<PAGE> 1
As filed with the Securities and Exchange Commission on May 14, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THQ INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-3541686
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
5016 North Parkway Calabasas
Calabasas, California 91302
(Address of Principal Executive Offices with Zip Code)
THQ INC. 1997 STOCK OPTION PLAN
(Full Title of Plan)
BRIAN J. FARRELL
President and Chief Executive Officer
THQ Inc.
5016 North Parkway Calabasas
Calabasas, California 91302
(818) 591-1310
(Name, Address and Telephone Number,
including Area Code, of Agent For Service)
Copies to:
KENNETH H. LEVIN, Esq.
Sidley & Austin
555 West Fifth Street
Los Angeles, California 90013
CALCULATION OF REGISTRATION FEE
<TABLE>
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===================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE(1)
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 1,650,000 shares $24.0625 $39,703,125 $11,037
par value
===================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
and, pursuant to Rules 457(h)(1) and 457(c) under the Securities Act of
1993, as amended, based upon the exercise price of $24.0625, the average
of the high and low prices of the above described shares on the NASDAQ
National Market System on May 10, 1999 as reported by the National
Association of Securities Dealers Automated Quotation System.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Pursuant to General Instruction E to Form S-8, this registration
incorporates by reference the contents of the Registration Statement on Form S-8
(File No. 333-30655) filed by THQ Inc. (the "Company" or the "Registrant") with
the Securities and Exchange Commission (the "Commission") on July 2, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit
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<S> <C>
4.1 Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 to Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3 filed on January 9, 1998
(File No. 333-32221) (the "S-3 Registration Statement")).
4.2 Amendment to Certificate of Incorporation (incorporated by
reference to Exhibit 3.2 to Post-Effective Amendment No. 1
to the S-3 Registration Statement).
4.3 Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.3 to the Company's Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 1998).
4.4* THQ Inc. Amended and Restated 1997 Stock Option Plan
4.5 Form of Stock Option Agreement for THQ Inc. 1997 Amended and
Restated Stock Option Plan (incorporated by reference to
Exhibit 4.5 to the S-8 Registration Statement).
5* Opinion of Sidley & Austin.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Sidley & Austin (Included in Exhibit 5).
24.1* Powers of Attorney (Set forth on the signature page hereto).
</TABLE>
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* Filed herewith
II-1
<PAGE> 3
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 Calabasas and State of California on the 30th
day of April, 1999.
THQ Inc.
By: /s/ Brian J. Farrell
-------------------------------------------
Brian J. Farrell, President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature to the Registration Statement appears below
hereby appoints Brian J. Farrell and Fred A. Gysi, and each of them, his
attorneys-in-fact, with full power of substitution and resubstitution, to
execute in the name and on behalf of such person, individually and in the
capacity stated below, and to file, all amendments to this Registration
Statement, which amendments may make such changes in and additions to this
Registration Statement as such attorneys-in-fact may deem necessary or
appropriate.
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Brian J. Farrell Director, President and Chief April 30, 1999
- ----------------------------- Executive Officer (Principal
Brian J. Farrell Executive Officer)
/s/ Lawrence Burstein Director April 30, 1999
- -----------------------------
Lawrence Burstein
/s/ Bruce Jagid Director April 30, 1999
- -----------------------------
Bruce Jagid
/s/ Jeffrey C. Lapin Director April 30, 1999
- -----------------------------
Jeffrey C. Lapin
/s/ L. Michael Haller Director April 30, 1999
- -----------------------------
L. Michael Haller
/s/ James L. Whims Director April 30, 1999
- -----------------------------
James L. Whims
/s/ Fred A. Gysi Vice President-Finance and April 30, 1999
- ----------------------------- Administration, Chief Financial
Fred A. Gysi Officer and Secretary
(Principal Financial Officer and
Principal Accounting Officer)
</TABLE>
II-2
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INDEX OF EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit
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<S> <C>
4.1 Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 to Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3 filed on January 9, 1998
(File No. 333-32221) (the "S-3 Registration Statement")).
4.2 Amendment to Certificate of Incorporation (incorporated by
reference to Exhibit 3.2 to Post-Effective Amendment No. 1
to the S-3 Registration Statement).
4.3 Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.3 to the Company's Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 1998).
4.4* THQ Inc. Amended and Restated 1997 Stock Option Plan
4.5 Form of Stock Option Agreement for THQ Inc. 1997 Amended and
Restated Stock Option Plan (incorporated by reference to
Exhibit 4.5 to the S-8 Registration Statement).
5* Opinion of Sidley & Austin.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Sidley & Austin (Included in Exhibit 5).
24.1* Powers of Attorney (Set forth on the signature page hereto).
