<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 31, 1998.
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
THQ INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 13-3541686
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
5016 NORTH PARKWAY CALABASAS
CALABASAS, CALIFORNIA 91302
(818) 591-1310
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
BRIAN J. FARRELL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
THQ INC.
5016 NORTH PARKWAY CALABASAS
CALABASAS, CALIFORNIA 91302
(818) 591-1310
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
WITH A COPY TO:
KENNETH H. LEVIN, ESQ.
SIDLEY & AUSTIN
555 WEST FIFTH STREET
LOS ANGELES, CALIFORNIA 90013
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Section 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of this prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SHARES AMOUNT TO BE AGGREGATE PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) REGISTRATION FEE(1)
- -------------------------------------------------------------------------------------------------------------------------
Common Stock, par value
$.01 per share......... 236,787 shares $28.50 $6,748,430 $1,991
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 and was based on
the average of the high and low prices of the Common Stock on the NASDAQ
National Market on July 29, 1998 as reported by the National Association of
Securities Dealers Automated Quotation System.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
PROSPECTUS
SUBJECT TO COMPLETION, DATED JULY 31, 1998
236,787 SHARES
COMMON STOCK
THQ INC.
This Prospectus relates to 236,787 shares of common stock, par value $.01
per share (the "Common Stock"), of THQ Inc., a Delaware corporation (together
with its subsidiaries, the "Company"), that may be offered from time to time by
certain holders (the "Selling Shareholders"). See "Selling Shareholders." All of
the shares of Common Stock offered hereby (the "Offered Shares") were issued by
the Company on May 1, 1998 in connection with the Company's acquisition of
GameFx, Inc. ("Game Fx").
The Company will not receive any of the proceeds from the sale of the
Offered Shares. The price to public for the Offered Shares and the proceeds to
the Selling Shareholders will depend upon the market price of such securities
when sold. The Selling Shareholders may, from time to time, sell the Offered
Shares at market prices prevailing on the NASDAQ National System Market ("NASDAQ
NMS") at the time of sale or in another manner. The Selling Shareholders may
engage brokers or dealers to sell the Common Stock and will be responsible for
all commissions and discounts, if any, so incurred. See "Plan of Distribution."
The Common Stock is quoted on the NASDAQ NMS under the trading symbol
"THQI." On July 29, 1998, the last reported sale price of the Common Stock on
NASDAQ NMS was $27 3/4 per share.
------------------------
THE SECURITIES ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF RISK. SEE
"FORWARD-LOOKING STATEMENTS AND RISK FACTORS" ON PAGE 3 FOR A DISCUSSION OF
CERTAIN FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN
THE SECURITIES OFFERED HEREBY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
THE DATE OF THE PROSPECTUS IS , 1998
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's Regional Offices at 7 World Trade Center, Suite 1300, New York, New
York 10048 and Citicorp Center, 500 Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can also be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. The Commission maintains a site on the World Wide Web
at http://www.sec.gov that contains reports, proxy and information statements
and other information regarding registrants that file electronically with the
Commission. The Company's Common Stock is quoted on the NASDAQ NMS under the
trading symbol "THQI", and such reports, proxy statements, and other information
concerning the Company can also be inspected at the offices of the National
Association of Securities Dealers, Inc. at 1735 K Street, N.W., Washington, DC
20006.
The Company has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Offered Shares. This Prospectus,
which constitutes a part of the Registration Statement, does not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission or are
contained in exhibits and schedules to the Registration Statement as permitted
by the rules and regulations of the Commission. Statements contained in this
Prospectus as to the contents of any agreement or other document filed as an
exhibit to the Registration Statement are not necessarily complete, and in each
instance reference is made to the copy of such agreement or document so filed,
each such statement being qualified in all respects by such reference. For
further information with respect to the Company and the Offered Shares,
reference is made to the Registration Statement and the exhibits thereto.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company (Commission File No. 0-18813)
with the Commission under the Exchange Act are incorporated in this Prospectus
by reference and are made a part hereof:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1997;
(3) The Company's Current Reports on Form 8-K dated January 6, March 30,
May 1, and July 28, 1997; and
(4) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A , filed on September 23, 1991.
