As filed with the Securities and Exchange Commission on February 19, 2003.
Registration No. 333-101271
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACTIVISION, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-4803544
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3100 Ocean Park Boulevard
Santa Monica, California 90405
(310) 255-2000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
-------------------------
Ronald Doornink
President
Activision, Inc.
3100 Ocean Park Boulevard
Santa Monica, California 90405
(310) 255-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------------
Copies To:
Bryan Cave LLP
1290 Avenue of the Americas
New York, New York 10104
Attention: Kenneth L. Henderson, Esq.
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 Rule 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 the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
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 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED FEBRUARY 19, 2003
110,391 Shares
ACTIVISION, INC.
Common Stock
____________________
The stockholders of Activision, Inc. listed in this prospectus under the
section entitled "Selling Stockholders" are offering and selling up to 110,391
shares of our common stock under this prospectus. The shares of common stock
being offered hereby were issued by us to the shareholders of Luxoflux
Corporation, a California based console software development company, in
connection with our acquisition of Luxoflux Corporation on October 4, 2002.
We will not receive any of the proceeds from the sale of shares being
offered by the selling stockholders.
Together with this registration statement, we are concurrently filing a
registration statement, on Form S-3 (Registration Number 333-101301), for the
sale of up to $500 million of any combination of securities detailed in that
registration statement and a registration statement, on Form S-4 (Registration
Number 333-101304), for the sale of up to $250 million of any combination of
securities detailed in that registration statement.
Our common stock is traded on the Nasdaq National Market under the symbol
"ATVI." On February 13, 2003, the closing sale price of our common stock as
reported by Nasdaq was $13.89 per share.
Our principal executive offices are located at 3100 Ocean Park Boulevard,
Santa Monica, California 90405, and our telephone number is (310) 255-2000.
No underwriting is being used in connection with this offering of common
stock. The shares of common stock are being offered without underwriting
discounts. The expenses of this registration will be paid by us. Normal
brokerage commissions, discounts and fees will be payable by the selling
stockholders.
Investing in our common stock involves risks that are described in the
"Risk Factors" section beginning on page 3 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The information in this prospectus is not complete and may be changed.
These securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
The date of this Prospectus is ____________, 2003.
TABLE OF CONTENTS
Page
FORWARD LOOKING STATEMENTS ...................................................2
RISK FACTORS .................................................................3
ACTIVISION, INC. ............................................................11
USE OF PROCEEDS .............................................................13
SELLING STOCKHOLDERS ........................................................13
DESCRIPTION OF CAPITAL STOCK ................................................14
PLAN OF DISTRIBUTION ........................................................15
LEGAL MATTERS ...............................................................15
EXPERTS .....................................................................15
WHERE YOU CAN FIND MORE INFORMATION..........................................16
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE .............................16
____________________
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized any other person to provide
you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. These securities are not
being offered for sale in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus
is accurate only as of the date on the front cover of this prospectus. Our
business, financial condition, results of operations and prospects may have
changed since that date.
Information contained in our web site does not constitute part of this
document.
____________________
-i-
FORWARD LOOKING STATEMENTS
We make statements in this prospectus and the documents incorporated by
reference that are considered forward looking statements under the federal
securities laws. Such forward looking statements are based on the beliefs of our
management as well as assumptions made by and information currently available to
them. The words "anticipate," "believe," "may," "estimate," "expect," and
similar expressions, and variations of such terms or the negative of such terms,
are intended to identify such forward looking statements.
All forward looking statements are subject to certain risks, uncertainties
and assumptions. If one or more of these risks or uncertainties materialize, or
if underlying assumptions prove incorrect, our actual results, performance or
achievements could differ materially from those expressed in, or implied by, any
such forward looking statements. Important factors that could cause or
contribute to such difference include those discussed under "Risk Factors" in
this prospectus and under "Business-Factors Affecting Future Performance" in our
Annual Report on Form 10 K for the fiscal year ended March 31, 2002. You should
not place undue reliance on such forward looking statements, which speak only as
of their dates. We do not undertake any obligation to update or revise any
forward looking statements, whether as a result of new information, future
events or otherwise. You should carefully consider the information set forth
under the heading "Risk Factors."
-2-
RISK FACTORS
You should carefully consider the risks described below before investing in
our common stock. The occurrence of any of the following risks could harm our
business and our prospects. In that event, our business may be negatively
affected, the price of our stock may decline and you may lose part or all of
your investment.
We depend on a relatively small number of brands for a significant portion of
our revenues and profits.
A significant portion of our revenues are derived from products based on a
relatively small number of popular brands each year. In addition, many of these
products have substantial production or acquisition costs and marketing budgets.
In fiscal 2002, 50% of our worldwide net publishing revenues (35% of
consolidated net revenues) was derived from two brands, one of which accounted
for 44% and the other of which accounted for 6% of worldwide net publishing
revenues (31% and 4%, respectively, of consolidated net revenues). In fiscal
2001, two brands accounted for 49% of our worldwide net publishing revenues (37%
of consolidated net revenues), one of which accounted for 39% and the other of
which accounted for 10% of worldwide net publishing revenues (29% and 8%,
respectively, of consolidated net revenues). We expect that a limited number of
popular brands will continue to produce a disproportionately large amount of our
revenues. Due to this dependence on a limited number of brands, the failure of
one or more products based on these brands to achieve anticipated results may
significantly harm our business and financial results.
Our future success depends on our ability to release popular products.
The life of any one game product is relatively short, in many cases less
than one year. It is therefore important for us to be able to continue to
develop many high quality new products that are popularly received. If we are
unable to do this, our business and financial results may be negatively
affected.
We focus our development and publishing activities principally on products
that are, or have the potential to become, franchise brand properties. Many of
these products are based on intellectual property and other character or story
rights acquired or licensed from third parties. These license and distribution
agreements are limited in scope and time, and we may not be able to renew key
licenses when they expire or to include new products in existing licenses. The
loss of a significant number of our intellectual property licenses or of our
relationships with licensors could have a material adverse effect on our ability
to develop new products and therefore on our business and financial results.
Transitions in console platforms have a material impact on the market for
interactive entertainment software.
