of Direc-
tors may be called at any time by the President of the Corpora-
tion or by a majority of the directors then in office. Meetings
of the Board of Directors may be held within or without the State
of Delaware.
Section 4. Notice of Meetings; Waiver of Notice; Adjourn-
ment. No notice need be given of the first meeting of the Board
of Directors after the annual meeting of stockholders or of any
other regular meeting of the Board of Directors. Notice of a
special meeting of the Board of Directors, specifying the place,
date and hour thereof, shall be delivered personally, mailed or
telegraphed to each director at his or her address as such
address appears on the books of the Corporation at least two
business days (Saturdays, Sundays and legal holidays not being
considered business days for the purpose of these By-Laws) before
the date of such meeting. Whenever notice is required to be
given under any provision of the Certificate of Incorporation or
these By-Laws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a
3
<PAGE>
director at a special meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to
the transaction of any business because the meeting is not law-
fully called or convened. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the
stockholders, the directors or any committee of directors need be
specified in any written waiver of notice unless so required by
the Certificate of Incorporation or these By-Laws. A majority of
the directors present whether or not a quorum is present, may
adjourn any meeting to another time and place. Notice need not
be given of the adjourned meeting if the time and place to which
the meeting is adjourned are announced at the meeting at which
the adjournment is taken, and at the adjourned meeting any busi-
ness may be transacted that might have been transacted at the
original meeting.
Section 5. Quorum; Voting. A majority of the total number
of directors shall constitute a quorum for the transaction of
business. The vote of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the
Board of Directors.
Section 6. Participation by Telephone. Members of the
Board of Directors or any committee thereof may participate in a
meeting of the Board of Directors or such committee by means of a
conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each
other, and participation in a meeting by such means shall consti-
tute presence in person at such meeting.
Section 7. Action Without a Meeting. Any action required
or permitted to be taken at any meeting of the Board of Directors
or of any committee thereof may be taken without a meeting if all
members of the Board of Directors or such committee, as the case
may be, consent thereto in writing, and the writing or writings
are filed with the minutes of proceeding of the Board of Di-
rectors or of such committee.
Section 8. Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one
or more committees, each committee to consist of one or more of
the directors. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise
all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed by the
officers on all papers which may require it, but no such
committee shall have the power or authority in reference to (a)
amending the Certificate of Incorporation (except that a com-
mittee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted
by the Board of Directors, fix the designations and any of the
4
<PAGE>
preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of the assets of the
Corporation or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the
Corporation, or fix the number of shares of any series of stock
or authorize the increase or decrease of the shares of any
series); (b) adopting an agreement of merger or consolidation;
(c) recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation's property and
assets; (d) recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution; or (e) amending
these By-Laws and, unless the resolution expressly so provides,
no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. The Board of
Directors may designate one or more directors as alternate
members of any such committee, who may replace any absent or
disqualified member at any meeting of such committee. In the ab-
sence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified
from voting, whether or not constituting a quorum, may unanimous-
ly appoint another director to act at the meeting in the place of
such absent or disqualified member.
Section 9. Removal; Resignation. Any director or the
entire Board of Directors may be removed with or without cause,
by the holders of a majority of the shares then entitled to vote
at an election of directors. Any director may resign at any
time, upon written notice to the Corporation.
Section 10. Vacancies. Vacancies and newly created di-
rectorships resulting from any increase in the authorized number
of directors may be filled by a majority of directors then in of-
fice, although less than a quorum, or by a sole remaining direc-
tor. When one or more directors shall resign from the Board of
Directors, effective at a future date, a majority of the
directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold
office as provided above in the filling of other vacancies. A
director elected to fill a vacancy shall hold office for the
unexpired term of his or her predecessor and until his successor
is elected and qualified.
Section 11. Compensation. The Board of Directors may fix
the compensation of directors.