Each document filed by the Company with the Commission subsequent to the
date of this Prospectus pursuant to Sections 13(a), 14 or 15(d) of the Exchange
Act and prior to termination of the offering made hereby shall be deemed to be
incorporated by reference in this Prospectus and shall be part hereof from the
date of filing of such document.
Any statement contained herein or in a document incorporated or deemed to
be incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained in this
Prospectus (in the case of a statement in a previously filed document
incorporated or deemed to be incorporated by reference herein), or in any other
subsequently filed document that is also incorporated or deemed to be
incorporated by reference herein, modifies or supersedes such prior statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
2
<PAGE> 4
Copies of all documents incorporated herein by reference, other than
exhibits to such documents not specifically incorporated by reference therein,
will be provided without charge to each person to whom this Prospectus is
delivered, upon oral or written request to THQ Inc., 5016 North Parkway
Calabasas, Calabasas, California 91302, Attention: Vice President - Finance and
Administration, telephone (818) 591-1310.
FORWARD-LOOKING STATEMENTS AND RISK FACTORS
This Prospectus contains, or incorporates by reference, certain statements
that may be deemed "forward-looking statements" within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act. All statements
relating to the Company's objectives, strategies, plans, intentions and
expectations, and all statements (other than statements of historical facts)
that address actions, events or circumstances that the Company or its management
expects, believes or intends will occur in the future, are forward-looking
statements. All forward-looking statements involve risks and uncertainties that
could cause actual results to differ materially from historical results or those
anticipated in the forward-looking statements, including without limitation
risks and uncertainties relating to the following: the Company's ability to
timely obtain licenses for, develop and market new interactive entertainment
software titles to replace declining revenues from older titles; the
unpredictability of the level of sales that a particular title will generate,
and the corresponding risk that the Company may not recover its prepaid
royalties, guarantees and development costs; uncertainties relating to the
timing and amount of discounts, allowances and returns the Company will offer to
retailers; significant quarterly fluctuations in the Company's sales and
operating results; the effect of substantial customer concentration and credit
risk; the Company's dependence on the platform manufacturers for licenses and
manufacturing; fluctuations in both the absolute and relative popularity of
those platforms; the effect of changes in the policies of the platform
manufacturers; risks associated with the acquisition of other companies and the
integration of the operations of such other companies with those of the Company;
the effects of competition in the Company's industry; uncertainties associated
with the Company's ability to attract and retain key personnel; the inability of
third parties to achieve so-called "year 200 compliance"; the volatility of the
market price of the Common Stock; and the other risks and uncertainties set
forth in the Company's Current Report on Form 8-K dated March 31, 1998 and in
the annual, quarterly and current reports and proxy statements of the Company
incorporated by reference herein. The Company does not undertake to publicly
update or revise any forward-looking statement, whether as a result of new
information, future events or otherwise.
THE COMPANY
THQ develops, publishes and distributes interactive entertainment software
for the leading hardware platforms in the home video game market. The Company
currently publishes titles for Sony's PlayStation, Nintendo 64, Nintendo Game
Boy and personal computers in most interactive software genres, including
action, adventure, driving, fighting, puzzle, role playing, simulation, sports
and strategy. The Company's customers include Wal-Mart, Toys "R" Us, Kay Bee
Toys, Target, Electronics Boutique, Best Buy, other national and regional
retailers, discount store chains and specialty retailers.
The Company's predecessor (T.HQ, Inc., a New York Corporation) was formed
in 1989. In 1998, the Company reincorporated in Delaware and changed its name to
its current name. The Company's principal executive offices are located at 5016
North Parkway Calabasas, Calabasas, California 91302; and its telephone number
is (818) 591-1310.