When new console platforms are announced or introduced into the market,
consumers typically reduce their purchases of game console entertainment
software products for current console platforms in anticipation of new platforms
becoming available. During these periods, sales of our game console
entertainment software products can be expected to slow down or even decline
until new platforms have been introduced and have achieved wide consumer
acceptance. Each of the three current principal hardware producers launched a
new platform in recent years. Sony made the first shipments of its PlayStation 2
console system in North America and Europe in the fourth quarter of calendar
year 2000. Microsoft made the first shipments of its Xbox console system in
North America in November 2001 and in Europe and Japan in the first quarter of
calendar 2002. Nintendo made the first shipments of its Nintendo GameCube
console system in North America in November 2001 and in Europe in May 2002.
Additionally, in June 2001, Nintendo launched its Game Boy Advance hand held
device. We believe the
-2-
next hardware transition cycle will occur in 2005. Delays in the launch,
shortages, technical problems or lack of consumer acceptance of these platforms
could adversely affect our sales of products for these platforms.
We must make significant expenditures to develop products for new platforms
which may not be successful or released when anticipated.
The interactive entertainment software industry is subject to rapid
technological change. New technologies could render our current products or
products in development obsolete or unmarketable. We must continually anticipate
and assess the emergence and market acceptance of new interactive entertainment
software platforms well in advance of the time the platform is introduced to
consumers. New platforms have historically required the development of new
software and also have the effect of undermining demand for products based on
older technologies. Because product development cycles are difficult to predict,
we must make substantial product development and other investments in a
particular platform well in advance of introduction of the platform. If the
platforms for which we develop new software products or modify existing products
are not released on a timely basis or do not attain significant market
penetration, or if we develop products for a delayed or unsuccessful platform,
we may not be able to recover in revenues our development costs which could be
significant and our business and financial results could be significantly
harmed. An announcement by Sega Corporation in calendar 2001 that it was
discontinuing its Dreamcast platform shows that even experienced hardware
manufacturers are not immune to failure.
We are exposed to seasonality in the purchases of our products.
The interactive entertainment software industry is highly seasonal, with
the highest levels of consumer demand occurring during the year-end holiday
buying season. As a result, our net revenues, gross profits and operating income
have historically been highest during the second half of the year. Additionally,
in a platform transition period, sales of game console software products can be
significantly affected by the timeliness of introduction of game console
platforms by the manufacturers of those platforms, such as Sony, Microsoft and
Nintendo. The timing of hardware platform introduction is also often tied to
holidays and is not within our control. Further, delays in development, licensor
approvals or manufacturing can also affect the timing of the release of our
products, causing us to miss key selling periods such as the year-end holiday
buying season.
We depend on skilled personnel.
Our success depends to a significant extent on our ability to identify,
hire and retain skilled personnel. The software industry is characterized by a
high level of employee mobility and aggressive recruiting among competitors for
personnel with technical, marketing, sales, product development and management
skills. We may not be able to attract and retain skilled personnel or may incur
significant costs in order to do so. If we are unable to attract additional
qualified employees or retain the services of key personnel, our business and
financial results could be negatively impacted.
We depend on Sony, Nintendo and Microsoft for the manufacture and approval of
products that we develop for their hardware platforms.
Generally, when we develop interactive entertainment software products for
hardware platforms offered by Sony, Nintendo or Microsoft, the products are
manufactured exclusively by that hardware manufacturer. Our hardware platform
licenses with Sony, Nintendo and Microsoft provide that the manufacturer may
change prices for the manufacturing of products.
-4-
In addition, these agreements include other provisions such as approval
rights of all products and related promotional materials that give the
manufacturer substantial control over our costs and the release of new titles.
Since each of the manufacturers is also a publisher of games for its own
hardware platforms and manufactures products for all of its other licensees, a
manufacturer may give priority to its own products or those of our competitors
in the event of insufficient manufacturing capacity. Our business and financial
results could be materially harmed by unanticipated delays in the manufacturing
and delivery of our products by Sony, Nintendo and Microsoft. In addition, our
business and financial results could be materially harmed if Sony, Nintendo or
Microsoft used their rights under these agreements to delay the manufacture or
delivery of our products, limit the costs recoverable by us to manufacture
software for their consoles, or elect to manufacture software themselves or use
developers other than us.
If our products contain defects, our business could be harmed significantly.
Software products as complex as the ones we publish may contain undetected
errors when first introduced or when new versions are released. We cannot assure
you that, despite extensive testing prior to release, errors will not be found
in new products or releases after shipment, resulting in loss of or delay in
market acceptance. This loss or delay could significantly harm our business and
financial results.
Inadequate intellectual property protections could prevent us from enforcing or
defending our proprietary technology.
We regard our software as proprietary and rely on a combination of
copyright, trademark and trade secret laws, employee and third party
nondisclosure agreements and other methods to protect our proprietary rights. We
own or license various copyrights and trademarks. While we provide "shrinkwrap"
license agreements or limitations on use with our software, it is uncertain to
what extent these agreements and limitations are enforceable. We are aware that
some unauthorized copying occurs within the computer software industry, and if a
significantly greater amount of unauthorized copying of our interactive
entertainment software products were to occur, it could cause material harm to
our business and financial results.
Policing unauthorized use of our products is difficult, and software piracy
can be a persistent problem, especially in some international markets. Further,
the laws of some countries where our products are or may be distributed either
do not protect our products and intellectual property rights to the same extent
as the laws of the United States, or are poorly enforced. Legal protection of
our rights may be ineffective in such countries, and as we leverage our software
products using emerging technologies such as the Internet and online services,
our ability to protect our intellectual property rights and to avoid infringing
intellectual property rights of others may diminish. We cannot assure you that
existing intellectual property laws will provide adequate protection for our
products in connection with these emerging technologies.
We may be subject to intellectual property claims.
As the number of interactive entertainment software products increases and
the features and content of these products continue to overlap, software
developers increasingly may become subject to infringement claims. Many of our
products are highly realistic and feature materials that are based on real world
examples, which may inadvertently infringe upon the intellectual property rights
of others. Although we believe that we make reasonable efforts to ensure that
our products do not violate the intellectual property rights of others, it is
possible that third parties still may claim infringement. From time to time, we
receive communications from third parties regarding such claims. Existing or
future infringement claims against us, whether valid or not, may be time
consuming and expensive to defend.
-5-
Intellectual property litigation or claims could force us to do one or more
of the following:
o Cease selling, incorporating or using products or services that
incorporate the challenged intellectual property;
o Obtain a license from the holder of the infringed intellectual
property, which if available at all, may not be available on
commercially favorable terms; or
o Redesign our interactive entertainment software products, which could
cause us to incur additional costs, delay introduction and possibly
reduce commercial appeal of our products.