</TABLE>
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* Filed herewith
<PAGE> 1
EXHIBIT 4.4
THQ INC.
AMENDED AND RESTATED
1997 STOCK OPTION PLAN
(AMENDED AS OF APRIL 29, 1999)
I. INTRODUCTION
1.1 PURPOSES. The purposes of the 1997 Stock Option Plan
(this "Plan") of THQ Inc. (the "Company"), and its subsidiaries (individually a
"Subsidiary" and collectively the "Subsidiaries") are (i) to align the interests
of the Company's stockholders and the recipients of options under this Plan by
increasing the proprietary interest of such recipients in the Company's growth
and success, (ii) to advance the interests of the Company by attracting and
retaining officers, other employees, consultants, advisors and well-qualified
persons who are not officers or employees of the Company for service as
directors of the Company, and (iii) to motivate such persons to act in the
long-term best interests of the Company's stockholders. For purposes of this
Plan, references to employment by the Company shall also mean employment by a
Subsidiary.
1.2 ADMINISTRATION. This Plan shall be administered either
by the Board of Directors of the Company (the "Board") or by a committee (the
"Committee") designated by the Board consisting of two or more members of the
Board each of whom shall be a "Non-Employee Director" within the meaning of Rule
16b-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and (if the Board wishes to qualify under Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code") an "outside director" within the
meaning of Section 162(m) of the Code. As used herein, the term "Committee"
shall mean the Board if no such committee is designated, and shall mean such
committee during such times as it is so designated.
The Committee shall, subject to the terms of this Plan, select
eligible persons for participation in this Plan and shall determine the number
of shares of Common Stock subject to each option granted hereunder, the exercise
price of such option, the time and conditions of exercise of such option and all
other terms and conditions of such option, including, without limitation, the
form of the written option agreement between the Company and the optionee that
evidences each option and sets forth the terms and conditions of such option
(the "Agreement"). The Committee shall, subject to the terms of this Plan,
interpret this Plan and the application thereof, establish such rules and
regulations it deems necessary or desirable for the administration of this Plan
and may impose, incidental to the grant of an option, conditions with respect to
the grant, such as limiting competitive employment or other activities. All such
interpretations, rules, regulations and conditions shall be final, binding and
conclusive. The Committee may, in its sole discretion and for any reason at any
time, subject to the requirements imposed under Section 162(m) of the Code and
regulations promulgated thereunder in the case of an option intended to be
qualified performance-based compensation, take action such that any or all
outstanding options shall become exercisable in part or in full.
The Committee may delegate some or all of its power and
authority hereunder to the Chief Executive Officer or other executive officer of
the Company as the Committee deems appropriate; provided, however, that the
Committee may not delegate its power and authority with regard to the selection
for participation in this Plan of an officer or other person subject to Section
16 of the Exchange Act or decisions concerning the timing, pricing or amount of
an option grant to such an officer or other person.
No member of the Board of Directors or the Committee, and
neither the Chief Executive Officer nor other executive officer to whom the
Committee delegates any of its power and authority hereunder,
<PAGE> 2
shall be liable for any act, omission, interpretation, construction or
determination made in connection with this Plan in good faith, and the members
of the Board of Directors and the Committee and the Chief Executive Officer or
other executive officer shall be entitled to indemnification and reimbursement
by the Company in respect of any claim, loss, damage or expense (including
attorneys' fees) arising therefrom to the full extent permitted by law and under
any directors' and officers' liability insurance that may be in effect from time
to time.
A majority of the Committee shall constitute a quorum. The acts
of the Committee shall be either (i) acts of a majority of the members of the
Committee present at any meeting at which a quorum is present or (ii) acts
approved in writing by all of the members of the Committee without a meeting.
1.3 ELIGIBILITY. Participants in this Plan shall consist of
such officers, other employees, consultants and advisors of the Company and its
Subsidiaries from time to time as the Committee in its sole discretion may
select from time to time. The Committee's selection of a person to participate
in this Plan at any time shall not require the Committee to select such person
to participate in this Plan at any other time. Non-employee directors of the
Company shall be eligible to participate in this Plan in accordance with Section
III.
1.4 SHARES AVAILABLE. Subject to adjustment as provided in
Section 4.7, 2,750,000 shares of the common stock, $0.01, of the Company
("Common Stock"), shall be available for grants of options under this Plan,
reduced by the sum of the aggregate number of shares of Common Stock which
become subject to outstanding options. To the extent that shares of Common Stock
subject to an outstanding option are not issued or delivered by reason of the
expiration, termination, cancellation or forfeiture of such option, then such
shares of Common Stock shall again be available under this Plan.