RECENT DEVELOPMENTS
In May 1998, the Company acquired GameFx for consideration consisting of
approximately 237,000 shares of Common Stock and approximately $800,000 in cash.
Founded in 1996 by C. Noah Davis and certain investors, GameFx focuses on the
development of interactive software utilizing proprietary 3-D acceleration
technology. Upon the completion of this acquisition, Mr. Davis became the Chief
Technology Officer of the Company, and Mr. Davis continues to serve as the
President of GameFx.
3
<PAGE> 5
The Company believes that the market for 3-D accelerated games is rapidly
expanding. The acquisition of GameFx provides the Company with proprietary 3-D
graphics technology, which the Company believes will enhance the gaming
experience of the PC games being developed by GameFx as well as selected games
for other platforms. The Company expects to release the first PC game developed
by GameFx, Excession, in the spring of 1999.
In June 1998, the Company announced that, in partnership with JAKKS Pacific
Inc. ("JAKKS Pacific")(a manufacturer and marketer of toys), it had signed an
exclusive ten-year license agreement with Titan Sports Inc. to publish World
Wrestling Federation electronic games on all platforms. The games will be
designed, developed, manufactured and marketed by a joint venture of the Company
and JAKKS Pacific. The Company will oversee product development and sales, and
the Company and JAKKS Pacific will co-manage the marketing of the games. The
Company expects that the first game produced under this license will be released
near the end of 1999.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Offered Shares. All of such proceeds will be received by the Selling
Shareholders. See "Selling Shareholders."
4
<PAGE> 6
SELLING SHAREHOLDERS
The Offered Shares are offered for the account of the Selling Shareholders.
The following table and the notes thereto set forth information, as of the
date of this Prospectus, relating to the beneficial ownership (as defined in
Rule 13d-3 of the Exchange Act) of the Common Stock by each Selling Stockholder:
<TABLE>
<CAPTION>
NUMBER OF SHARES OF
COMMON STOCK
NUMBER OF SHARES BENEFICIALLY OWNED
OF COMMON AFTER
NAME OF BENEFICIAL OWNER NUMBER(1) STOCK TO BE SOLD THE OFFERING(2)
------------------------ --------- ---------------- -------------------
<S> <C> <C> <C>
C. Noah Davis(3)............................... 81,122 81,122 0
3Dfx Interactive, Inc.......................... 32,963 32,963 0
James Whims(4)................................. 28,349(5) 15,849 12,500(5)
TechFund Capital L.P.(6)....................... 24,510 24,510 0
Gordon Campbell(7)............................. 19,824 19,824 0
Brian Jacobson(8).............................. 12,168 12,168 0
TechFarm II, L.P.(9)........................... 7,301 7,301 0
Kurt Bickenbach(8)............................. 6,084 6,084 0
John Burkhardt(8).............................. 6,084 6,084 0
Eric Twietmeyer(8)............................. 6,084 6,084 0
Kantz Revocable Trust.......................... 5,769 5,769 0
Jerema E. Wolosenko............................ 4,056 4,056 0
Kurt Keilhacker(10)............................ 3,326 3,326 0
Sobrato 1979 Revocable Trust................... 2,910 2,910 0
Eddie Kawamura................................. 2,882 2,882 0
Sherman Walter Wright(8)....................... 2,028 2,028 0
Koji Morihiro.................................. 1,663 1,663 0
Exis, Inc...................................... 1,455 1,455 0
Donna Bumgarner................................ 338 338 0
Robert C. Cushman and Donna J. Cushman, as
Co-Trustees of the Cushman Living Trust...... 202 202 0
Tricia Joerger................................. 169 169 0
</TABLE>
- ---------------
(1) In each case constituting less than one percent of the aggregate number of
shares of Common Stock outstanding as of the date hereof (except for Mr.
Davis, whose holdings represent 1.1%).
(2) Assumes that all of the Offered Shares are sold by the Selling Shareholders.