Any of these actions may cause material harm to our business and financial
results.
We rely on independent third parties to develop some of our software products.
We often rely on independent third party interactive entertainment software
developers to develop some of our software products. Since we depend on these
developers in the aggregate, we remain subject to the following risks:
o Continuing strong demand for developers' resources, combined with
recognition they receive in connection with their work, may cause
developers who worked for us in the past to either work for our
competitors in the future or to renegotiate our agreements with them
on terms less favorable for us.
o Limited financial resources and business expertise and inability to
retain skilled personnel may force developers out of business prior to
completing our products or require us to fund additional costs.
o Our competitors may acquire the businesses of key developers or sign
them to exclusive development arrangements. In either case, we would
not be able to engage such developers' services for our products.
Increased competition for skilled third party software developers also has
compelled us to agree to make significant advance payments on royalties to game
developers. If the products subject to these arrangements do not generate
sufficient revenues to recover these royalty advances, we would have to
write-off unrecovered portions of these payments, which could cause material
harm to our business and financial results. In a few cases, we also agree to pay
developers fixed per unit product royalties after royalty advances are fully
recouped. To the extent that sales prices of products on which we have agreed to
pay a fixed per unit royalty are marked down, our profitability could be
adversely affected.
We operate in a highly competitive industry.
The interactive entertainment software industry is intensely competitive
and new interactive entertainment software products and platforms are regularly
introduced. Our competitors vary in size from small companies to very large
corporations with significantly greater financial, marketing and product
development resources than we have. Due to these greater resources, certain of
our competitors can undertake more extensive marketing campaigns, adopt more
aggressive pricing policies, pay higher fees to licensors for desirable motion
picture, television, sports and character properties and pay more to third party
software developers than we can. We believe that the main competitive factors in
the interactive entertainment software industry include: product features; brand
name recognition; compatibility of products with popular platforms; access to
distribution channels; quality of products; ease of use; price; marketing
support; and quality of customer service.
-6-
We compete primarily with other publishers of personal computer and video
game console interactive entertainment software. Significant third party
software competitors currently include, among others: Acclaim Entertainment,
Inc.; Capcom Co. Ltd.; Eidos PLC; Electronic Arts Inc.; Infogrames SA; Konami
Company Ltd.; Namco Ltd.; Midway Games, Inc.; Sega Enterprises, Ltd.; Take-Two
Interactive Software, Inc.; THQ Inc. and Vivendi Universal Publishing. In
addition, integrated video game console hardware and software companies such as
Sony Computer Entertainment, Nintendo Co. Ltd. and Microsoft Corporation compete
directly with us in the development of software titles for their respective
platforms.
We also compete with other forms of entertainment and leisure activities.
For example, we believe that the overall growth in the use of the Internet and
online services by consumers may pose a competitive threat if customers and
potential customers spend less of their available time using interactive
entertainment software and more using the Internet and online services.
We may face difficulty obtaining access to retail shelf space necessary to
market and sell our products effectively.
Retailers of our products typically have a limited amount of shelf space
and promotional resources, and there is intense competition among consumer
interactive entertainment software products for high quality retail shelf space
and promotional support from retailers. To the extent that the number of
products and platforms increases, competition for shelf space may intensify and
may require us to increase our marketing expenditures. Retailers with limited
shelf space typically devote the most and highest quality shelf space to the
best selling products. We cannot assure you that our new products will
consistently achieve such "best seller" status. Due to increased competition for
limited shelf space, retailers and distributors are in an increasingly better
position to negotiate favorable terms of sale, including price discounts, price
protection, marketing and display fees and product return policies. Our products
constitute a relatively small percentage of any retailer's sales volume, and we
cannot assure you that retailers will continue to purchase our products or to
provide our products with adequate levels of shelf space and promotional support
on acceptable terms. A prolonged failure in this regard may significantly harm
our business and financial results.
Our sales may decline substantially without warning and in a brief period of
time because we generally do not have long-term contracts for the sale of our
products.
We currently sell our products directly through our own sales force to mass
merchants, warehouse club stores, large computer and software specialty chains
and through catalogs, as well as to a limited number of distributors, in the
United States and Canada. Outside North America, we sell our products directly
to retailers as well as third party distributors in certain territories. Our
sales are made primarily on a purchase order basis without long-term agreements
or other forms of commitments. The loss of, or significant reduction in sales
to, any of our principal retail customers or distributors could significantly
harm our business and financial results. Our two largest customers, Wal-Mart
Stores, Inc. and Toys "R" Us, Inc., accounted for approximately 14% and 7%,
respectively, of our consolidated net revenues for fiscal 2002. Our five largest
retailers including Wal-Mart and Toys "R" Us, accounted for approximately 35% of
our consolidated net revenues for fiscal 2002. Wal-Mart and Toys "R" Us,
accounted for approximately 10% and 9%, respectively, of our consolidated net
revenues for fiscal 2001. Our five largest retailers, including Wal-Mart and
Toys "R" Us, accounted for approximately 34% of our consolidated net revenues
for 2001.
-7-
We may permit our customers to return our products and to receive pricing
concessions which could reduce our net revenues and results of operations.
We are exposed to the risk of product returns and price protection with
respect to our distributors and retailers. Return policies allow select
distributors and retailers to return defective, shelf-worn and damaged products
in accordance with terms granted. Price protection policies, when granted and
applicable, allow customers a credit against amounts they owe us with respect to
merchandise unsold by them. We may permit product returns from or grant price
protection to our customers under certain conditions. The conditions our
customers must meet to be granted the right to return products or price
protection are, among other things, compliance with applicable payment terms,
delivery to us of weekly inventory and sell-through reports, and consistent
participation in the launches of our premium title releases. We may also
consider other factors, including the facilitation of slow moving inventory and
other market factors. When we offer price protection, we offer it with respect
to a particular product to all of our retail customers; however, only those
customers who meet the conditions detailed above can avail themselves of such
price protection. We also offer a 90-day limited warranty to our end users that
our products will be free from manufacturing defects. Although we maintain a
reserve for returns and price protection, and although we may place limits on
product returns and price protection, we could be forced to accept substantial
product returns and provide price protection to maintain our relationships with
retailers and our access to distribution channels. Product returns and price
protection that exceed our reserves could significantly harm our business and
financial results.
