<PAGE>
As filed with the Securities and Exchange Commission on May 6, 1998
Registration No. 333-______
===============================================================================
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.
1998 Employee Stock Purchase Plan
(Full title of the plan)
-------------------
Gregory E. Fischbach Copy to:
Chief Executive Officer Jayshree Parthasarathy, Esq.
One Acclaim Plaza Rosenman & Colin LLP
Glen Cove, New York 11542 575 Madison Avenue
(516) 656-5000 New York, New York 10022
(Name, address and telephone (212) 940-8800
number of agent for service)
-------------------
CALCULATION OF REGISTRATION FEE
===============================================================================
Title of Proposed
securities Amount maximum Proposed maximum Amount of
to be to be offering price aggregate registration
registered registered per share* offering price* fee
===============================================================================
Common
Stock,
par value
$0.02 per
share.... 3,000,000 $7.3125 $21,937,500 $6,472
===============================================================================
* Estimated solely for the purpose of calculating the registration fee;
computed, pursuant to Rule 457(c) and (h), 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 4, 1998.
===============================================================================
<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, 1997, filed on November 12, 1997 (File No. 0-16986);
(b) Quarterly Report on Form 10-Q for the quarter ended
November 30, 1997, filed on January 14, 1998 (File No. 0-16986);
(c) Quarterly Report on Form 10-Q for the quarter ended
February 28, 1998, filed on April 8, 1998 (File No. 0-16986); and
(d) 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. 1998 Employee Stock Purchase Plan.
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
(incorporated by reference to Exhibit 4(d) to the
Company's Registration Statement on Form S-8,
Registration No. 33-59483, filed on May 19, 1995
(the "Form S-8")).
4(e) - Amended and Restated By-Laws of the Company
(incorporated by reference to Exhibit 4(e) to the
Form S-8).
II - 2
<PAGE>
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 LLP.
*23(a) - Consent of KPMG Peat Marwick LLP (included on page II-7).
*23(b) - Consent of Grant Thornton LLP (included on page II-8).
*23(c) - Consent of Rosenman & Colin LLP (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 4th day
of May, 1998.
ACCLAIM ENTERTAINMENT, INC.
(Registrant)
By /s/ 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gregory E. Fischbach Co-Chairman of the Board; May 4, 1998
- -------------------------- Chief Executive Officer;
Gregory E. Fischbach President; Director
/s/ James Scoroposki Co-Chairman of the Board; May 4, 1998
- -------------------------- Senior Executive Vice
James Scoroposki President; Treasurer;
Secretary; Director; Acting
Chief Financial and Accounting
Officer
/s/ Kenneth L. Coleman Director May 4, 1998
- --------------------------
Kenneth L. Coleman
/s/ Bernard J. Fischbach Director May 4, 1998
- --------------------------
Bernard J. Fischbach
/s/ Robert H. Groman Director May 4, 1998
- --------------------------
Robert H. Groman
/s/ James Scibelli Director May 4, 1998
- --------------------------
James Scibelli
Director May , 1998
- --------------------------
Michael Tannen
</TABLE>
II - 6
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors
Acclaim Entertainment, Inc.:
We consent to the use in this Registration Statement on Form S-8 of Acclaim
Entertainment, Inc. of our report dated November 5, 1997 incorporated by
reference herein.
Our report dated November 5, 1997 contains an explanatory paragraph that states
that the Company's significant losses from operations in fiscal 1997 and 1996
and its working capital and stockholders' deficiencies at August 31, 1997 raise
substantial doubt about its ability to continue as a going concern. The
consolidated financial statements do not include any adjustments that might
result from the outcome of that uncertainty. The report also indicates that we
were unable to review the fiscal 1996 selected quarterly data in accordance
with professional standards.
KPMG PEAT MARWICK LLP
New York, New York
May 4, 1998
II - 7
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We have issued our report dated December 8, 1995 accompanying the consolidated
financial statements and schedule for the year ended August 31, 1995, included
in the Annual Report of Acclaim Entertainment, Inc. on Form 10-K for the year
ended August 31, 1997. We hereby consent to the incorporation by reference of
said report in the Registration Statement of Acclaim Entertainment, Inc. on
Form S-8.
