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As filed with the Securities and Exchange Commission on December 7, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACTIVISION, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 94-2606438
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11601 WILSHIRE BOULEVARD
SUITE 1000
LOS ANGELES, CALIFORNIA 90025
(Address of Principal Executive Offices) (Zip Code)
ACTIVISION, INC. 1991 STOCK OPTION AND STOCK AWARD PLAN
(Full title of the plan)
Robert A. Kotick
Chairman of the Board
Activision, Inc.
11601 Wilshire Boulevard
Suite 1000
Los Angeles, California 90025
(310) 473-9200
(Name, address and telephone number of agent for service)
Copies to:
Kenneth L. Henderson, Esq.
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
CALCULATION OF REGISTRATION FEE
TITLE OF AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO REGISTERED PRICE PER SHARE(1) OFFERING REGISTRATION FEE
BE REGISTERED PRICE(1)
Common Stock, 2,000,000(2) $17.125(1) $34,250,000(1) $11,810.34
par value
$.000001 per share
(1) Estimated solely for purposes of calculating the registration fee. Pursuant
to Rules 457(c) and (h), the Proposed Maximum Offering Price Per Share and
the Proposed Maximum Aggregate Offering Price are computed on the basis of
the average of the high and low prices for such security on November 30,
1995, as reported on the NASDAQ National Market.
(2) The shares covered by this Registration Statement represent the underlying
stock for the stock options, restricted stock, deferred stock, stock
appreciation rights and other stock-based awards to be granted to registrant
under its 1991 Stock Option and Stock Award Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Activision, Inc., a Delaware corporation,
(the "Company"), with the Securities and Exchange Commission (the "Commission")
are incorporated in this Registration Statement by reference:
1. Annual Report on Form 10-K for the year ended MarchE31, 1995.
2. Quarterly Reports on Form 10-Q for the quarters ended June 30,
1995 and September 30, 1995.
3. Proxy Statement dated August 18, 1995.
All documents filed subsequent to the filing date of this Registration
Statement with the Commission by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all securities offered by this Registration Statement have been sold or which
de-registers all such securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of the filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated herein by reference shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequent filed
document which also is, or is deemed to be, incorporated by reference herein
modifies or supersedes such prior statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement, except as indicated herein.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL"),
paragraph B of Article SIXTH of the Company's Amended and Restated Certificate
of Incorporation and paragraph 5 of Article VII of the Company's 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 Amended and Restated 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 provide that the Company shall
indemnify its directors and officers to the fullest extent permitted by the
DGCL.
Paragraph A of Article SIXTH of the Amended and Restated 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 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
3.1 Amended and Restated Certificate of Incorporation of Activision, Inc.,
dated October 15, 1992 (incorporated by reference to Exhibit 4.5 to
Mediagenic Inc.'s, predecessor to the Company ("Mediagenic"),
Registration Statement on Form S-8, Registration No. 33-48411).
3.2 Bylaws of Activision, Inc. (incorporated by reference to Exhibit 4.6 to
Mediagenic's Registration Statement on Form S-8, Registration No. 33-
48411).
3.3 Agreement and Plan of Merger between Activision, Inc., a California
corporation, and Activision, Inc., a Delaware corporation, as filed with
the Secretary of State of the State of Delaware (incorporated by
reference to Exhibit 4.7 to Mediagenic's Registration Statement on Form S-
8, Registration No. 33-48411).
4.1 Activision, Inc. 1991 Stock Option and Stock Award Plan, as amended
through September 19, 1995.
5.1 Opinion of Robinson Silverman Pearce Aronsohn & Berman LLP, counsel to
the Company, as to the legality of the Common Stock being registered.
23.1 Consent of Independent Accountants, Coopers & Lybrand L.L.P.
23.2 Consent of Robinson Silverman Pearce Aronsohn & Berman LLP (included as
part of Exhibit 5.1).
24.1 Power of Attorney (included on signature pages).
Item 9. Undertakings.
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-
effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) will not apply if
the Registration Statement is on Form S-3 or Form S-8Eand the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act, that are incorporated by reference in this
Registration Statement.
(b) 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.
(c) 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.
2. The undersigned registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this 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.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Securi
ties Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment 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 the 30th day of November, 1995.
ACTIVISION, INC.