We may be burdened with payment defaults and uncollectible accounts if our
distributors or retailers cannot honor their credit arrangement with us.
Distributors and retailers in the interactive entertainment software
industry have from time to time experienced significant fluctuations in their
businesses, and a number of them have failed. The insolvency or business failure
of any significant retailer or distributor of our products could materially harm
our business and financial results. We typically make sales to most of our
retailers and some distributors on unsecured credit, with terms that vary
depending upon the customer's credit history, solvency, credit limits and sales
history, as well as whether we can obtain sufficient credit insurance. Although
we have insolvency risk insurance to protect against our customers' bankruptcy,
insolvency or liquidation, this insurance contains a significant deductible and
a co-payment obligation, and the policy does not cover all instances of
non-payment. In addition, while we maintain a reserve for uncollectible
receivables, the reserve may not be sufficient in every circumstance. As a
result, a payment default by a significant customer could significantly harm our
business and financial results.
We may not be able to maintain our distribution relationships with key vendors.
Our CD Contact, NBG and CentreSoft subsidiaries distribute interactive
entertainment software and hardware products and provide related services in the
Benelux territories, Germany and the United Kingdom, respectively, and, via
export, in other European territories for a variety of entertainment software
publishers, many of which are our competitors, and hardware manufacturers. These
services are generally performed under limited term contracts. While we expect
to use reasonable efforts to retain these vendors, we may not be successful in
this regard. The cancellation or non-renewal of one or more of these contracts
could significantly harm our business and financial results. Sony and Nintendo
products accounted for approximately 34% and 8%, respectively, of our worldwide
net distribution revenues for fiscal 2002.
-8-
Our international revenues may be subject to regulatory requirements as well as
currency fluctuations.
Our international revenues have accounted for a significant portion of our
total revenues. International sales and licensing accounted for 49%, 43% and 51%
of our total net revenues in fiscal 2002, 2001 and 2000, respectively. We expect
that international revenues will continue to account for a significant portion
of our total revenues in the future. International sales may be subject to
unexpected regulatory requirements, tariffs and other barriers. Additionally,
foreign sales which are made in local currencies may fluctuate. Presently, we
engage in limited currency hedging activities. Although exposure to currency
fluctuations to date has been insignificant, fluctuations in currency exchange
rates may in the future have a material negative impact on revenues from
international sales and licensing and thus our business and financial results.
Our software may be subject to governmental restrictions or rating systems.
Legislation is periodically introduced at the local, state and federal
levels in the United States and in foreign countries to establish a system for
providing consumers with information about graphic violence and sexually
explicit material contained in interactive entertainment software products. In
addition, many foreign countries have laws that permit governmental entities to
censor the content and advertising of interactive entertainment software. We
believe that mandatory government-run rating systems eventually may be adopted
in many countries that are significant markets or potential markets for our
products. We may be required to modify our products or alter our marketing
strategies to comply with new regulations, which could delay the release of our
products in those countries.
Due to the uncertainties regarding such rating systems, confusion in the
marketplace may occur, and we are unable to predict what effect, if any, such
rating systems would have on our business. In addition to such regulations,
certain retailers have in the past declined to stock some of our products
because they believed that the content of the packaging artwork or the products
would be offensive to the retailer's customer base. While to date these actions
have not caused material harm to our business, we cannot assure you that similar
actions by our distributors or retailers in the future would not cause material
harm to our business.
Our software may be subject to legal claims.
Within the past three years, two lawsuits, Linda Sanders, et al. v. Meow
Media, Inc., et al., United States District Court for the District of Colorado,
and Joe James, et al. v. Meow Media, Inc., et al., United States District Court
for the Western District of Kentucky, Paducah Division, have been filed against
numerous video game companies, including us, by the families of victims who were
shot and killed by teenage gunmen in attacks perpetrated at schools. These
lawsuits allege that the video game companies manufactured and/or supplied these
teenagers with violent video games, teaching them how to use a gun and causing
them to act out in a violent manner. Both lawsuits referenced in this paragraph
have been dismissed and are currently undergoing various stages of the appeals
process. The dismissal of the Joe James lawsuit has been affirmed by the United
States Court of Appeals for the Sixth Circuit. While our general liability
insurance carrier has agreed to defend us in these lawsuits, it is uncertain
whether or not the insurance carrier would cover all or any amounts which we
might be liable for if the lawsuits are not decided in our favor. If either of
the lawsuits are ultimately decided against us and our insurance carrier does
not cover the amounts we are liable for, it could have a material adverse effect
on our business and financial results. It is possible that similar additional
lawsuits may be filed in the future. Payment of significant claims by insurance
carriers may make such insurance coverage materially more expensive or
unavailable in the future, thereby exposing our business to additional risk.
-9-
We may face limitations on our ability to integrate additional acquired
businesses or to find suitable acquisition opportunities.
We intend to pursue additional acquisitions of companies, properties and
other assets that can be purchased or licensed on acceptable terms and which we
believe can be operated or exploited profitably. Some of these transactions
could be material in size and scope. While we will continually be searching for
additional acquisition opportunities, we may not be successful in identifying
suitable acquisitions. As the interactive entertainment software industry
continues to consolidate, we face significant competition in seeking and
consummating acquisition opportunities. We may not be able to consummate
potential acquisitions or an acquisition may not enhance our business or may
decrease rather than increase our earnings. In the future, we may issue
additional shares of our common stock in connection with one or more
acquisitions, which may dilute our existing shareholders. Future acquisitions
could also divert substantial management time and result in short term
reductions in earnings or special transaction or other charges. In addition, we
cannot guarantee that we will be able to successfully integrate the businesses
that we may acquire into our existing business. Our shareholders may not have
the opportunity to review, vote on or evaluate future acquisitions.
Our shareholder rights plan, charter documents and other agreements may make it
more difficult to acquire us without the approval of our Board of Directors.
We have adopted a shareholder rights plan under which one right entitling
the holder to purchase two three-hundredths of a share of our Series A Junior
Preferred Stock price at an exercise price of $40 per share (subject to
adjustment) is attached to each outstanding share of common stock. Such
shareholder rights plan makes an acquisition of control in a transaction not
approved by our Board of Directors more difficult. Our Amended and Restated
By-laws have advance notice provisions for nominations for election of nominees
to the Board of Directors which may make it more difficult to acquire control of
us. Our long-term incentive plans provide in many cases for acceleration of
stock options following a change in control, which has the effect of making an
acquisition of control more expensive. In addition, some of our officers have
severance compensation agreements that provide for substantial cash payments and
accelerations of other benefits in the event of a change in control. These
agreements and arrangements may also inhibit a change in control and may have a
negative effect on the market price of our common stock.