Our report dated December 8, 1995 contains an emphasis paragraph as to
uncertainty relating to the eventual outcome of certain class action lawsuits.
The fiscal 1995 consolidated financial statements do not include any provision
for any liability that might result upon the resolution of these matters.
GRANT THORNTON LLP
New York, New York
May 4, 1998
II - 8
<PAGE>
Exhibit 4.(a)
<PAGE>
ACCLAIM ENTERTAINMENT, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Effective as of May 4, 1998)
The following constitutes the provisions of the Employee Stock
Purchase Plan (herein called the "Plan") of Acclaim Entertainment, Inc.
(herein called the "Company").
1. Purpose. The purpose of the Plan is to provide employees of the
Company and its subsidiaries with an opportunity to purchase shares of Common
Stock of the Company through payroll deductions. It is the intention of the
Company that the Plan qualify as an Employee Stock Purchase Plan" under
Section 423 of the Code. The provisions of the Plan shall, accordingly, be
construed so as to extend and limit participation in a manner consistent with
the requirements of that section of the Code.
2. Definitions.
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" means the common stock, $0.02 par value, of
the Company.
(d) "Compensation" means base pay plus incentives, bonuses,
royalties and overtime.
(e) "Continuous Status as an Employee" shall mean the absence
of any interruption or termination of service as an Employee. Continuous
Status as an Employee shall not be considered interrupted in the case of a
leave of absence agreed to in writing by the Company, provided that such leave
is for a period of not more than ninety (90) days or re-employment upon the
expiration of such leave is guaranteed by contract or statute.
(f) "Employee" means any person, including an officer, who is
an employee of the Company or a Designated Subsidiary whose customary
employment is at least twenty (20) hours per week and more than five (5)
months in any calendar year.
(g) "Designated Subsidiary" means a Subsidiary which has been
designated by the Board in its sole discretion as eligible to participate in
the Plan.
(h) "Exercise Date" means the last business day of each
Exercise Period in an Offering Period.
(i) "Exercise Period" means a six-month period commencing on an
Offering Date, or on the first business day after any Exercise Date in an
Offering Period provided however, that the first Exercise Period under the
Plan shall end on the later to occur of six (6) months after the Offering Date
and the date of stockholder approval of the Plan; provided, further, however,
that the second Exercise Period under the Plan shall be shortened by the
number of days, if any, by which the first Exercise Period exceeds six (6)
months.
(j) "Offering Date" means the first day of each Offering Period
of the Plan.
(k) "Offering Period" means a period of twenty-four (24) months
consisting of four (4) Exercise Periods during which options granted pursuant
to the Plan may be exercised.
<PAGE>
(l) "Subsidiary" means any corporation in which the Company owns,
directly or indirectly, 50% or more of the voting shares.
3. Eligibility.
(a) General Rule. Any person who is an Employee on the Offering
Date of a given Offering Period shall be eligible to participate in such
Offering Period under the Plan, subject to the requirements of paragraph 5(a)
and the limitations imposed by Section 423(b) of the Code; provided, however,
that an Employee working in a country whose laws make participation in the
Plan impractical and/or illegal, shall not be eligible to participate in the
Plan.
(b) Exceptions. Any provisions of the Plan to the contrary
notwithstanding, no Employee shall be granted an option under the Plan if (i)
immediately after the grant, such Employee (or any other person whose stock
ownership shall be attributed to such Employee pursuant to Section 424(d) of
the Code) would own shares and/or hold outstanding options to purchase shares
possessing five percent (5%) or more of the total combined voting power or
value of all classes of shares of the Company or of any Subsidiary of the
Company, or (ii) the rate of withholding under such option would permit the
employee's rights to purchase shares under all employee stock purchase plans
(described in Section 423 of the Code) of the Company and its Subsidiaries to
accrue (i.e., become exercisable) at a rate which exceeds twenty-five thousand
dollars ($25,000) of fair market value of such shares (determined at the time
such option is granted) for each calendar year in which such option is
outstanding at any time.