Shares of Common Stock shall be made available from authorized
and unissued shares of Common Stock, or authorized and issued shares of Common
Stock reacquired and held as treasury shares or otherwise or a combination
thereof.
II. STOCK OPTIONS
2.1 GRANTS OF STOCK OPTIONS. The Committee may, in its
discretion, grant options to purchase shares of Common Stock to such eligible
persons as may be selected by the Committee. Each option, or portion thereof,
that is not an incentive stock option, shall be a non-qualified stock option. An
incentive stock option shall mean an option to purchase shares of Common Stock
that meets the requirements of Section 422 of the Code, or any successor
provision, which is intended by the Committee to constitute an incentive stock
option. Each incentive stock option shall be granted within ten years of the
effective date of this Plan. To the extent that the aggregate Fair Market Value
(determined as of the date of grant) of shares of Common Stock with respect to
which options designated as incentive stock options are exercisable for the
first time by a participant during any calendar year (under this Plan or any
other plan of the Company, or any Subsidiary as defined in Section 424 of the
Code) exceeds the amount (currently $100,000) established by the Code, such
options shall constitute non-qualified stock options. "Fair Market Value" shall
mean the closing transaction price of a share of Common Stock as reported in the
NASDAQ National Market System, or other exchange where the Common Stock is
listed, on the date as of which such value is being determined or, if there
shall be no reported transactions on such date, on the next preceding date for
which transactions were reported; provided that if Fair Market Value for any
date cannot be determined as above provided, Fair Market Value
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<PAGE> 3
shall be determined by the Committee by whatever means or method as the
Committee, in the good faith exercise of its discretion, shall at such time deem
appropriate.
2.2 TERMS OF STOCK OPTIONS. Options shall be subject to the
following terms and conditions and shall contain such additional terms and
conditions, not inconsistent with the terms of this Plan, as the Committee shall
deem advisable:
(a) Number of Shares and Purchase Price. The number of
shares of Common Stock subject to an option and the purchase price per share of
Common Stock purchasable upon exercise of the option shall be determined by the
Committee; provided, however, that such purchase price shall not be less than
100% of the Fair Market Value of a share of Common Stock on the date of grant of
such option; provided further, that if an incentive stock option shall be
granted to any person who, at the time such option is granted, owns capital
stock possessing more than ten percent of the total combined voting power of all
classes of capital stock of the Company (or of any Subsidiary) (a "Ten Percent
Holder"), the purchase price per share of Common Stock shall be the price
(currently 110% of Fair Market Value) required by the Code in order to
constitute an incentive stock option.
(b) Option Period and Exercisability. The period during
which an option may be exercised shall be determined by the Committee; provided,
however, that no stock option shall be exercisable later than five years after
its date of grant. The Committee may, in its discretion, establish performance
measures or other criteria which shall be satisfied or met as a condition to the
grant of an option or to the exercisability of all or a portion of an option.
The Committee shall determine whether an option shall become exercisable in
cumulative or non-cumulative installments and in part or in full at any time. An
exercisable option, or portion thereof, may be exercised only with respect to
whole shares of Common Stock. Notwithstanding Section 2.3 hereof or the
provisions of any Agreement, the Committee may in its sole and absolute
discretion extend the time for the exercise of any option.
(c) Method of Exercise. An option may be exercised (i) by
giving written notice to the Company specifying the number of whole shares of
Common Stock to be purchased and accompanied by payment therefor in full (or
arrangement made for such payment to the Company's satisfaction) either (A) in
cash, (B) by delivery of previously owned whole shares of Common Stock (which
the optionee has held for at least six months prior to the delivery of such
shares or which the optionee purchased on the open market and in each case for
which the optionee has good title, free and clear of all liens and encumbrances)
having an aggregate Fair Market Value, determined as of the date of exercise,
equal to the aggregate purchase price payable by reason of such exercise, (C) in
cash by a broker-dealer acceptable to the Company to whom the optionee has
submitted an irrevocable notice of exercise, or (D) a combination of (A), (B)
and (C), in each case to the extent not prohibited by the Agreement relating to
the option and (ii) by executing such documents as the Company may reasonably
request; provided, however, that notwithstanding the foregoing or anything in
the Agreement relating to such option to the contrary, the Company shall have
sole discretion to disapprove of an election pursuant to clauses (B)-(D). Any
fraction of a share of Common Stock which would be required to pay such purchase
price shall be disregarded and the remaining amount due shall be paid in cash by
the optionee. No certificate representing Common Stock shall be delivered until
the full purchase price therefor has been paid (or arrangement made for such
payment to the Company's satisfaction).