Our stock price is highly volatile.
The trading price of our common stock has been and could continue to be
subject to wide fluctuations in response to certain factors, including:
o Quarter to quarter variations in results of operations
o Our announcements of new products
o Our competitors' announcements of new products
o Our product development or release schedule
o General conditions in the computer, software, entertainment, media or
electronics industries
o Timing of the introduction of new platforms and delays in the actual
release of new platforms
o Changes in earnings estimates or buy/sell recommendations by analysts
-10-
o Investor perceptions and expectations regarding our products, plans
and strategic position and those of our competitors and customers
In addition, the public stock markets experience extreme price and trading
volume volatility, particularly in high technology sectors of the market. This
volatility has significantly affected the market prices of securities of many
technology companies for reasons often unrelated to the operating performance of
the specific companies. These broad market fluctuations may adversely affect the
market price of our common stock.
We do not pay cash dividends on our common stock.
We have not paid any cash dividends on our common stock and do not
anticipate paying dividends in the near future.
ACTIVISION, INC.
We are a leading international publisher of interactive entertainment
software products. We have built a company with a diverse portfolio of products
that spans a wide range of categories and target markets and that is used on a
variety of game hardware platforms and operating systems. We have created,
licensed and acquired a group of highly recognizable brands which we market to a
growing variety of consumer demographics.
Our products cover the action/adventure, action sports, racing,
role-playing, simulation, first-person action and strategy game categories. We
offer our products in versions which operate on the Sony PlayStation, Sony
PlayStation 2, Nintendo 64, Nintendo GameCube and Microsoft Xbox console
systems, the Nintendo Game Boy Advance hand held device, as well as on personal
computers. Driven partly by the enhanced capabilities of the current generation
of platforms, we believe that in the next few years there will be significant
growth in the market for interactive entertainment software and we plan to
leverage our skills and resources to extend our leading position in the
industry.
Our publishing business involves the development, marketing and sale of
products, either directly, by license or through our affiliate label program
with third party publishers. In addition to publishing, we maintain distribution
operations in Europe that provide logistical and sales services to third party
publishers of interactive entertainment software, our own publishing operations
and manufacturers of interactive entertainment hardware.
Our objective is to be a worldwide leader in the development, publishing
and distribution of quality interactive entertainment software products that
deliver a highly satisfying consumer entertainment experience. Our strategy
includes the following elements:
Create and Maintain Diversity in Product Mix, Platforms and Markets. We
believe that maintaining a diversified mix of products can reduce our operating
risks and enhance profitability. Therefore, we develop and publish products
spanning a wide range of product categories, including action/adventure, action
sports, racing, role playing, simulation, first-person action and strategy, and
products designed for target audiences ranging from game enthusiasts and
children to mass market consumers and "value priced" buyers. Presently, we
concentrate on developing, publishing and distributing products that operate on
Sony PlayStation 2, Nintendo GameCube and Microsoft Xbox console systems,
Nintendo Game Boy Advance hand held device and the personal computer. We
typically offer our products for use on multiple platforms in order to reduce
the risks associated with any single platform, leverage our costs over a larger
installed base and increase unit sales.
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Create, Acquire and Maintain Strong Brands. We focus development and
publishing activities principally on products that are, or have the potential to
become, franchise properties with sustainable consumer appeal and brand
recognition. These products can thereby serve as the basis for sequels, prequels
and related new products that can be released over an extended period of time.
We believe that the publishing and distribution of products based in large part
on franchise properties enhances predictability of revenues and the probability
of high unit volume sales and operating profits. We have entered into a series
of strategic relationships with the owners of intellectual property pursuant to
which we have acquired the rights to publish products based on franchises such
as Star Trek, various Disney films such as Toy Story 2 and Marvel Comics'
properties such as Spider Man, X Men, Blade, Iron Man and Fantastic Four. We
have also capitalized on the success of our Tony Hawk's Pro Skater products to
sign long term agreements, many of which are exclusive, with numerous other
action-sports athletes including superstars Mat Hoffman in BMX biking, Kelly
Slater in surfing, Shaun Palmer in snowboarding, Shaun Murray in wakeboarding
and Travis Pastrana in motorcross biking and establish the "Activision O2" brand
as the dominant brand in the action-sports category.
Enforce Disciplined Product Selection and Development Processes. The
success of our publishing business depends, in significant part, on our ability
to develop games that will generate high unit volume sales and that can be
completed up to our high quality standards. Our publishing units have
implemented a formal control process for the selection, development, production
and quality assurance of our products. We apply this process, which we refer to
as the "Greenlight Process," to products under development with external, as
well as internal resources. The Greenlight Process includes in depth reviews of
each project at five intervals during the development process by a team that
includes several of our highest ranking operating managers and coordination
between our sales and marketing personnel and development staff at each step in
the process.
We develop our products using a strategic combination of our internal
development resources and external development resources acting under contract
with us, some of which are independent and in some of which we have a capital
investment. We typically select our external developers based on their track
record and expertise in producing products in the same category. One developer
will often produce the same game for multiple platforms and will produce sequels
to the original game. We believe that this selection process allows us to
strengthen and leverage the particular expertise of our internal and external
development resources.
Continue to Improve Profitability. We are continually striving to reduce
our risk and increase our operating leverage and efficiency with the goal of
increased profitability. We believe the key factor affecting our profitability
will be the success rate of our product releases. Therefore, our product
selection and development process includes, as a significant component, periodic
evaluations of the expected commercial success of products under development.
Through this process, titles that we determine to be less promising are either
discontinued before we incur additional development costs, or if necessary,
corrections can be made in the development process. In addition, our focus on
cross platform releases and branded products will, we believe, contribute to
this strategic goal.
