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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 24, 1999
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACTV, INC.
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
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(State or Other Jurisdiction of Incorporation or Organization)
94-2907258
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(I.R.S. Employer Identification No.)
1270 AVENUE OF THE AMERICAS, NEW YORK, NEW YORK 10020
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(Address, including Zip Code, of Principal Executive Offices)
1998 STOCK OPTION PLAN
1999 STOCK INCENTIVE PLAN
ACTV, INC. 401(K) PLAN
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(Full Titles of the Plans)
Copies To:
WILLIAM C. SAMUELS
CHIEF EXECUTIVE OFFICER JAY M. KAPLOWITZ, ESQ.
ACTV, INC GERSTEN, SAVAGE & KAPLOWITZ, LLP
1270 AVENUE OF THE AMERICAS 101 EAST 52ND STREET
NEW YORK, NEW YORK 10020 NEW YORK, NEW YORK 10022
(212) 217-1600 (212) 752-9700
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box [x]
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT BEING PROPOSED MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED PRICE PER SECURITY(1) PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, par value
$.10 per share(2) 2,347,890 $13.52 $31,747,056.25 $8,825.68
- -----------------------------------------------------------------------------------------------------------
</TABLE>
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(1) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of
calculating the registration fee and is based (a) as to the 421,000
shares of Common Stock issuable upon exercise of options granted under
the 1999 Stock Option Plan, upon the average price upon which such
options may be exercised, (b) as to the 1,034,000 shares of Common
Stock issuable upon exercise of options granted under the registrant's
1999 Stock Incentive Plan, upon the average price at which such
options may be exercised, and (c) as to the remaining 71,500 shares of
Common Stock reserved for issuance under the 1998 Stock Option Plan
and the remaining 684,000 shares of Common Stock reserved for issuance
under the 1999 Stock Incentive Plan and the 137,390 shares of Common
Stock reserved for issuance under the ACTV, Inc. 401(k) Plan, upon the
last sale closing price as reported on The Nasdaq National Market on
November 19, 1999 (within 5 days prior to the filing of this
Registration Statement) was $23.625.
(2) Pursuant to Rule 416, there are also being registered additional shares
of Common Stock as may become issuable pursuant to the anti-dilution
provisions of the 1998 Stock Option Plan and the 1999 Stock
Incentive Plan.
EXPLANATORY STATEMENT
This Registration Statement on Form S-8 registers, 492,500 shares of
Common Stock of ACTV, Inc. par value $.10 per share, for issuance upon
exercise of options granted under ACTV, Inc.'s 1998 Stock Option Plan,
1,718,000 shares of Common Stock of ACTV, Inc., for issuance upon exercise of
options granted under ACTV, Inc.'s 1999 Stock Incentive Plan and 137,390
shares of Common Stock for issuance pursuant to the ACTV, Inc. 401(k) Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
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This registration statement on Form S-8 under the Securities Act of
1933, as amended, will be filed with the Securities and Exchange Commission for
the registration of the shares of common stock offered by this prospectus. ACTV,
Inc. will provide without charge to each person to whom a copy of a Section
10(a) Prospectus hereunder is delivered, upon the oral or written request of
such person, a copy of any document incorporated in this registration statement
by reference, except exhibits to such documents. Requests for such information
should be directed to ACTV, Inc., 1270 Avenue of the Americas, Suite 2401, New
York, New York 10020, (212) 217-1600.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of certain documents by reference.
The following documents previously filed by the registrant with the
Securities and Exchange Commission are incorporated by reference in this
Registration Statement:
(1) The Company's Annual Report on Form 10-K for the Year Ended
December 31, 1998.
(2) The Company's Amended Annual Report on Form 10-K405A for the
Year Ended December 31, 1998.
(3) The Company's Proxy Statement on Schedule 14A filed on April 23,
1999.
(4) The Company's Amended Proxy Statement on Schedule A14A filed on
May 11, 1999.
(5) The Company's Quarterly Reports on Form 10-Q for the Quarters
Ended March 31, 1999, June 30, 1999 and September 30, 1999.
(6) The Company's Proxy Statement on Schedule 14A filed on April
25, 1998.
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment
indicating that all of the securities offered hereunder have been sold or
deregistering all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated by reference in this
registration statement shall be deemed to be modified or superseded for purposes
of this registration statement to the extent that a statement contained herein
or in any subsequently filed document that is also incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement. All information appearing in
this registration statement is qualified in its entirety by the information and
financial statements (including notes thereto) appearing in the documents
incorporated herein by reference, except to the extent set forth in the
immediately preceding statement.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus is delivered, upon the oral or written request
of such person, a copy of any document incorporated in this registration
statement by reference, except exhibits to such documents. Requests
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for such information should be directed to ACTV Inc., 1270 Avenue of the
Americas, Suite 2401, New York, New York 10020, (212) 217-1600.
Item 4. Description of securities
Not applicable.
Item 5. Interests of named experts
Not applicable.
Item 6. Indemnification of officers and directors
The Company's Restated Certificate of Incorporation contains a
provision, as permitted by Section 145 of the General Corporation Law of the
State of Delaware, that eliminates the personal liability of directors to the
Company and its stockholders for monetary damages for unintentional breach of
director's fiduciary duty to the Company. This provision does not permit the
elimination of, or any limitation on, the liability of a director for disloyalty
to the Company or its stockholders, for failing to act in good faith, for
engaging in intentional misconduct or a knowing violation of the law, for
obtaining an improper personal benefit or for paying a dividend or approving a
stock repurchase that was illegal under the General Corporation Law of the State
of Delaware.
