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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 19, 2001
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACTV, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
94-2907258
(I.R.S. Employer Identification No.)
225 PARK AVENUE, 18TH FLOOR, NEW YORK, NEW YORK 10003-1604
----------------------------------------------------------
(Address, including Zip Code, of Principal Executive Offices)
2000 STOCK INCENTIVE PLAN
-------------------------
(Full Title of the Plan)
Copies To:
DAY L. PATTERSON, ESQ. JAY M. KAPLOWITZ, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL GERSTEN, SAVAGE & KAPLOWITZ, LLP
ACTV, INC 101 EAST 52ND STREET
225 PARK AVENUE, 18TH FLOOR NEW YORK, NEW YORK 10022
NEW YORK, NEW YORK 10003-1604 (212) 752-9700
(212) 217-1600
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
<TABLE>
<CAPTION>
----------------------------- ---------------------- ----------------------------- ----------------------- -------------------
TITLE OF SECURITIES TO BE AMOUNT BEING PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED PRICE PER SECURITY (1) AGGREGATE OFFERING REGISTRATION FEE
PRICE
----------------------------- ---------------------- ----------------------------- ----------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, par value 3,379,665 $8.55 $28,896,135.00 $7,224.04
$.10 per share (2)
----------------------------- ---------------------- ----------------------------- ----------------------- -------------------
Common Stock, par value 620,335 $4.906 $3,043,363.50 $760.85
$.10 per share (2)
----------------------------- ---------------------- ----------------------------- ----------------------- -------------------
TOTAL 4,000,000 $7,984.89
----------------------------- ---------------------- ----------------------------- ----------------------- -------------------
</TABLE>
(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 3,379,665
shares of Common Stock issuable upon exercise of options granted under
the registrant's 2000 Stock Incentive Plan, upon the average price upon
which such options may be exercised, and (b) as to the remaining
620,335 shares of Common Stock reserved for issuance under the
registrant's 2000 Stock Incentive Plan, upon the last sale price as
reported on The Nasdaq National Market on January 17, 2001 (within 5
days prior to the filing of this Registration Statement) was $4.906.
(2) Pursuant to Rule 416, there are also being registered additional shares
of Common Stock that may become issuable pursuant to the anti-dilution
provisions of the 2000 Stock Incentive Plan.
EXPLANATORY STATEMENT
This registration statement on Form S-8 registers 4,000,000 shares of
Common Stock of ACTV, Inc., par value $.10 per share, for issuance upon exercise
of options granted under ACTV, Inc.'s 2000 Stock Incentive Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* 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.
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., 225 Park Avenue, 18th Floor, New York, New
York 10003-1604, Telephone (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 ACTV, Inc. (the "Company")
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, 1999.
(2) The Company's Proxy Statement on Schedule 14A filed on April
17, 2000.
(3) The Company's Amended Proxy Statement on Schedule A14A filed
on May 3, 2000.
(4) The Company's Quarterly Reports on Form 10-Q for the Quarters
Ended March 31, 2000 and September 30, 2000 and Form 10-Q/A
for the Quarter Ended June 30, 2000.
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.
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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 for such
information should be directed to ACTV Inc., 225 Park Avenue, 18th Floor, New
York, New York 10003-1604, Telephone (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
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Company 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 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
10.1 2000 Stock Incentive Plan (incorporated by reference to the Company's
Proxy Statement on Schedule 14A filed on April 17, 2000, as amended on
May 3, 2000)
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(1)(i) and 9(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 Company pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(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
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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 Company 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
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 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 19th day of January,
2001.
ACTV, INC.
By: /s/ William C. Samuels
-------------------------------
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ William C. Samuels
------------------------------------ Chairman, Chief Executive Officer and Director 1/19/01
William C. Samuels
/s/ Bruce J. Crowley
------------------------------------ Executive Vice President, Vice Chairman and Director 1/19/01
Bruce J. Crowley
/s/ Joseph P. Dwyer
------------------------------------ Executive Vice President and Chief Financial Officer 1/19/01
Joseph P. Dwyer
/s/ William A. Frank
------------------------------------ Executive Vice President and Director 1/19/01
William A. Frank
/s/ Day L. Patterson
------------------------------------ Executive Vice President, General Counsel and Secretary 1/19/01
Day L. Patterson
------------------------------------ President and Director 1/19/01
David Reese
------------------------------------ Director 1/19/01
Melvyn N. Klein
/s/ Steven W. Schuster
------------------------------------- Director 1/19/01
Steven W. Schuster
------------------------------------- Director 1/19/01
John C. Wilcox
</TABLE>
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EXHIBIT INDEX
5.1 Opinion of Gersten, Savage & Kaplowitz, LLP
10.1 2000 Stock Incentive Plan (incorporated by reference to the Company's
Proxy Statement on Schedule 14A filed on April 17, 2000, as amended on
May 3, 2000)
23.1 Consent of Deloitte & Touche, LLP
23.2 Consent of Gersten, Savage & Kaplowitz, LLP (included in Exhibit 5.1)
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