In order to further our emphasis on improved profitability, we have
implemented a number of operational initiatives. We have increased our product
development capabilities by allocating a portion of our product development
investments to experienced independent development companies working under
contract with us, thereby taking advantage of specialized third party developers
without incurring the fixed overhead obligations associated with increased
internally employed staff. Additionally, we have acquired certain experienced
and specialized developers when, in our opinion, we can enhance profitability
through the elimination of royalty obligations. Our sales and marketing
operations work with our studio resources to increase the visibility of new
product launches and to coordinate timing and promotion of product releases. Our
finance and administration and sales and marketing personnel work together to
improve inventory management and accounts receivables collections. We have
broadly
-12-
instituted objective based reward programs that provide incentives to management
and staff throughout the organization to produce results that meet our financial
objectives.
Grow Through Continued Strategic Acquisitions and Alliances. The
interactive entertainment industry is consolidating, and we believe that success
in this industry will be driven in part by the ability to take advantage of
scale. Specifically, smaller companies are more capital constrained, enjoy less
predictability of revenues and cash flow, lack product diversity and must spread
fixed costs over a smaller revenue base. Several industry leaders are emerging
that combine the entrepreneurial and creative spirit of the industry with
professional management, the ability to access the capital markets and the
ability to maintain favorable relationships with strategic developers, property
owners and retailers. Through 14 completed acquisitions since 1997, we believe
that we have successfully diversified our operations, our channels of
distribution, our development talent pool and our library of titles, and have
emerged as one of the industry's leaders. We intend to continue to expand our
resources through acquisitions, strategic relationships and key license
transactions. We expect to focus our acquisition strategy on increasing our
development capacity through the acquisition of or investment in selected
experienced development firms, and expanding our intellectual property library
through licenses and strategic relationships with intellectual property owners.
USE OF PROCEEDS
All net proceeds from the sale of our shares of common stock will go to the
stockholders who offer and sell their shares. Accordingly, we will not receive
any of the proceeds from the sale of the common stock being offered hereby for
the account of the selling stockholders.
SELLING STOCKHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of shares of our common stock by the selling stockholders as of
November 18, 2002, the number of shares of common stock being offered by this
prospectus and the number of shares of common stock beneficially owned by the
selling stockholders after the offering.
Name of Number of Shares of Number of Shares Number of Shares of
Selling Common Stock Owned of Common Stock Common Stock Owned
Stockholder Prior to the Offering Being Offered After the Offering
------------- --------------------- ---------------- -------------------
Peter Morawiec 38,861 38,861 (1) 0
Adrian J. Stephens 38,861 38,861 (1) 0
Cary I. Hara 14,650 14,650 (1) 0
Joby R. Otero 5,631 5,631 (1) 0
Matthew Whiting 5,631 5,631 (1) 0
Christopher Otcasek 2,252 2,252 (1) 0
Jeffrey Lander 4,505 4,505 (1) 0
-13-
All Selling Stockholders
as a Group 110,391 110,391 0
________________
(1) All of these shares, as is more fully described below, are (i) subject to
certain escrow requirements and (ii) to be issued to the selling
stockholders upon completion of certain software program revenue
requirements.
Pursuant to an escrow agreement among us, the selling stockholders and
Comerica Bank, as escrow agent, an aggregate of 110,391 shares of common stock,
or 100% of the total number of shares of common stock issued in connection with
the merger, have been deposited in an escrow account in connection with the
transaction (the "Escrow Shares"). The Escrow Shares have been deposited in
order to ensure that the representations, warranties and covenants made by the
selling stockholders under the Merger Agreement are not breached and in order to
provide a source of indemnification to Activision pursuant to the Merger
Agreement. Two-thirds of the Escrow Shares will be released from escrow and
issued to the selling stockholders, to the extent not used to indemnify us, upon
fulfillment of certain software program revenue requirements associated with the
development of True Crime: Streets of L.A., and one-third of the Escrow Shares
will be released from escrow and issued to the selling stockholders, to the
extent not used to indemnify us, upon fulfillment of certain software program
revenue requirements associated with the development of Shrek 2.
We will file a prospectus supplement to this prospectus to reflect any
adjustment in the number of shares of common stock being offered by the selling
stockholders hereunder in the event the conditions described above are not
fulfilled.
Prior to the acquisition of Luxoflux by us, Luxoflux was a party to various
development agreements with us. Other than such contracts and the fact that the
selling stockholders were shareholders of Luxoflux, which became a wholly owned
subsidiary of ours on October 4, 2002 pursuant to the Merger Agreement, none of
the selling stockholders has had a material relationship with us within the past
three years.
DESCRIPTION OF CAPITAL STOCK
We have 130,000,000 shares of authorized capital stock, $.000001 par value,
consisting of 125,000,000 shares of common stock and 3,750,000 shares of serial
preferred stock and 1,250,000 shares of Series A Junior Preferred Stock. As of
November 12, 2002, 66,995,133 shares of our common stock were outstanding. Our
common stock is listed on the Nasdaq National Market under the symbol "ATVI."
Each outstanding share of common stock entitles the holder to one vote on
all matters submitted to a vote of stockholders, including the election of
directors. There is no cumulative voting in the election of directors, which
means that the holders of a majority of the outstanding shares of common stock
can elect all of the directors then standing for election. Subject to
preferences which may be applicable to any outstanding shares of preferred
stock, holders of common stock are entitled to such distributions as may be
declared from time to time by our Board of Directors out of funds legally
available. We have not paid, and have no current plans to pay, cash dividends on
our common stock. We intend to retain all earnings for use in our business.
Holders of common stock have no conversion, redemption or preemptive rights
to subscribe to any of our securities. All outstanding shares of common stock
are fully paid and nonassessable. In the event of any liquidation, dissolution
or winding up of the affairs of holders of our common stock will be entitled to
share ratably in our assets remaining after provision for payment of liabilities
to creditors and preferences applicable to outstanding shares of preferred
stock.
-14-
The rights, preferences and privileges of holders of common stock are
subject to the rights of the holders of any outstanding shares of preferred
stock. At present, no shares of preferred stock are outstanding. As of November
12, 2002, we had approximately 3,200 stockholders of record, excluding banks,
brokers and depository companies that are stockholders of record for the account
of beneficial owners.
The transfer agent for our common stock is Continental Stock Transfer &
Trust Company, 17 Battery Place, New York, New York 10004.