5
<PAGE>
ARTICLE III
Officers
Section 1. Election; Qualifications. At the first meeting
of the Board of Directors and as soon as practicable after each
annual meeting of stockholders, the Board of Directors shall
elect or appoint a Chairman of the Board, a President, one or
more Vice-Presidents, a Secretary and a Treasurer, and may elect
or appoint at such time or from time to time such additional of-
ficers as it deems advisable. No officer need be a director of
the Corporation. The office of Chairman of the Board may be
shared by two or more persons. Any number of offices may be held
by the same person, except that there shall always be two persons
who hold offices which entitle them to sign instruments and stock
certificates.
Section 2. Term of Office; Vacancies. Each officer shall
hold office until the election and qualification of his or her
successor or until his or her earlier death, resignation or
removal. Any vacancy occurring in any office, whether because of
death, resignation or removal, with or without cause, or other-
wise, shall be filled by the Board of Directors.
Section 3. Removal; Resignation. Any officer may be re-
moved from office at any time with or without cause by the Board
of Directors. Any officer may resign his or her office at any
time upon written notice to the Corporation.
Section 4. Powers and Duties of the Chairman of the Board.
The Chairman of the Board shall be the chief executive officer of
the Corporation and shall have the general charge and supervision
of its business affairs. The Chairman of the Board shall from
time to time make such reports concerning the Corporation as the
Board of Directors of the Corporation may require. The Chairman
of the Board shall preside at all meetings of the stockholders
and the Board of Directors. The Chairman of the Board shall have
such other powers and perform such other duties as may from time
to time be assigned to him or her by the Board of Directors.
Section 5. Powers and Duties of the President. The Presi-
dent shall be the chief operating and administrative officer of
the Corporation and shall have general charge of its operations
and administration. The President shall be given such other
titles and designations and shall have such other powers and
perform such other duties as may from time to time be assigned to
him or her by the Board of Directors.
Section 6. Powers and Duties of the Vice-Presidents. Each
of the Vice-Presidents shall be given such titles and desig-
nations and shall have such powers and perform such duties as may
from time to time be assigned to him or her by the Board of
Directors.
6
<PAGE>
Section 7. Powers and Duties of the Secretary. The Sec-
retary shall record and keep the minutes of all meetings of the
stockholders and of the Board of Directors in a book to be kept
for that purpose. The Secretary shall attend to the giving and
serving of all notices by the Corporation. The Secretary shall
be the custodian of, and shall make or cause to be made the
proper entries in, the minute book of the Corporation and such
other books and records as the Board of Directors may direct.
The Secretary shall be the custodian of the corporate seal of the
Corporation and shall affix or cause to be affixed such seal to
such contracts and other instruments as the Board of Directors
may direct. The Secretary shall have such other powers and shall
perform such other duties as may from time to time be assigned to
him or her by the Board of Directors.
Section 8. Powers and Duties of the Treasurer. The
Treasurer shall be the custodian of all funds and securities of
the Corporation. Whenever required by the Board of Directors,
the Treasurer shall render a statement of the Corporation's cash
and other accounts, and shall cause to be entered regularly in
the proper books and records of the Corporation to be kept for
such purpose full and accurate accounts of the Corporation's
receipts and disbursements. The Treasurer shall at all reason-
able times exhibit the Corporation's books and accounts to any
director of the Corporation upon application at the principal
office of the Corporation during business hours. The Treasurer
shall have such other powers and shall perform such other duties
as may from time to time be assigned to him or her by the Board
of Directors.
Section 9. Delegation. In the event of the absence of any
officer of the Corporation or for any other reason that the Board
of Directors may deem sufficient, the Board of Directors may at
any time or from time to time delegate all or any part of the
powers or duties of any officer to any other officer or officers
or to any director or directors.
ARTICLE IV
Stock
The shares of the Corporation shall be represented by
certificates signed by the Chairman of the Board, the President
or any Vice-President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary. Any of or
all the signatures on the certificate may be a facsimile.