2.3 TERMINATION OF EMPLOYMENT.
(a) Total Disability. Unless otherwise specified in the
Agreement relating to an option, if an optionee's employment with the Company
terminates by reason of Total Disability, each option held by
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<PAGE> 4
such optionee shall be exercisable only to the extent that such option is
exercisable on the effective date of such optionee's termination of employment
and may thereafter be exercised by such optionee (or such optionee's legal
representative or similar person) until and including the earliest to occur of
(i) the date which is one year (or such other period as set forth in the
Agreement relating to such option) after the effective date of such optionee's
termination of employment, and (ii) the expiration date of the term of such
option. For purposes of this Plan, "Total Disability" shall, with respect to any
optionee who at such time is employed by the Company, mean the permanent and
total disability of such optionee as described in such optionee's written
employment agreement; and otherwise shall mean the inability of such optionee
substantially to perform such optionee's duties and responsibilities for a
continuous period of six months.
(b) Death. Unless otherwise specified in the Agreement
relating to an option, if an optionee's employment with the Company terminates
by reason of death, each option held by such optionee shall be exercisable only
to the extent that such option is exercisable on the date of such optionee's
death and may thereafter be exercised by such optionee's executor,
administrator, legal representative, beneficiary or similar person until and
including the earliest to occur of (i) the date which is one year (or such other
period as set forth in the Agreement relating to such option) after the date of
death and (ii) the expiration date of the term of such option.
(c) Termination for Cause. Unless otherwise specified in the
Agreement relating to an option, if the employment of the holder of such option
is terminated by the Company for Cause, such option shall terminate
automatically on the date of such termination. For purposes of this Plan,
"Cause" shall, with respect to any optionee who at such time has a written
employment agreement with the Company, have the meaning ascribed thereto in such
agreement and (i) shall also include an optionee's termination of his employment
for any reason, but (ii) shall not include termination by reason of an
optionee's Total Disability notwithstanding any language to the contrary in such
employment agreement; and otherwise shall mean the willful and continued failure
to substantially perform the duties with the Company (other than a failure
resulting from the optionee's Total Disability), the willful engaging in conduct
which is demonstrably injurious to the Company or any Subsidiary, monetarily or
otherwise, including conduct that, in the reasonable judgment of the Company,
does not conform to the standard of the Company's executives, any act of
dishonesty, commission of a felony or a significant violation of any statutory
or common law duty of loyalty to the Company, or such optionee's termination of
his employment for any reason.
(d) Other Termination. Unless otherwise specified in the
Agreement relating to an option, if an optionee's employment with the Company is
terminated by the Company for any reason other than Total Disability, death or
for Cause, each option held by such optionee shall be exercisable only to the
extent that such option is exercisable on the effective date of such optionee's
termination of employment and may thereafter be exercised by such optionee (or
such optionee's legal representative or similar person) until and including the
earliest to occur of (i) the date which is three months (or such other period as
set forth in the Agreement relating to such option) after the effective date of
such optionee's termination of employment, and (ii) the expiration date of the
term of such option; provided, however, that if the optionee's employment with
the Company is terminated by the Company within the nine-month period following
the consummation of a Transaction (as defined in Section 4.8(a)) for any reason
other than Total Disability, death or for Cause, each option held by such
optionee shall become fully exercisable, and may thereafter be exercised by such
holder (or such holder's legal representative or similar person) until and
including the earliest to occur of (i) the date which is three months after the
effective date of such optionee's termination of employment and (ii) the
expiration date of the term of such option; provided further, that if the
optionee's employment with the Company is terminated by the Company at any other
time for any reason other than Total Disability, death or for Cause, the
Committee may, in its sole and absolute discretion, provide that each option
held by such
4
<PAGE> 5
optionee shall become fully exercisable and may thereafter be exercised by such
holder (or such holder's legal representative or similar person) until and
including the earliest to occur of (i) the date which is three months after the
effective date of such optionee's termination of employment and (ii) the
expiration date of the term of such option.
(e) Death Following Termination of Employment. Unless
otherwise specified in the Agreement relating to an option, if an optionee dies
during the period set forth in Section 2.3(a) following termination of
employment by reason of Total Disability, or if an optionee dies during the
period set forth in Section 2.3(d) following termination of employment by the
Company for any other reason other than Total Disability, death or for Cause,
each option held by such optionee shall be exercisable only to the extent that
such option is exercisable on the date of such optionee's death and may
thereafter be exercised by such optionee's executor, administrator, legal
representative, beneficiary or similar person, as the case may be, until and
including the earliest to occur of (i) the date which is one year (or such other
period as set forth in the Agreement relating to such option) after the date of
death and (ii) the expiration date of the term of such option.