(3) On May 1, 1998, Mr. Davis and the Company entered into a four-year
employment agreement pursuant to which Mr. Davis serves as the Chief
Technology Officer of the Company and the President and General Manager of
GameFx. Mr. Davis has agreed not to sell more than 25% of these Offered
Shares prior to May 1, 1999, more than 50% of these Offered Shares prior to
May 1, 2000, or more than 75% of these Offered Shares prior to May 1, 2001
(in each case other than to an inter vivos trust established for the benefit
of Mr. Davis and/or his family).
(4) Mr. Whims has been a director of the Company since April 1997. Mr. Whims
may also be deemed a beneficial owner of the Offered Shares owned by Tech
Fund Capital L.P. and Tech Farm II, L.P. See notes (6) and (9).
(5) Includes 12,500 shares of Common Stock issuable upon exercise of options
currently exercisable.
(6) TechFund Capital L.P. ("TechFund") is a partnership consisting of (i)
TechFund Capital Management LLC, its general partner ("TechFund Capital
Management"), the members of which are Gordon A. Campbell, Kurt A.
Keilhacker and James L. Whims (the "Members"), and (ii) Bell Family Trust,
David F. Bellet, BT Investment Partners, Inc., Chase Equity Associates,
Computrol Limited (BVI),
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<PAGE> 7
Sherman Cunningham, Florentine Partners, Fujitsu Devices Inc., Edward L.
Gelbach 1987 Trust, Innotech Corporation, ITC Ventures V, Inc., Eiji
Kawamura, Latta Family Trust, MC Silicon Valley, Inc., Mitsui Comtek Corp.,
NTT Leasing (U.S.A.), Inc., Silicon Valley Bancshares, John Michael Sobrato
1985 Separate Property Trust, Lisa Ann Sobrato 1987 Trust, Sheri Jean
Sobrato 1987 Trust, Telekom Malaysia Berhad, Erika Williams and WS
Investment Company 98A, its limited partners (the "TechFund Limited
Partners"). TechFund Capital Management, each of the Members and each of
the TechFund Limited Partners may be deemed a beneficial owner of the
Offered Shares owned by TechFund. This Registration Statement also covers
the sale of Offered Shares by (I) TechFund Capital Management and each of
the Limited Partners, in the event that TechFund makes a distribution of
Offered Shares to any of those persons, and (II) each of the Members, in
the event that TechFund Capital Management makes a distribution of Offered
Shares to any of the Members.
(7) Mr. Campbell may also be deemed a beneficial owner of the Offered Shares
owned by TechFund and TechFarm. See notes (6) and (9).
(8) Each such individual became an employee of GameFx on May 1, 1998.
(9) TechFarm II, L.P. ("TechFarm") is a partnership consisting of Gordon
Campbell, its general partner, and Gordon A. Campbell, Kurt A. Keilhacker
and James L. Whims, its limited partners (the "TechFarm Partners"), each of
whom may be deemed a beneficial owner of the Offered Shares owned by
TechFarm. This Registration Statement also covers the sale of Offered
Shares by each of the TechFarm Partners in the event that TechFarm makes a
distribution of Offered Shares to any of the TechFarm Partners.
(10) Mr. Keilhacker may also be deemed a beneficial owner of the Offered Shares
owned by TechFund and TechFarm. See notes (6) and (9).
PLAN OF DISTRIBUTION
The Offered Shares may be sold from time to time by the Selling
Stockholders. Such sales may be made in one or more of the following
transactions: (i) to underwriters who will acquire the Offered Shares for their
own account and resell such shares in one or more transactions, including
negotiated transactions, at a fixed price or at varying prices determined at the
time of sale, with any initial public offering price and any discount or
concession allowed or re-allowed or paid to dealers subject to change from time
to time; (ii) through brokers or dealers, acting as principal or agent, in
transactions (which may involve block transactions) on the NASDAQ NMS or on
stock exchanges in ordinary brokerage transactions, in negotiated transactions
or otherwise, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices, at negotiated prices or otherwise (including
without limitation sales in transactions that comply with the volume and manner
of sale provisions contained in paragraphs (e) and (f) of Rule 144 under the
Securities Act ("Rule 144")); or (iii) directly or indirectly through brokers or
agents in private sales at negotiated prices, or in any combination of such
methods of sale. This Prospectus may be supplemented or amended from time to
time to describe a specific plan of distribution.