(the "Company")
By:/s/Robert A. Kotick
Robert A. Kotick, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Brian G. Kelly as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including, without limitation, post-effective amendments) to
this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
/s/ Robert A. Kotick Chairman of the Board, November 30, 1995
(Robert A. Kotick) Chief Executive Officer
and Director
(Principal Executive Officer)
/s/ Brian G. Kelly Chief Operating Officer, November 30, 1995
(Brian G. Kelly) Secretary and Director
(Principal Financial Officer)
/s/ Barry J. Plaga Vice President and Chief November 30, 1995
Accounting Officer
(Principal Accounting Officer)
/s/ Howard E. Marks Executive Vice President November 30, 1995
(Howard E. Marks) and Director
/s/ Barbara S. Isgur Director November 30, 1995
(Barbara S. Isgur)
/s/ Steven T. Mayer Director November 30, 1995
(Steven T. Mayer)
/s/ Martin J. Raynes Director November 30, 1995
(Martin J. Raynes)
EXHIBIT INDEX
No. Document Page
3.1 Amended and Restated Certificate of
Incorporation of Activision, Inc., *
dated October 15, 1992.
3.2 Bylaws of Activision, Inc. *
3.3 Agreement and Plan of Merger between
Activision, Inc., a California corporation,
and Activision, Inc., a Delaware corporation,
as filed with the Secretary of State of *
the State of Delaware.
4.1 Activision, Inc. 1991 Stock Option and
Stock Award Plan, as amended through
September 19, 1995.
5.1 Opinion of Robinson Silverman Pearce
Aronsohn & Berman LLP, counsel to the Company,
as to the legality of the Common Stock
being registered.
23.1 Consent of Independent Accountants,
Coopers & Lybrand L.L.P.
23.2 Consent of Robinson Silverman Pearce
Aronsohn & Berman LLP (included as part of
Exhibit 5.1)
24.1 Power of Attorney (included on signature
page).
_________________
* Incorporated by reference to the Company's Registration Statement on
Form S-8, Registration No. 33-48411.
EXHIBIT 4.1
ACTIVISION, INC.
1991 STOCK OPTION AND STOCK AWARD PLAN
SECTION 1. PURPOSE OF THE PLAN. The purpose of the 1991 Stock
Option and Stock Award Plan (the "Plan") is to aid Activision, Inc. (the
"Corporation") and its subsidiaries in securing and retaining officers and
other key employees of outstanding ability and to motivate such employees
to exert their best efforts on behalf of the Corporation and its
subsidiaries. In addition, the Corporation expects that it will benefit
from the added interest which the respective optionees and participants
will have in the welfare of the Corporation as a result of their ownership
or increased ownership of the Common Stock of the Corporation.
SECTION 2. ADMINISTRATION. (a) The Board of Directors of the
Corporation (the "Board") shall designate a Committee of not less than two
Directors (the "Committee") who shall serve at the pleasure of the Board.
No member of the Committee shall be eligible to participate in the Plan
while serving on the Committee, and each member of the Committee shall be a
"Disinterested Person" as defined under Rule 16b-3 under the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"). The Committee shall
have full power and authority, subject to such resolutions not inconsistent
with the provisions of the Plan as may from time to time be issued or
adopted by the Board (provided the majority of the Board acting on the
matter are Disinterested Persons), to grant to eligible employees pursuant
to the provisions of the Plan: (i) stock options to purchase shares,
(ii)Estock appreciations rights, (iii)Erestricted stock, (iv)Edeferred
stock, or (v)Eany other Stock-based awards permitted hereunder (each of the
foregoing being an "AWARD" and collectively, the "AWARDS"). The Committee
shall also interpret the provisions of the Plan and any AWARD issued under
the Plan (and any agreements relating thereto) and supervise the
administration of the Plan.
(b) The Committee shall: (i)Eselect the officers and other key
employees of the Corporation and its subsidiaries to whom AWARDS may from
time to time be granted hereunder; (ii)Edetermine whether incentive stock
options (under Section 422 of the Internal Revenue Code of 1986, as the
same may be amended from time to time, hereinafter referred to as the
"Code"), nonqualified stock options, stock appreciation rights, restricted
stock, deferred stock, or other Stock-based awards, or a combination of the
foregoing, are to be granted hereunder; (iii)Edetermine the number of
shares to be covered by each AWARD granted hereunder; (iv)Edetermine the
terms and conditions, not inconsistent with the provisions of the Plan, of
any AWARD granted hereunder (including but not limited to any restriction
and forfeiture condition on such AWARD and/or the shares of stock relating
thereto); (v)Edetermine whether, to what extent and under what
circumstances AWARDS may be settled in cash; (vi)Edetermine whether, to
what extent and under what circumstances stock and other amounts payable
with respect to an AWARD under this Plan shall be deferred either
automatically or at the election of the participant; and (vii)Edetermine
whether, to what extent and under what circumstances options grants and/or
other AWARDS under the Plan are to be made, and operate, on a tandem basis.