PLAN OF DISTRIBUTION
The common stock may be sold from time to time by the selling stockholders,
or by pledgees, donees, transferees or other successors in interest. Such sales
may be made on one or more exchanges or in the over the counter market, or
otherwise, at prices and at terms then prevailing or at prices related to the
then current market price, or in negotiated transactions. The shares may be sold
from time to time in one or more of the following transactions, without
limitation: (a) a block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction, (b) purchases by a broker or
dealer as principal and resale by such broker or dealer or for its account
pursuant to this prospectus, as supplemented, (c) an exchange distribution in
accordance with the rules of such exchange, and (d) ordinary brokerage
transactions and transactions in which the broker solicits purchasers. In
addition, any securities covered by this prospectus which qualify for sale
pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this
prospectus, as supplemented. From time to time the selling stockholders may
engage in short sales, short sales against the box, puts and calls and other
transactions in our securities or derivatives thereof, and may sell and deliver
the shares in connection therewith.
From time to time selling stockholders may pledge their shares pursuant to
the margin provisions of their respective customer agreements with their
respective brokers. Upon a default by a selling stockholder, the broker may
offer and sell the pledged shares of common stock from time to time as described
above.
All expenses of registration of the common stock (other than commissions
and discounts of underwriters, dealers or agents), estimated to be approximately
$25,000, shall be borne by us. As and when we are required to update this
prospectus, we may incur additional expenses in excess of this estimated amount.
LEGAL MATTERS
Certain legal matters in connection with the shares of common stock offered
hereby have been passed upon for us by Bryan Cave LLP, 1290 Avenue of the
Americas, New York, New York 10104. Kenneth L. Henderson, one of our directors,
is a partner of Bryan Cave LLP. In addition, Bryan Cave LLP owns approximately
14,250 shares of our common stock.
EXPERTS
Our consolidated financial statements and schedule for the year ended March
31, 2000 have been incorporated by reference herein and in this registration
statement in reliance upon the report of KPMG LLP, independent accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
The consolidated financial statements as of and for the years ended March
31, 2001 and March 31, 2002, incorporated in this prospectus by reference to the
Annual Report on Form 10-K for the year
-15-
ended March 31, 2002 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We are a reporting company and file annual, quarterly and special reports,
proxy statements and other information with the Securities and Exchange
Commission, or the SEC. You may read and copy such material at the Public
Reference Room maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1 800 SEC 0330 for more information on the
operation of the Public Reference Room. You can also find our SEC filings at the
SEC's web site at http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information that we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings we will make with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934:
o Our Annual Report on Form 10-K for the fiscal year ended March 31,
2002;
o Our Quarterly Report on Form 10-Q for the quarterly periods ended June
30, 2002, September 30, 2002 and December 31, 2002;
o Our Current Reports on Form 8-K filed on May 22, 2002, June 5, 2002
and June 6, 2002; and
o The description of our common stock and the rights associated with our
common stock contained in our Registration Statement on Form S-3,
Registration No. 333-46425, and our Registration Statement on Form
8-A, File No. 001-15839, filed on April 19, 2000.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Activision, Inc.
3100 Ocean Park Boulevard
Santa Monica, California 90405
(310) 255-2000
Attn: Investor Relations
-16-
================================================================================
110,391 Shares
ACTIVISION, INC.
Common Stock
----------------
PROSPECTUS
----------------
___________, 2003
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table itemizes the expenses incurred by Activision, Inc. (the
"Company") in connection with the offering of the common stock being registered.
All amounts shown are estimates except the Securities and Exchange Commission
(the "Commission") registration fee.
Item Amount
---- ------
Registration Fee - Securities and Exchange Commission $ 198*
Legal Fees and Expenses 7,500
Accounting Fees and Expenses 15,000
Miscellaneous 2,500
-------
TOTAL $25,198
_________________
* Pursuant to Rule 457(p) of the Securities Act of 1933, as amended, the
registration fee of $198 is offset against the $57,141 registration fee (of
which $537.51 remains) that was previously paid to the Commission relating
to 6,900,000 shares of Common Stock previously registered by the registrant
pursuant to its Registration Statement on Form S-3 filed with the
Commission on July 30, 2001, (File No. 333-66280), which Registration
Statement was withdrawn on October 22, 2001, prior to the issuance of any
such shares.
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law ("DGCL"), paragraphs A
and B of Article SIXTH of the Company's Amended and Restated Certificate of
Incorporation, as amended (the "Certificate of Incorporation"), and paragraph 5
of Article VII of the Company's Amended and Restated By-laws (the "By-Laws")
provide for the indemnification of the Company's directors and officers in a
variety of circumstances, which may include liabilities under the Securities Act
of 1933, as amended (the "Securities Act").
Paragraph B of Article SIXTH of the Certificate of Incorporation provides
mandatory indemnification rights to any officer or director of the Company who,
by reason of the fact that he or she is an officer or director of the Company,
is involved in a legal proceeding of any nature. Such indemnification rights
shall include reimbursement for expenses incurred by such officer or director in
advance of the final disposition of such proceeding in accordance with the
applicable provisions of the DGCL. Paragraph 5 of Article VII of the Company's
By-laws currently provides that the Company shall indemnify its directors and
officers to the fullest extent permitted by the DGCL.
Paragraph A of Article SIXTH of the Certificate of Incorporation contains a
provision which eliminates the personal liability of a director to the Company
and its stockholders for certain breaches of his or her fiduciary duty of care
as a director. This provision does not, however, eliminate or limit the personal
liability of a director (i) for any breach of such director's duty of loyalty to
the Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
the Delaware statutory provision making directors personally liable, under a
negligence standard, for unlawful dividends or unlawful stock repurchases or
redemptions, or (iv) for any transaction from which the director derived an
improper personal benefit. This provision offers persons who serve on the Board
of Directors of the Company protection against awards of monetary damages
resulting from negligent (except as indicated above) and "grossly" negligent
actions taken in the performance of their duty of care, including grossly
negligent business decisions made in connection with takeover proposals for the
Company. As a result of this provision, the ability of the Company or a
stockholder thereof to successfully prosecute an action against a director for a
breach of his duty of care has been limited. However, the provision does not
affect the availability of equitable remedies such as an injunction or
rescission based upon a director's breach of his duty of care.
The Company maintains a directors' and officers' insurance policy which
insures the officers and directors of the Company from any claim arising out of
an alleged wrongful act by such persons in their respective capacities as
officers and directors of the Company. In addition, the Company has entered into
indemnification agreements with its officers and directors containing provisions
which are in some respects broader than the specific indemnification provisions
contained in the DGCL. The indemnification agreements require the Company, among
other things, to indemnify such officers and directors against certain
liabilities that may arise by reason of their status or service as directors or
officers (other than liabilities arising from willful misconduct of a culpable
nature) and to advance their expenses incurred as a result of any proceeding
against them as to which they could be indemnified. The Company believes that
these agreements are necessary to attract and retain qualified persons as
directors and officers.