In connection with the distribution of the Offered Shares or otherwise, a
Selling Stockholder may: enter into hedging transactions with broker-dealers or
other financial institutions, and in connection with such transactions,
broker-dealers or other financial institutions may engage in short sales of
Common Stock in the course of hedging the positions they assume with such
Selling Stockholder; sell Common Stock short and redeliver the Offered Shares to
close out such short positions; and/or enter into option or other transactions
with broker-dealers or other financial institutions that require the delivery to
such broker-dealer or other financial institution of the Offered Shares, which
Offered Shares such broker-dealer or other financial institution may (subject to
any applicable transfer restriction contained in an agreement between such
Selling Stockholder and the Company) resell pursuant to this Prospectus as
supplemented or amended to reflect such transaction. In addition to the
foregoing, a Selling Stockholder may, from time to time, enter into other types
of hedging transactions.
A Selling Shareholder may from time to time, after the effective date of
the Registration Statement, transfer Offered Shares to a donee, successor or
other person other than for value, and such transfers will not
6
<PAGE> 8
be made pursuant to this Prospectus. To the extent permitted by applicable law,
this Prospectus shall cover sales by such transferee. The Company may in its
discretion supplement or amend this Prospectus to include such transferee as an
additional named selling shareholder.
Underwriters participating in any offering may receive underwriting
discounts and commissions, discounts or concessions may be allowed or re-allowed
or paid to dealers, and brokers or agents participating in such transactions may
receive brokerage or agent's commissions or fees, all in amounts to be
negotiated in connection with sales pursuant hereto. The underwriter, agent or
dealer utilized in the sale of will not confirm sales to accounts of which such
persons exercise discretionary authority. In effecting sales of the Offered
Shares, brokers or dealers engaged by a Selling Stockholder may arrange for
other brokers or dealers to participate. Brokers or dealers may receive
compensation in the form of commissions or discounts from a Selling Stockholder
and may receive commission from the purchases of the Offered Shares for whom
such broker-dealers may act as agents, all in amounts to be negotiated,
including immediately prior to the sale.
The Selling Stockholders and all underwriters, dealers or agents, if any,
who participate in the distribution of the Offered Shares may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with such
sales, and any profit on the sale of such Offered Shares by such stockholders,
and all discounts, commissions or concessions received by such underwriters,
dealers or agents, if any (whether received from a Selling Stockholder and/or
from the purchasers of the Offered Shares for whom those dealers or agents may
act as agents), may be deemed to be underwriting discounts and commissions under
the Securities Act.
Certain of the above-described underwriters, dealers, brokers or agents may
engage in transactions with, or perform services for, the Company and its
affiliates in the ordinary course of business.
Upon the Company being notified by a Selling Stockholders that any
agreement or arrangement has been entered into with a broker-dealer for the sale
of Offered Shares through a block trade, special offering or secondary
distribution or a purchase by a broker-dealer, to the extent required by
applicable law a supplement to this Prospectus will be distributed that will set
forth the name(s) of the participating underwriters, dealers or agents, the
aggregate amount of the Offered Shares being so offered and the terms of the
offering, including all underwriting discounts, commissions and other items
constituting compensation from, and the resulting net proceeds to, such Selling
Stockholder, all discounts, commissions or concessions allowed or re-allowed or
paid to dealers, if any, and, if applicable, the purchase price to be paid by
any underwriter for the Offered Shares purchased from such Selling Stockholder.