III. PROVISIONS RELATING TO NON-EMPLOYEE DIRECTORS
3.1 ELIGIBILITY. Each member of the Board of Directors of
the Company who is not an employee, either full-time or part-time, of the
Company or any Subsidiary (a "non-employee director") shall be granted options
to purchase shares of Common Stock in accordance with this Section III. All
options granted under this Section III shall constitute non-qualified stock
options.
3.2 GRANTS OF STOCK OPTIONS. Each non-employee director
shall be granted non-qualified stock options as follows:
(a) Time of Grant. Commencing on July 1, 1997 (or, if later,
on the date on which a person is first elected or begins to serve as a
non-employee director other than by reason of termination of employment with the
Company or any Subsidiary), and, on each January, April, July and October
thereafter, each person who is a non-employee director on such date shall be
granted an option to purchase 2,500 shares of Common Stock (which amount shall
be pro-rated if such person is first elected or begins to serve as a
non-employee director on a date other than the dates set forth above) at a
purchase price per share equal to the Fair Market Value of the Common Stock on
the date of grant of such option.
(b) Option Period and Exercisability. Each option granted
under this Article III shall be fully exercisable on and after its date of
grant. Each option granted under this Article III shall expire five years after
its date of grant. An exercisable option, or portion thereof, may be exercised
in whole or in part only with respect to whole shares of Common Stock. Options
granted under this Article III shall be exercisable in accordance with Section
3.2(c).
(c) Termination of Directorship.
(I) Total Disability. Unless otherwise specified in the
Agreement relating to an option, if an optionee's directorship with the Company
terminates by reason of Total Disability, each option held by such optionee
shall be exercisable only to the extent that such option is exercisable on the
effective date of such optionee's termination of directorship and may thereafter
be exercised by such optionee (or such optionee's legal representative or
similar person) until and including the earliest to occur of (i) the date which
is one year
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(or such other period as set forth in the Agreement relating to such option)
after the effective date of such optionee's termination of directorship and (ii)
the expiration date of the term of such option. For purposes of this Plan,
"Total Disability" of a non-employee director shall mean the inability of such
optionee substantially to perform such optionee's duties and responsibilities as
a director for a continuous period of six months.
(ii) Death. Unless otherwise specified in the Agreement
relating to an option, if an optionee's directorship with the Company terminates
by reason of death, each option held by such optionee shall be exercisable only
to the extent that such option is exercisable on the date of such optionee's
death and may thereafter be exercised by such optionee's executor,
administrator, legal representative, beneficiary or similar person until and
including the earliest to occur of (i) the date which is one year (or such other
period as set forth in the Agreement relating to such option) after the date of
death and (ii) the expiration date of the term of such option.
(iii) Termination for Cause. Unless otherwise specified in the
Agreement relating to an option, if the holder of such option is removed from
the Board of Directors for Cause, such option shall terminate automatically on
the date of such termination.
(iv) Other Termination. Unless otherwise specified in the
Agreement relating to an option, if an optionee's directorship with the Company
is terminated by the Company for any reason other than Total Disability, death
or for Cause, each option held by such optionee shall be exercisable only to the
extent that such option is exercisable on the effective date of such optionee's
termination of directorship and may thereafter be exercised by such optionee (or
such optionee's legal representative or similar person) until and including the
earliest to occur of (i) the date which is three months (or such other period as
set forth in the Agreement relating to such option) after the effective date of
such optionee's termination of directorship and (ii) the expiration date of the
term of such option.
(v) Death Following Termination. Unless otherwise specified
in the Agreement relating to an option, if an optionee dies during the period
set forth in Section 3.2(c)(i) following termination of directorship by reason
of Total Disability, or if an optionee dies during the period set forth in
Section 3.2(c)(iv) following termination of directorship by the Company for any
other reason other than Total Disability, for Cause or death, each option held
by such optionee shall be exercisable only to the extent that such option is
exercisable on the date of such optionee's death and may thereafter be exercised
by such optionee's executor, administrator, legal representative, beneficiary or
similar person, as the case may be, until and including the earliest to occur of
(i) the date which is one year (or such other period as set forth in the
Agreement relating to such option) after the date of death and (ii) the
expiration date of the term of such option.
IV. GENERAL
4.1 EFFECTIVE DATE AND TERM OF PLAN. This Plan shall be
submitted to the stockholders of the Company for approval and, if approved by
the affirmative vote of a majority of the shares of Common Stock present in
person or represented by proxy at the 1997 annual meeting of the stockholders,
shall become effective as of March 28, 1997, the date of approval of this Plan
by the Board of Directors. No option may be exercised prior to the date of such
stockholder approval. This Plan shall terminate ten years after its effective
date, unless terminated earlier by the Board. Termination of this Plan shall not
affect the terms or conditions of any option granted prior to termination.