The Restated Certificate of Incorporation and the By-laws of the
Company require the Company to indemnify directors and officers against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with specified actions, suits or proceedings, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation (a "derivative action")) if they acted in good faith
and in a manner they reasonably believed to be in the or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with defense or settlement of such an action. Moreover,
the General Corporation Law of the State of Delaware requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the Company.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, as amended, and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company will, unless in the
opinion of its counsel the matter has been settled by
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controlling precedent, submit to a court of appropriate jurisdiction the
question of 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.
Item 7. Exemption from registration claimed
Not applicable.
Item 8. Exhibits
5.1 Opinion of Gersten, Savage & Kaplowitz, LLP
5.2 Pursuant to instruction (b) under item 8 of Form S-8, the Registrant
undertakes that it will submit or has submitted the ACTV, Inc. 401(k)
Plan and any amendments thereto to the Internal Revenue Service in a
timely manner and has made or will make all changes required by the
Internal Revenue Service in order to qualify the ACTV, Inc. 401(k) Plan
under Section 401 of the Internal Revenue Code.
10.1 1999 Stock Incentive Plan (Incorporated by reference to the Company's
Proxy Statement on Form 14A filed on April 23, 1999, as amended on
March 11, 1999)
10.2 1998 Stock Option Plan (Incorporated by reference to the Company's
Proxy Statement on Schedule 14A filed on April 25, 1998)
23.1 Consent of Deloitte & Touche, LLP
23.2 Consent of Gersten, Savage & Kaplowitz, LLP (Included in Exhibit 5.1)
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to suit information in the
registration statement,
PROVIDED, HOWEVER, that paragraphs 9(a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the small business issuer
pursuant to Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
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(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the small business issuer pursuant to any charter provision,
by-law, contract, arrangement, statute, 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 small business issuer 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 small
business issuer 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 Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned thereunto
duly authorized in the City of New York, New York on the 23rd day of
November, 1999.
ACTV, INC.
By: /s/ WILLIAM C. SAMUELS
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William C. Samuels
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ WILLIAM C. SAMUELS Chairman and Chief Executive Officer 11/23/99
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William C. Samuels
/s/ DAVID REESE President, Chief Operating Officer 11/23/99
- ------------------------- and Director
David Reese
/s/ BRUCE J. CROWLEY Executive Vice President and Director 11/23/99
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Bruce J. Crowley
/s/ CHRISTOPHER C. CLINE Senior Vice President - Finance, Chief 11/23/99
- ------------------------- Financial Officer and Assistant Secretary
Christopher C. Cline
/s/ DAY L. PATTERSON Senior Vice President, General Counsel 11/23/99
- ------------------------- and Secretary
Day L. Patterson
/s/ WILLIAM FRANK Director 11/23/99
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William Frank
/s/ STEVEN W. SCHUSTER Director 11/23/99
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Steven W. Schuster
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EXHIBIT INDEX
5.1 Opinion of Gersten, Savage & Kaplowitz, LLP
10.1 1999 Stock Incentive Plan (Incorporated by reference to the Company's
Proxy Statement on Schedule 14A filed on April 23, 1999, as amended on
March 11, 1998)
10.2 1998 Stock Option Plan (Incorporated by reference to the Company's
Proxy Statement on Schedule 14A filed on April 25, 1998)
23.1 Consent of Deloitte & Touche, LLP
23.2 Consent of Gersten, Savage & Kaplowitz, LLP (Included in Exhibit 5.1)
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Exhibit 5.1
November 24, 1999
ACTV, Inc.
1270 Avenue of the Americas
New York, New York 10020
Gentlemen:
You have requested our opinion with respect to the offer and sale by
you, ACTV, Inc., a Delaware corporation (the "Company"), pursuant to a
registration Statement (the "Registration Statement") on Form S-8 under the
Securities Act of 1933, as amended (the "Act"), of (i) up to 492,500 shares
of common stock of ACTV, Inc., par value $.10 per share (the "Common Stock"),
issuable upon exercise of options available for grant under the Company's
1998 Stock Option Plan, (ii) up to 1,718,000 shares of Common Stock issuable
upon exercise of stock options available for grant under the Company's 1999
Stock Incentive Plan and (iii) 137,390 shares of Common Stock for pursuant to
the ACTV, Inc. 401(k) Plan (collectively the "Plan Shares").
We have examined the originals, or copies certified or otherwise
identified to our satisfaction, of such documents and corporate and public
records as we deem necessary as a basis for the opinion hereafter expressed.
With respect to such examination, we have assumed the genuineness of all
signatures appearing on all documents presented to us as originals, and the
conformity to the originals of all documents presented to us as conformed or
reproduced copies. Where factual matters relevant to such opinion were not
independently established, we have relied upon certificates of executive
officers and responsible employees and agents of the Company.
Based upon the foregoing, it is our opinion that the Plan Shares
have been duly and validly authorized and when sold, paid for and issued as
contemplated the 1998 Stock Option Plan, the 1999 Stock Incentive Plan and
the ACTV, Inc. 401(k) Plan, will be duly and validly issued and fully paid
and nonassessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement. In giving this consent, we do not thereby concede that
we come within the categories of persons whose consent is required by the Act
or the General Rules and Regulations promulgated thereunder.
Very truly yours,
/s/ GERSTEN, SAVAGE & KAPLOWITZ, LLP
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Gersten, Savage & Kaplowitz, LLP
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EXHIBIT 23.1
INDEPENDENT AUDITORS ACCOUNTANTS CONSENT
We consent to the incorporation by reference in this Registration
Statement of ACTV, Inc. on Form S-8 of our report dated March 11, 1999 appearing
in the Annual Report on Form 10-K of ACTV, Inc. for the year ended December 31,
1998.
DELOITTE & TOUCHE, LLP
New York, New York
November 24, 1999