4. Offering Period. The Plan shall be implemented by consecutive
Offering Periods with a new Offering Period commencing on or about each June 1
and December 1. The Board of Directors of the Company shall have the power to
change the duration of an Offering Period with respect to future offerings
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.
5. Participation.
(a) An Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions on the form
provided by the Company and filing it with payroll not less than fifteen (15)
days prior to the Offering Date of the first Offering Period with respect to
which it is to be effective, unless a later time for filing the subscription
agreement is set by the Compensation Committee for all eligible Employees with
respect to such Offering Period. Once enrolled, the Employee remains enrolled
in each subsequent Offering Period of the Plan at the designated payroll
deduction unless the Employee withdraws by providing the Company with a
written notice of withdrawal or files a new subscription agreement prior to
the applicable Offering Date changing the Employee's designated payroll
deduction. An Employee may participate in only one Offering Period at a time.
(b) Payroll deductions for a participant shall commence with
the first payroll following the Offering Date, or the first payroll following
the date of valid filing of the subscription agreement, whichever is later,
and shall end when terminated by the participant as provided in paragraph 10.
6. Payroll Deductions.
(a) At the time a participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on each
payday during all subsequent Offering Periods at a rate not exceeding ten
percent (10%), or such other rate as may be determined from time to time by
the Board, of the Compensation which he or she would otherwise receive on such
payday, provided that the aggregate of such payroll deductions during any
Offering Period shall not exceed ten percent (10%), or such other percentage
as may be determined from time to
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<PAGE>
time by the Board, of the Compensation which he or she would otherwise have
received during said Offering Period.
(b) All payroll deductions authorized by a participant shall be
credited to his or her account under the Plan. A participant may not make any
additional payments into such account.
(c) A participant may discontinue his or her participation in
the Plan as provided in paragraph 10, or may change the rate of his or her
payroll deduction during an Offering Period by completing and filing with the
Company a new authorization for payroll deduction, provided that the
Compensation Committee of the Board (the "Compensation Committee") or the
Board may, in its discretion, impose reasonable and uniform restrictions on
participants' ability to change the rate of payroll deductions. The change in
rate shall be effective no later than fifteen (15) days following the
Company's receipt of the new authorization. A participant may decrease or
increase the amount of his or her payroll deductions as of the beginning of an
Offering Period by completing and filing with the Company, at least fifteen
(15) days prior to the beginning of such Offering Period, a new payroll
deduction authorization.
(d) If a participant decreases his or her payroll deduction to
0% during an Exercise Period, his or her participation in the Offering Period
shall continue and payroll deductions shall commence at the rate provided in
the participant's previous subscription agreement at the beginning of the next
succeeding Exercise Period, unless otherwise directed by the participant on
the election form provided by the Company.
(e) Notwithstanding the foregoing, to the extent necessary, but
only to such extent, to comply with Section 423(b)(8) of the Code and
paragraph 3(b) herein, a participant's payroll deductions may be automatically
decreased to 0% at such time during any Exercise Period. Payroll deductions
shall commence at the rate provided in such participant's subscription
agreement at the beginning of the next succeeding Exercise Period, unless
terminated by the participant as provided in paragraph 10.
7. Grant of Option.
(a) On each Offering Date, each participant shall be granted an
option to purchase on each Exercise Date (at the per share option price) a
number of full shares of Common Stock arrived at by dividing such
participant's total payroll deductions to be accumulated prior to such
Exercise Date and retained in the participant's account as of the Exercise
Date by the lower of (i) eighty-five percent (85%) of the fair market value of
a share of Common Stock at the Offering Date and (ii) eighty-five percent
(85%) of the fair market value of a share of Common Stock at the Exercise
Date; provided, however, that the maximum number of shares a participant may
purchase during each Offering Period shall be equal to the lesser of (i) the
quotient obtained by dividing $50,000 by the fair market value of a share of
Common Stock on the Offering Date and (ii) the "Maximum Cap" for each Offering
Period; and provided further that such purchase shall be subject to the
limitations set forth in Paragraphs 3(b) and 11 hereof. The "Maximum Cap" for
each Offering Period shall be the number of shares purchasable under the Plan
during that Offering Period with the maximum payroll deductions permitted by
paragraph 6(e) hereof, based upon the fair market value of the Common Stock at
the beginning of the Offering Period. The fair market value of a share of
Common Stock shall be determined as provided in paragraph 7(b) herein.