ARTICLE V
Execution of Documents
All contracts, agreements, instruments, bills payable,
notes, checks, drafts, warrants or other obligations of the
Corporation shall be made in the name of the Corporation and
shall be signed by such officer or officers as the Board of
7
<PAGE>
Directors may from time to time designate.
ARTICLE VI
Seal
The seal of the Corporation shall contain the name of the
Corporation, the words "Corporate Seal", the year of its or-
ganization and the word "Delaware".
ARTICLE VII
Indemnification
Section 1. Indemnification. The Corporation hereby agrees
to hold harmless and indemnify any of its officers, directors,
employees or agents from and against, and to reimburse such
persons for, any and all judgments, fines, liabilities, amounts
paid in settlement and expenses, including attorneys' fees, in-
curred directly or indirectly as a result of or in connection
with any threatened, pending or completed action, suit or pro-
ceeding, whether civil, criminal, administrative or investiga-
tive, whether or not such action, suit or proceeding is by or in
the right of the Corporation to procure a judgment in its favor,
including an action, suit or proceeding by or in the right of any
other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or
other enterprise for which such person served in any capacity at
the request of the Corporation, to which such person is, was or
at any time becomes a party, or is threatened to be made a party,
or as a result of or in connection with any appeal therein, by
reason of the fact that such person is, was or at any time be-
comes a director, officer, employee or agent of the Corporation
or is or was serving or at any time serves such other corpora-
tion, partnership, joint venture, trust, employee benefit plan or
other enterprise in any capacity, whether arising out of any
breach of such person's fiduciary duty as a director, officer,
employee or agent of such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise under
any state or federal law or otherwise; provided, however, that
(i) indemnification shall be paid pursuant to this Article VII if
and only if such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful; and (ii) no indemnification shall be payable pursuant
to this Article VII if a court having jurisdiction in the matter
shall determine that such indemnification is not lawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reason-
ably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
8
<PAGE>
unlawful. No indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the
extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 2. Continuation of Indemnity. All agreements and
obligations of the Corporation contained herein shall continue
during the period such person shall serve as a director, officer,
employee or agent of the Corporation and shall continue there-
after so long as such person shall be subject to any possible
claim or threatened, pending or completed action, suit or pro-
ceeding, whether civil, criminal, administrative or investiga-
tive, by reason of the fact that such person was a director or
officer of the Corporation or served at the request of the
Corporation in any capacity for any other corporation, partner-
ship, joint venture, trust, employee benefit plan or other
enterprise.
Section 3. Advancement and Repayment of Expenses. Expenses
incurred by an officer, director, employee or agent in defending
any threatened or pending action, suit or proceeding, whether
civil, criminal, administrative or investigative, shall be paid
by the Corporation in advance of the final disposition thereof,
other than those expenses for which such director or officer is
not entitled to indemnification pursuant to the proviso to, or
the last sentence of, Section 1 of this Article VII. The Corpo-
ration shall make such payments upon receipt of (i) a written re-
quest made by such person for payment of such expenses, (ii) an
undertaking by or on behalf of such person to repay such amount
if it shall ultimately be determined that he is not entitled to
be indemnified by the Corporation as authorized herein and (iii)
evidence satisfactory to the Corporation as to the amount of such
expenses.
Section 4. Authorization. Any indemnification under this
Article VII (unless ordered by a court) shall be made by the Cor-
poration only as authorized in the specific case upon a determin-
ation that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the ap-
plicable standard of conduct set forth in Section 1 of this Arti-
cle VII. Such determination shall be made (i) by the Board of
Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii)
if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders
of the Corporation.