The Selling Stockholders and other persons participating in the
distribution of the Offered Shares will be subject to applicable provisions of
the Exchange Act and the rules and regulations of the Commission thereunder,
including, without limitation, Regulation M, which provisions may limit the
timing of the purchase and sale of Offered Shares by a Selling Stockholder.
Offered Shares that qualify for sale pursuant to Rule 144 may be sold under
Rule 144 rather than pursuant to this Prospectus. In addition, a Selling
Stockholder may devise, gift or otherwise transfer the Offered Shares by means
not described herein, in which event such transfer will not be pursuant to this
Prospectus.
Under an agreement that has been entered into by the Company for the
benefit of the Selling Stockholders, the Selling Stockholders are entitled to
indemnification by the Company against certain losses, damages and liabilities,
including liabilities under the Securities Act, and to contribution with respect
to payments that the Selling Stockholders may be required to make in respect
thereof.
The Company has agreed to bear the expenses of registration of the Offered
Shares and other costs and expenses incurred by the Selling Stockholders in
connection with the sale of the Offered Shares, but excluding all discounts,
commissions or fees of selling brokers or similar securities industry
professionals and any fees and expenses of counsel and accountants for the
Selling Stockholders.
No director, officer or agent of the Company is expected to be involved in
soliciting offers to purchase the Offered Shares, and no such person will be
compensated by the Company for the sale of any Offered Shares.
7
<PAGE> 9
LEGAL MATTERS
Certain legal matters with respect to the validity of the shares of Common
Stock offered hereby will be passed upon for the Company by Sidley & Austin, Los
Angeles, California. Attorneys at Sidley & Austin participating in matters for
the Company own approximately 13,340 shares of the Common Stock.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Company's Annual Report on Form 10-K for the year ended December 31, 1997
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report thereon, which is incorporated herein by reference, and have been
so incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
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<PAGE> 10
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth an itemized statement of all fees and
expenses in connection with the distribution of the securities being registered
pursuant to this Registration Statement, all of which fees and expenses will be
paid by the Registrant:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 1,991
Accountants' fees and expenses.............................. $10,000
Legal fees and expenses..................................... $25,000
Miscellaneous............................................... $10,000
-------
Total............................................. $46,991
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits indemnification
of officers, directors, and other corporate agents under certain circumstances
and subject to certain limitations. The Certificate of Incorporation of the
Company contains a provision eliminating the personal liability of the directors
to the Company or its stockholders to the fullest extent set forth in Section
102(b)(7) of the Delaware General Corporation Law and provides for
indemnification of directors, officers, employees and agents of the Company
consistent with the provisions of Section 145 of the Delaware General
Corporation Law. The Certificate of Incorporation also provides that the Company
may purchase directors and officers insurance.
Brian J. Farrell, the President and Chief Executive Officer and a director
of the Company, has entered into an employment agreement with the Company
pursuant to which the Company has agreed to indemnify Mr. Farrell for losses,
liabilities, damages and expenses incurred as a result of his acting on behalf
of the Company, subject to certain conditions and limitations.
ITEM 16. EXHIBITS
The following exhibits are filed herewith:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
5 Opinion of Sidley & Austin.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Sidley & Austin (included in Exhibit 5).
24 Power of Attorney (set forth on the signature page hereto).
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes that insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in Item 15 above, 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 Act and will be governed by the final adjudication of
such issue.
II-1
<PAGE> 11
(b) The undersigned Registrant hereby further 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) (Section 230-424(b) of 17
C.F.R.) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(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 such information in the Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the 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 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.
The undersigned Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual reports pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The Registrant further undertakes that:
(i) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of Prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(ii) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-2
<PAGE> 12
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the city of Calabasas, State of California on this 30th day of
July, 1998.
THQ INC.