(b) The option price per share of a share of Common Stock shall
be the lower of: (i) eighty-five percent (85%) of the fair market value of a
share of Common Stock at the Offering Date; and (ii) eighty-five percent (85%)
of the fair market value of a share of Common Stock at the Exercise Date. The
fair market value 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 Common
Stock on the business day preceding such date or, if there is no sale of the
Common Stock on such business day, the average of the bid and asked prices on
such exchange or system at the close of trading on such business day or, if
the shares
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<PAGE>
of 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 Common Stock on such
date as shall be determined in good faith by the Board.
8. Exercise of Option. Unless a participant withdraws from the
Offering Period as provided in paragraph 10, his or her option for the
purchase of shares will be exercised automatically at each Exercise Date, and
the maximum number of full shares subject to option will be purchased at the
applicable option price with the accumulated payroll deductions in his or her
account. The shares purchased upon exercise of an option hereunder shall be
deemed to be transferred to the participant on the Exercise Date. During his
or her lifetime, a participant's option to purchase shares hereunder is
exercisable only by the participant.
9. Delivery. As promptly as practicable after each Exercise Date of
an Offering Period, the Company shall arrange delivery to each participant, as
appropriate, of a certificate representing the shares purchased upon exercise
of his or her option. Any cash remaining to the credit of a participant's
account under the Plan after a purchase by him or her of shares at the
Exercise Date of each Offering Period which merely represents a fractional
share shall be credited to the participant's account for the next subsequent
Offering Period; any additional cash shall be returned to said participant.
10. Withdrawal: Termination of Employment.
(a) A participant may withdraw all, but not less than all, the
payroll deductions credited to his or her account under the Plan at any time
prior to an Exercise Date by giving written notice to the Company on a form
provided for such purpose. If the participant withdraws from the Offering
Period, all of the participant's payroll deductions credited to his or her
account will be paid to the participant as soon as practicable after receipt
of the notice of withdrawal and his or her option for the current Offering
Period will be automatically canceled, and no further payroll deductions for
the purchase of shares will be made during such Offering Period or subsequent
Offering Periods, except pursuant to a new subscription agreement filed in
accordance with paragraph 6 hereof.
(b) Upon termination of the participant's Continuous Status as
an Employee prior to an Exercise Date of an Offering Period for any reason,
including retirement or death, the payroll deductions accumulated in his or
her account will be returned to him or her as soon as practicable after such
termination or, in the case of death, to the person or persons entitled
thereto under paragraph 14, and his or her option will be automatically
canceled.
(c) In the event an Employee fails to remain in Continuous
Status as an Employee for at least twenty (20) hours per week during an
Offering Period in which the Employee is a participant, he or she will be
deemed to have elected to withdraw from the Plan, and the payroll deductions
credited to his or her account will be returned to the participant and the
option canceled.
(d) A participant's withdrawal from an Offering Period will not
have any effect upon his or her eligibility to participate in a succeeding
Offering Period or in any similar plan that may hereafter be adopted by the
Company.
11. Interest. No interest shall accrue on the payroll deductions of
a participant in the Plan.
12. Stock.
(a) The number of shares of Common Stock which shall be
reserved for sale under the Plan shall be 3,000,000, subject to adjustment
upon changes in capitalization of the Company as provided in paragraph 18. The
shares to be sold to participants in the Plan may be, at the election of the
Company, either treasury shares or shares authorized but unissued. If the
total number of shares which would otherwise be subject to options granted
pursuant to paragraph 7(a) hereof on the Offering Date of an Offering Period
exceeds the number of shares then available under the Plan (after deduction of
all shares for which options have been exercised or are then
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<PAGE>
outstanding), the Company shall make a pro rata allocation of the shares
remaining available for option grant in as uniform and equitable a manner as is
practicable. In such event, the Company shall given written notice of such
reduction of the number of shares subject to the option to each participant
affected thereby and shall return any excess funds accumulated in each
participant's account as soon as practicable after the affected Exercise Date
of such Offering Period.