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Section 5. Notification and Defense of Claim. Promptly
after receipt by a person seeking indemnification pursuant to
this Article VII of notice of the commencement of any action,
suit or proceeding, such person will, if a claim in respect
thereof is to be made against the Corporation under this Article
VII, notify the Corporation of the commencement thereof; but the
omission so to notify the Corporation will not relieve it from
any liability which it may have to such person otherwise than
under this Article VII. With respect to any such action, suit or
proceeding as to which such person notifies the Corporation of
the commencement thereof:
A. The Corporation will be entitled to participate
therein at its own expense; and,
B. Except as otherwise provided below, to the extent
that it may wish, the Corporation jointly with any other in-
demnifying party similarly notified will be entitled to assume
the defense thereof, with counsel satisfactory to the person to
be indemnified. After notice from the Corporation to the person
to be indemnified of its election so to assume the defense
thereof, the Corporation will not be liable to such person under
this Article VII for any legal or other expenses subsequently
incurred by such person in connection with the defense thereof
other than reasonable costs of investigation or as otherwise
provided below. The person to be indemnified shall have the
right to employ his or her own counsel in such action, suit or
proceeding but the fees and expenses of such counsel incurred
after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of such person unless (i)
the employment of counsel by such person has been authorized by
the Corporation in connection with the defense of such action,
(ii) such person shall have reasonably concluded that there may
be a conflict of interest between the Corporation and such person
in the conduct of the defense of such action, or (iii) the Corpo-
ration shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and
expenses of counsel for such person shall be borne by the Corpo-
ration (it being understood, however, that the Corporation shall
not be liable for the expenses of more than one counsel for such
person in connection with any action or separate but similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances). The Corporation shall not
be entitled to assume the defense of any action, suit or proceed-
ing brought by or on behalf of the Corporation or as to which
such person shall have made the conclusion provided for in (ii)
above.
C. Anything in this Section 5 to the contrary not-
withstanding, the Corporation shall not be liable to indemnify
any person seeking indemnification under this Article VII for any
amounts paid in settlement of any action or claim effected with-
out its written consent. The Corporation shall not settle any
10
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action or claim in any manner which would impose any penalty or
limitation on the person to be indemnified without such person's
written consent. Neither the Corporation nor any such person
will unreasonably withhold their consent to any proposed
settlement.
Section 6. Nonexclusivity. The indemnification and ad-
vancement of expenses provided by or granted pursuant to this Ar-
ticle VII shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under the General Corporation Law of the State of
Delaware, the Corporation's Certificate of Incorporation, as
amended, the Corporation's By-Laws, as now in effect or as here-
after amended, any agreement, any vote of stockholders or direc-
tors, any applicable law, or otherwise.
Section 7. Indemnification of Other Expenses. In the event
any person seeking indemnification hereunder is required to bring
any action to enforce rights or to collect monies due under this
Article VII and is successful in such action, the Corporation
shall reimburse such person for all costs and expenses, including
attorney's fees, incurred by such person in connection with such
action.
Section 8. Length of Effectiveness. The indemnification
and advancement of expenses provided by or granted pursuant to
this By-Law shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the ben-
efit of the heirs, executors and administrators of such a person.
ARTICLE VIII
Amendment of By-Laws
These By-Laws may be amended or repealed, and any new By-Law
may be adopted, by the stockholders entitled to vote or by the
Board of Directors.
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May 15, 1995
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Gentlemen:
We refer to the Registration Statement on Form S-8 to
be filed by Acclaim Entertainment, Inc. (the "Company"), a
Delaware corporation, with the Securities and Exchange Commission
with respect to the registration of 6,000,000 shares of the
Company's common stock, par value $0.02 per share, for issuance
under the Company's 1988 Stock Option Plan.
We have made such examination as we have deemed
necessary for the purpose of this opinion. Based upon such
examination, it is our opinion that said 6,000,000 shares have
been duly authorized and, upon issuance in accordance with the
terms of stock option agreements or certificates issued under
said Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as Exhibit
5 to the Registration Statement.
Very truly yours,
ROSENMAN & COLIN
By /s/
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A Partner