By: /s/ BRIAN J. FARRELL
------------------------------------
Brian J. Farrell
President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brian J. Farrell and Fred A. Gysi, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the foregoing, 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, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ BRIAN J. FARRELL Director, Chief Executive July 30, 1998
- -------------------------------------------------------- Officer and President
Brian J. Farrell (Principal Executive Officer)
/s/ FRED A. GYSI Vice President-Finance and July 30, 1998
- -------------------------------------------------------- Administration and Secretary
Fred A. Gysi (Principal Financial Officer
and Principal Accounting
Officer)
Director
- --------------------------------------------------------
Lawrence Burstein
/s/ BRUCE JAGID Director July 30, 1998
- --------------------------------------------------------
Bruce Jagid
/s/ JEFFREY C. LAPIN Director July 30, 1998
- --------------------------------------------------------
Jeffrey C. Lapin
/s/ L. MICHAEL HALLER Director July 30, 1998
- --------------------------------------------------------
L. Michael Haller
/s/ JAMES L. WHIMS Director July 30, 1998
- --------------------------------------------------------
James L. Whims
</TABLE>
II-3
<PAGE> 13
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NUMBER EXHIBIT DESCRIPTION NUMBER
- ------- ------------------- ----------
<C> <S> <C>
5 Opinion of Sidley & Austin..................................
23.1 Consent of Deloitte & Touche LLP............................
23.2 Consent of Sidley & Austin (included in Exhibit 5).......... *
24 Power of Attorney (set forth on signature page hereto)...... *
</TABLE>
- ---------------
* Not Applicable
<PAGE> 1
July 23, 1998
EXHIBIT 5
THQ Inc.
5016 N. Parkway Calabasas, Suite 100
Calabasas, CA 91302
Re: Registration Statement on form S-3
Dear Gentlemen and Ladies:
We have acted as counsel for THQ Inc., a Delaware corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended, pursuant to the above captioned registration statement (the
"Registration Statement"), of the resale by the securityholders named therein of
236,787 shares (the "Shares") of common stock, par value $.01 per share, of the
Company issued pursuant to the Agreement of Merger dated April 17, 1998, among
the Company, GameFx Acquisition Company, and GameFx, Inc. (the "Merger
Agreement").
In our capacity as counsel for the Company and for purpose of this opinion
letter, we have examined the originals, or copies identified to our satisfaction
as being true copies of the originals, of the following documents:
1. The Merger Agreement;
2. The Registration Statement;
3. The Certificate of Incorporation, the Amendment to the Certificate
of Incorporation and the Bylaws of the Company as presently in effect, each
as certified to us by a public official or an officer of the Company; and
4. Certain resolutions adopted by the Board of Directors of the
Company relating to the issuance and sale of the Shares and related
matters.
We have also examined originals, or copies certified or otherwise
identified to our satisfaction of such records of the Company and such other
agreements, instruments and documents as we have considered necessary or
appropriate to enable us to render the opinions expressed below.
In the course of our examinations and investigations, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified, conformed or photostatic copies and the authenticity of the
originals of such latter documents. In making our examination of documents
executed or to be executed by parties other than the Company, we have assumed
that such parties had or will have the power, corporate, partnership or other,
to enter into and perform all obligations thereunder and we have also assumed
the due authorization by all requisite action, corporate, partnership or other,
the due execution and delivery by such parties of such documents and the
validity, binding effect and enforceability thereof. As to all facts material to
the opinions expressed herein that we have not independently established or
verified, we have relied upon statements and representations of officers and
other representatives of the Company and others.
Based upon and subject to the foregoing, it is our opinion that the Shares
are legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Registration Statement. In giving such consent, we do not hereby
admit that we come within the category of persons whose consent is required
under
<PAGE> 2
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations thereunder. The opinions expressed herein are given as of the date
hereof, and we assume no obligation to advise you of changes that may hereafter
be brought to our attention.
Very truly yours,
/s/ SIDLEY & AUSTIN
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statement of THQ Inc. on Form S-3 of our report dated February 20, 1998
appearing in the Annual Report on Form 10-K of THQ Inc. for the year ended
December 31, 1997 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Los Angeles, California
July 27, 1998