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4.2 AMENDMENTS.
(a) The Board may amend this Plan as it shall deem
advisable, subject to any requirement of stockholder approval required by
applicable law, rule or regulation; provided, however, that no amendment shall
be made without stockholder approval if such amendment would (a) increase the
maximum number of shares of Common Stock available under this Plan (subject to
Section 4.7), or (b) extend the term of this Plan; and, provided, further, that
this Plan shall not be amended in a manner which fails to comply with Rule 16b-
3(c)(2)(ii)(B) under Section 16 of the Exchange Act. No amendment may impair the
rights of a holder of an outstanding option without the consent of such holder
or effect any change inconsistent with Section 422 of the Code; provided
further, that the number of shares of Common Stock subject to an option granted
to non-employee directors pursuant to Article III, the purchase price therefor,
the date of grant of any such option, the termination provisions relating
thereto, and the category of persons eligible to be granted such options shall
not be amended more than once every six months, other than to comply with
changes in the Code and the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or the rules and regulations thereunder.
(b) Without the prior approval of the stockholders of the
Company, and except as provided in Section 4.7 hereof, no option issued under
this Plan shall be repriced, replaced or regranted through cancellation, or by
lowering the option price of a previously granted award.
4.3 AGREEMENT. No option shall be valid until an Agreement
is executed by the Company and the optionee and, upon execution by the Company
and the optionee and delivery of the Agreement to the Company, such option shall
be effective as of the effective date set forth in the Agreement.
4.4 NON-TRANSFERABILITY. No option hereunder shall be
transferable other than (i) by will or the laws of descent and distribution or
pursuant to beneficiary designation procedures approved by the Company or (ii)
as otherwise permitted under Rule 16b-3 under the Exchange Act as set forth in
the Agreement relating to such option. Except to the extent permitted by the
foregoing sentence, each option may be exercised during the optionee's lifetime
only by the optionee or the optionee's legal representative or similar person.
Except as permitted by the second preceding sentence, no option hereunder shall
be sold, transferred, assigned, pledged, hypothecated, encumbered or otherwise
disposed of (whether by operation of law or otherwise) or be subject to
execution, attachment or similar process. Upon any attempt to so sell, transfer,
assign, pledge, hypothecate, encumber or otherwise dispose of any option
hereunder, such option and all rights thereunder shall immediately become null
and void.
4.5 TAX WITHHOLDING. The Company shall have the right to
require, prior to the issuance or delivery of any shares of Common Stock,
payment by the optionee of any Federal, state, local or other taxes which may be
required to be withheld or paid in connection with an option hereunder. Unless
otherwise provided in an Agreement relating to an option, the optionee may elect
that (i) the Company shall withhold whole shares of Common Stock which would
otherwise be delivered upon exercise of the option having an aggregate Fair
Market Value determined as of the date the obligation to withhold or pay taxes
arises in connection with the option (the "Tax Date") in the amount necessary to
satisfy any such obligation or (ii) the optionee satisfy any such obligation by
any of the following means: (A) a cash payment to the Company, (B) delivery to
the Company of previously owned whole shares of Common Stock (which the optionee
has held for at least six months prior to the delivery of such shares or which
the optionee purchased on the open market and in each case for which the
optionee has good title, free and clear of all liens and encumbrances) having an
aggregate Fair Market Value determined as of the Tax Date, equal to the amount
necessary to satisfy any such obligation, (C) a cash payment by a broker-dealer
acceptable to the Company to whom the optionee has
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submitted an irrevocable notice of exercise, or (D) any combination of (A), (B)
and (C), in each case to the extent not prohibited by the Agreement relating to
the option. Any fraction of a share of Common Stock which would be required to
satisfy such an obligation shall be disregarded and the remaining amount due
shall be paid in cash by the optionee; provided, however, that the Committee
shall have sole discretion to disapprove of an election pursuant to any of
clauses (B)-(D) and that in the case of an optionee who is subject to Section 16
of the Exchange Act, the Company may require that the method of satisfying any
such obligation be in compliance with Section 16 and the rules and regulations
thereunder. Any fraction of a share of Common Stock which would be required to
satisfy such an obligation shall be disregarded and the remaining amount due
shall be paid in cash by the optionee.