It is currently unclear as a matter of law what impact these
provisions will have regarding securities law violations. The Commission
takes the position that indemnification of directors, officers and
controlling persons against liabilities arising under the Securities Act is
against public policy as expressed in the Securities Act and therefore is
unenforceable.
Item 16. Exhibits
(a) Exhibits:
5.1 Opinion of Bryan Cave LLP as to the legality of securities
being registered.*
10.1 Confidential License Agreement for Nintendo Gamecube
(Western Hemisphere), dated as of November 9, 2001, between Nintendo
of America Inc. and Activision Publishing, Inc.*
10.2 License Agreement for the Nintendo Gamecube System (EEA),
dated as of June 5, 2002, between Nintendo Co., Ltd. and Activision,
Inc.*
10.3 Confidential License Agreement for Game Boy Advance (Western
Hemisphere), dated as of May 10, 2001, between Nintendo of America,
Inc. and Activision Publishing, Inc.*
10.4 Confidential License Agreement for the Game Boy Advance
Video Game System (EEA, Austrailia and New Zealand), dated as of
September 14, 2001, between Nintendo Co., Ltd. and Activision, Inc.*
10.5 Microsoft Corporation Xbox Publisher License Agreement,
dated as of July 18, 2001, between Microsoft Corporation and
Activision Publishing, Inc.*
II-2
10.6 Amendment to Microsoft Corporation Xbox Publisher License
Agreement, dated as of April 19, 2002, between Microsoft Corporation
and Activision Publishing, Inc.*
10.7 Xbox Live Distribution Amendment to the Xbox Publisher
Licensing Agreement, dated as of October 28, 2002, between Microsoft
Corporation and Activision Publishing, Inc.*
10.8 Licensed Publisher Agreement, dated as of July 13, 2002,
between Sony Computer Entertainment America Inc. and Activision,
Inc.*
10.9 Amendment to Licensed Publisher Agreement, dated as of April
1, 2000, between Sony Computer Entertainment America Inc. and
Activision, Inc.*
10.10 Playstation2 Licensed Publisher Agreement, dated as of
March 23, 2001, between Sony Computer Entertainment Europe Limited and
Activision UK Limited.*
23.1 Consent of Bryan Cave LLP (included as part of Exhibit
5.1).*
23.2 Consent of KPMG LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
24.1 Power of attorney (included on signature page).*
_____________
* Previously Filed
II-3
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to 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 Company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 Company hereby further undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) 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.
The Company hereby further undertakes to deliver or cause to be delivered
with the Prospectus, to each person to whom the Prospectus is sent or given, the
latest annual report to security holders that is incorporated by reference in
the Prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Exchange Act; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are not set
forth in the Prospectus, to deliver, or cause to be delivered to each person to
whom the Prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the Prospectus to provide such interim
financial information.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that
II-4
a claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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 Amendment
No. 2 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Los Angeles, State of
California, on February 19, 2003.
ACTIVISION, INC.
By: /s/ Ronald Doornink, President
-------------------------------------
Ronald Doornink, President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 2 to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
Name Title Date
---- ----- ----
* Chairman, Chief Executive Officer February 19, 2003
------------------------- and Director
(Robert A. Kotick)
* Co-Chairman and Director February 19, 2003
-------------------------
(Brian G. Kelly)
/s/ Ronald Doornink President, Activision, Inc.; February 19, 2003
------------------------- Chief Executive Officer, Activision
(Ronald Doornink) Publishing Inc. (Principal Executive
Officer)
* Executive Vice President and February 19, 2003
-------------------------- Chief Financial Officer
(William J. Chardavoyne) (Principal Financial
and Accounting Officer)
* Director February 19, 2003
-------------------------
(Kenneth L. Henderson)
* Director February 19, 2003
-------------------------
(Barbara S. Isgur)
* Director February 19, 2003
-------------------------
(Steven T. Mayer)
* Director February 19, 2003
-------------------------
(Robert J. Morgado)
*By: /s/ Ronald Doornink
-------------------------
Ronald Doornink
(Attorney-in-fact)
EXHIBIT INDEX
Exhibit No. Description
5.1 Opinion of Bryan Cave LLP as to the legality of securities being
registered.*
10.1 Confidential License Agreement for Nintendo Gamecube (Western
Hemisphere), dated as of November 9, 2001, between Nintendo of America
Inc. and Activision Publishing, Inc.*
10.2 License Agreement for the Nintendo Gamecube System (EEA), dated as of
June 5, 2002, between Nintendo Co., Ltd. and Activision, Inc.*
10.3 Confidential License Agreement for Game Boy Advance (Western
Hemisphere), dated as of May 10, 2001, between Nintendo of America,
Inc. and Activision Publishing, Inc.*
10.4 Confidential License Agreement for the Game Boy Advance Video Game
System (EEA, Austrailia and New Zealand), dated as of September 14,
2001, between Nintendo Co., Ltd. and Activision, Inc.*
10.5 Microsoft Corporation Xbox Publisher License Agreement, dated as of
July 18, 2001, between Microsoft Corporation and Activision
Publishing, Inc.*
10.6 Amendment to Microsoft Corporation Xbox Publisher License Agreement,
dated as of April 19, 2002, between Microsoft Corporation and
Activision Publishing, Inc.*
10.7 Xbox Live Distribution Amendment to the Xbox Publisher Licensing
Agreement, dated as of October 28, 2002, between Microsoft Corporation
and Activision Publishing, Inc.*
10.8 Licensed Publisher Agreement, dated as of July 13, 2002, between Sony
Computer Entertainment America Inc. and Activision, Inc. ("Playstation
license").*
10.9 Amendment to Licensed Publisher Agreement, dated as of April 1, 2000,
between Sony Computer Entertainment America Inc. and Activision, Inc.
("Playstation2 license").*
10.10 Playstation2 Licensed Publisher Agreement, dated as of March 23,
2001, between Sony Computer Entertainment Europe Limited and
Activision UK Limited.*
23.1 Consent of Bryan Cave LLP (included as part of Exhibit 5.1).*
23.2 Consent of KPMG LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
24.1 Power of attorney (included on signature page).*
_____________
* Previously Filed