(b) The participant will have no interest or voting rights in
shares covered by his or her option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan will
be registered in the name of the participant.
13. Administration. The Plan shall be administered by the
Compensation Committee. The administration, interpretation or application of
the Plan by the Compensation Committee shall be final, conclusive and binding
upon all participants.
14. Designation of Beneficiary.
(a) A participant may file a written designation of a
beneficiary who is to receive shares and/or cash, if any, from the
participant's account under the Plan in the event of such participant's death
at a time when cash or shares are held for his or her account.
(b) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of a
participant in the absence of a valid designation of a beneficiary who is
living at the time of such participant's death, the Company shall deliver such
shares and/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 discretion, may deliver
such shares and/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 reasonably
designate.
15. Transferability. 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 paragraph 14 hereof) by the participant. Any
such attempt at assignment, transfer, pledge or other disposition shall be
without effect, except that the Company may treat such act as an election to
withdraw funds in accordance with paragraph 10.
16. Use of Funds. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose,
and the Company shall not be obligated to segregate such payroll deductions.
17. Reports. Individual accounts will be maintained for each
participant in the Plan. Statements of account will be given to participating
Employees as soon as practicable following each Exercise Date.
18. Adjustments Upon Changes in Capitalization. In the event that a
dividend shall be declared upon the Common Stock payable in shares of Common
Stock, the number of shares of Common Stock then subject to any option and the
number of shares of Common Stock which may be purchased upon the exercise of
options granted under the Plan but not yet covered by an option shall be
adjusted by adding to each share the number of shares which would be
distributed 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 Common Stock shall be changed into or
exchanged for a different number or kind of share of stock or other securities
of the Company
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<PAGE>
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 Common Stock then subject to any option and for
each share of Common Stock which may be purchased upon the exercise of options
granted under the Plan but not yet covered by an option, the number and kind of
shares of stock or other securities into which each outstanding share of Common
Stock shall be so changed or for which each such share shall be exchanged.
In the event that there shall be any change, other than as
specified in the first paragraph of Section 18 hereof, in the number or kind
of outstanding shares of 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.
In the case of any substitution or adjustment in accordance
with the provisions of this Section 18, 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 18.
No adjustment or substitution provided for in this Section 18
shall require the Company to sell a fractional share under any option.
In the event of 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
exercise of each option and/or terminate the same within a reasonable time
thereafter.
19. Amendment or Termination. The Board may at any time and for any
reason terminate or amend the Plan. Except as provided in paragraph 18, no
such termination will affect options previously granted. Except as provided in
paragraph 18, no amendment may make any change in any option theretofore
granted which adversely affects the rights of any participant. In addition, to
the extent necessary, but only to such extent, to comply with Section 423 of
the Code (or any successor rule or provision or any other applicable law or
regulation), the Company shall obtain stockholder approval of an amendment in
such a manner and to such a degree as so required.
20. Notices. All notices or other communications by a participant to
the Company in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or
by the person, designated by the Company for the receipt thereof.
21. Stockholder Approval. Continuance of the Plan shall be subject to
approval by the stockholders of the Company within twelve (12) months after
the date the Plan is adopted. Such stockholder approval shall be obtained in
the manner and degree required under the Delaware General Corporation Law.
22. Conditions Upon Issuance 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 Exchange Act of 1934, as
amended, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange 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.
As a condition to the exercise of an option, if required by
applicable securities laws, the Company may require the participant for whose
account the option is being exercised to represent and warrant at the time of
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<PAGE>
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any
of the aforementioned applicable provisions of law.
23. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board or its approval by the stockholders of the
Company as described in paragraph 21. It shall continue in effect for a term
of twenty (20) years unless sooner terminated under paragraph 19.
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<PAGE>
Exhibit 5
<PAGE>
May 6, 1998
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
3,000,000 shares of the Company's common stock, par value $0.02 per share, for
issuance under the Company's 1998 Employee Stock Purchase Plan (the "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
3,000,000 shares have been duly authorized and, upon issuance in accordance
with the terms of the 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 LLP
By /s/
------------------------------------
A Partner
JP