4.6 RESTRICTIONS ON SHARES. Each option hereunder shall be
subject to the requirement that if at any time the Company determines that the
listing, registration or qualification of the shares of Common Stock subject to
such option upon any securities exchange or under any law, or the consent or
approval of any governmental body, or the taking of any other action is
necessary or desirable as a condition of, or in connection with, the delivery of
shares thereunder, such shares shall not be delivered unless such listing,
registration, qualification, consent, approval or other action shall have been
effected or obtained, free of any conditions not acceptable to the Company. The
Company may require that certificates evidencing shares of Common Stock
delivered pursuant to any option hereunder bear a legend indicating that the
sale, transfer or other disposition thereof by the holder is prohibited except
in compliance with the Securities Act of 1933, as amended, and the rules and
regulations thereunder.
4.7 ADJUSTMENT. In the event of any stock split, stock
dividend, recapitalization, reorganization, merger, consolidation, combination,
exchange of shares, liquidation, spin-off or other similar change in
capitalization or event, or any distribution to holders of Common Stock other
than a regular cash dividend, the number and class of securities available under
this Plan, the number and class of securities subject to each outstanding option
and the purchase price per security shall be appropriately adjusted by the
Committee, such adjustments to be made in the case of outstanding options
without an increase in the aggregate purchase price. The decision of the
Committee regarding any such adjustment shall be final and binding. If any
adjustment would result in a fractional security being (a) available under this
Plan, such fractional security shall be disregarded, or (b) subject to an option
under this Plan, the Company shall pay the optionee, in connection with the
first exercise of the option in whole or in part occurring after such
adjustment, an amount in cash determined by multiplying (A) the fraction of such
security (rounded to the nearest hundredth) by (B) the excess, if any, of (x)
the Fair Market Value on the exercise date over (y) the exercise price of the
option.
4.8 EFFECT OF CERTAIN TRANSACTIONS.
(a) In the event that the Company enters into an agreement
(a) to dispose of all or substantially all of its assets, in contemplation of
the distribution of the net proceeds of such sale to the Company's shareholders,
or (b) to consummate a merger or consolidation in which the Company is not the
surviving or resulting corporation, or in the event the persons who, as of the
date of the adoption of this Plan by the Board of Directors, hold 60% or more of
the outstanding capital stock of the Company enter into an agreement to sell all
of such stock (such distribution, merger, consolidation or sale being
hereinafter referred to as a "Transaction"), then (unless otherwise specified in
the Agreement relating to an option), the Committee shall provide, at its
election made in its sole and absolute discretion, for one or more of the
following: (i) for each outstanding option, whether or not then exercisable, to
be replaced with a comparable option to purchase shares of capital stock of a
successor or purchasing corporation or parent thereof, or (ii) for each
outstanding option, whether or not then exercisable, to be assumed by a
successor or purchasing corporation or parent
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thereof (and, in the event of such assumption, each outstanding option shall
continue to be exercisable, on the terms and subject to the conditions set forth
in, and in cumulative amounts at the times provided in, the Agreement relating
to such option but shall, from and after the consummation of such Transaction,
be exercisable for the capital stock, cash and/or other property received by the
common stockholders of the Company in such Transaction in an amount equal to
what the holder of such option would have received had he exercised such option
immediately prior to the consummation of such Transaction), or (iii) for each
outstanding option, whether or not then exercisable, to become exercisable
during such period prior to the scheduled consummation of such Transaction as
may be specified by the Committee; provided, however, that such elections of the
Committee shall apply identically, by their terms, to all holders of options
granted under this Plan (unless otherwise required by an Agreement). In the
event the Committee elects to cause the options not then otherwise exercisable
to become exercisable prior to such Transaction (an "Accelerated Option"), any
exercise of an Accelerated Option shall be conditioned upon, and shall be
effective only concurrently with, the consummation of such Transaction; and if
such Transaction is not consummated, the exercise of such Accelerated Options
shall be of no further force or effect (and an optionee may elect, with respect
to the exercise during such period of an option that was otherwise exercisable,
to so condition such exercise upon the consummation of the Transaction). All
options not exercised prior to the consummation of such Transaction (and which
are not being assumed by a successor or purchasing corporation or parent
thereof) shall terminate and be of no further force or effect as of the
consummation of such Transaction.
(b) With respect to any optionee who is subject to Section
16 of the Exchange Act, (i) notwithstanding the exercise periods set forth in
Section 2.3 and 3.2(c), or as set forth pursuant to such Section in any
Agreement to which such optionee is a party, and (ii) notwithstanding the
expiration date of the term of such option, in the event the Company is involved
in a business combination that is intended to be treated as a pooling of
interests for financial accounting purposes (a "Pooling Transaction") or
pursuant to which such optionee receives a substitute option to purchase
securities of any entity, including an entity directly or indirectly acquiring
the Company, then each option (or option in substitution thereof) held by such
optionee shall be exercisable to the extent set forth in the Agreement
evidencing such option until and including the latest of (x) the date set forth
pursuant to the then applicable paragraph of Section 2.3, 3.2(c) or the
expiration date of the term of the option, as the case may be, (y) the date
which is six months and one day after the consummation of such business
combination and (z) the date which is ten business days after the date of
expiration of any period during which such optionee may not dispose of a
security issued in the Pooling Transaction in order for the Pooling Transaction
to be accounted for as a pooling of interests.
4.9 NO RIGHT OF PARTICIPATION OR EMPLOYMENT. No person shall
have any right to participate in this Plan. Neither this Plan nor any option
granted hereunder shall confer upon any person any right to continued employment
by the Company, any Subsidiary or any affiliate of the Company or affect in any
manner the right of the Company, any Subsidiary or any affiliate of the Company
to terminate the employment of any person at any time without liability
hereunder.
4.10 RIGHTS AS STOCKHOLDER. No person shall have any rights
as a stockholder of the Company with respect to any shares of Common Stock which
are subject to an option hereunder until such person becomes a stockholder of
record with respect to such shares of Common Stock.
4.11 DESIGNATION OF BENEFICIARY. If permitted by the Company,
an optionee may file with the Committee a written designation of one or more
persons as such optionee's beneficiary or beneficiaries (both primary and
contingent) in the event of the optionee's death. To the extent an outstanding
option granted hereunder is exercisable, such beneficiary or beneficiaries shall
be entitled to exercise such option.
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Each beneficiary designation shall become effective only when
filed in writing with the Committee during the optionee's lifetime on a form
prescribed by the Committee. The spouse of a married optionee domiciled in a
community property jurisdiction shall join in any designation of a beneficiary
other than such spouse. The filing with the Committee of a new beneficiary
designation shall cancel all previously filed beneficiary designations.
If an optionee fails to designate a beneficiary, or if all
designated beneficiaries of an optionee predecease the optionee, then each
outstanding option hereunder held by such optionee, to the extent exercisable,
may be exercised by such optionee's executor, administrator, legal
representative or similar person.
4.12 GOVERNING LAW. This Plan, each option hereunder and the
related Agreement, and all determinations made and actions taken pursuant
thereto, to the extent not otherwise governed by the laws of the United States,
shall be governed by the laws of the State of Delaware and construed in
accordance therewith without giving effect to principles of conflicts of laws.
4.13 FOREIGN EMPLOYEES. Without amending this Plan, the
Committee may grant options to eligible persons who are foreign nationals on
such terms and conditions different from those specified in this Plan as may in
the judgment of the Committee be necessary or desirable to foster and promote
achievement of the purposes of this Plan and, in furtherance of such purposes
the Committee may make such modifications, amendments, procedures, subplans and
the like as may be necessary or advisable to comply with provisions of laws in
other countries or jurisdictions in which the Company or its Subsidiaries
operates or has employees.
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[SIDLEY & AUSTIN LETTERHEAD]
EXHIBIT 5
May 14, 1999
THQ Inc.
5016 North Parkway Calabasas
Calabasas, California 91302
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") being filed by THQ Inc., a Delaware corporation (the "Company"),
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), relating to the registration of 1,650,000 shares
(the "Shares") of common stock, par value $.01 per share (the "Common Stock"),
of the Company which may be issued upon the exercise of options granted pursuant
to the THQ Inc. Amended and Restated 1997 Stock Option Plan (the "Plan").
We have acted as counsel to the Company in connection with the
Registration Statement and have examined such records, documents and questions
of law, and satisfied ourselves as to such matters of fact, as we have
considered relevant and necessary as a basis for this opinion. In addition, we
have examined the originals, or photocopies, of such other corporate records of
the Company, certificates of public officials and of officers of the Company and
such agreements, instruments and other documents as we have deemed necessary as
a basis for the opinions expressed below. As to the questions of fact material
to such opinions, we have, when relevant facts were not independently
established by us, relied upon a certificate of the Company or its officers or
of public officials.
Based on the foregoing, we are of the opinion that the Shares are duly
authorized, legally issued, fully paid and nonassessable.
We do not find it necessary for purposes of this opinion to cover, and
accordingly we express no opinion as to, the application of the securities or
"Blue Sky" laws of the various states to the sale of the Shares. This opinion is
limited to the General Corporation Law of the State of Delaware.
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SIDLEY & AUSTIN LOS ANGELES
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to our firm in the Registration
Statement.
Very truly yours,
/s/ Sidley & Austin
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
THQ Inc. on Form S-8 of our report dated February 24, 1999 appearing in the
Annual Report on Form 10-K of THQ Inc. for the year ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
Los Angeles, California
May 6, 1999