(c) All decisions made by the Committee pursuant to the provisions
of the Plan and related orders or resolutions of the Board (as and to the
extent permitted hereunder) shall be final, conclusive and binding on all
persons, including the Corporation, its shareholders, employees and Plan
participants.
SECTION 3. STOCK SUBJECT TO THE PLAN. Except as otherwise provided
by this Section 3, the total number of shares of Common Stock of the
Corporation (the "Stock") available for distribution under the Plan is
4,066,667. Such shares may consist, in whole or in part, of authorized and
unissued shares or treasury shares, except that treasury shares must be
used in the case of restricted stock. If any shares that have been
optioned cease to be subject to option because the option has terminated,
expired or been cancelled without having been exercised, or if any shares
subject to any restricted stock, deferred stock or other Stock-based award
granted hereunder are forfeited or such award otherwise terminates without
the actual or deemed delivery of such shares, such shares shall again be
available for distribution under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock split, stock dividend, extraordinary cash dividend,
or other change in corporate structure affecting the Stock, such adjustment
shall be made in the aggregate number of shares which may be delivered
under the Plan, in the number and/or option price of shares subject to
outstanding options granted under the Plan, and/or in the number of shares
subject to restricted stock, deferred stock, or other Stock-based awards
granted under the Plan as may be determined to be appropriate by the
Committee, in its sole discretion; provided that the number of shares
subject to any AWARD shall always be a whole number; and provided further
that, with respect to incentive stock options, no such adjustment shall be
authorized to the extent that such adjustment would cause the Plan to
violate Section 422(b)(1) of the Code or any successor provision thereto.
Such adjusted option price shall also be used to determine the amount
payable by the Corporation upon the exercise of any stock appreciation
right associated with any option. In addition, subject to the limitations
provided in Section 10, the Committee is authorized to make adjustments in
the terms and conditions of, and performance criteria relating to, AWARDS
in recognition of unusual or nonrecurring events (including, without
limitation, events described in this paragraph) affecting the Corporation
or the financial statements of the Corporation, or in response to changes
in applicable laws, regulations or accounting principles.
SECTION 4. ELIGIBILITY.
(a) EMPLOYEES AND OTHERS. Officers, employees, consultants,
representatives and other contractors and agents of the Corporation and its
subsidiaries (but excluding members of the Committee and any person who
serves only as a Director) who are responsible for the management, growth,
profitability and protection of the business of the Corporation and its
subsidiaries are eligible to be granted AWARDS under the Plan. The
participants under the Plan shall be selected from time to time by the
Committee, in its sole discretion, from among those eligible, and the
Committee shall determine, it its sole discretion, the number of shares
covered by each stock option, the number of stock appreciation rights (if
any) granted to each optionee, and the number of shares (if any) subject to
restricted stock, deferred stock or other Stock-based awards granted to
each participant.
(b) TEN PERCENT STOCKHOLDERS. No stock options may be granted under
the Plan to any person who owns, directly or indirectly (within the meaning
of sections 422(b)(6) and 424(d) of the Code), at the time the stock option
is granted, stock possessing more than 10% of the total combined voting
power or value of all classes of stock of the Corporation or any of its
subsidiaries, unless the option prices is at least 110% of the "Fair Market
Value" (as defined below) of the shares subject to the option, determined
on the date of the grant, and the option by its terms is not exercisable
after the expiration of five years from the date such option is granted.
For purposes of the Plan, a subsidiary of the Corporation shall be
any corporation which at the time qualifies as a subsidiary thereof under
the definition of "subsidiary corporation" in Section 424(f) of the Code.
SECTION 5. STOCK OPTIONS. Any stock option granted under the Plan
shall be in such form as the Committee may from time to time approve. Any
such option shall be subject to the following terms and conditions and
shall contain such additional terms and conditions, not inconsistent with
the provisions of the Plan, as the Committee shall deem desirable. The
Committee shall designate stock options at the time of the grant thereof as
either "incentive stock options" or "nonqualified stock options."
(a) OPTION PRICE. Subject to Section 4(b) hereof, the purchase
price per share of the Stock purchasable under an incentive stock option
shall be determined by the Committee, but will not be less than 100% of the
Fair Market Value of such Stock on the date of the grant of such option.
The purchase price per share of the Stock purchasable under a nonqualified
stock option shall be determined by the Committee, but will not be less
than 85% of the Fair Market Value of such Stock on the date of the grant of
such option.
The "Fair Market Value" of a share of Common Stock as of a specified
date shall mean the closing price of a share of stock on the principal
securities exchange on which such shares are traded on the day immediately
preceding the date as of which Fair Market Value is being determined, or on
the next preceding date on which such shares are traded if no shares were
traded on such immediately preceding day; or if the shares are not traded
on a securities exchange, Fair Market Value shall be deemed to be the
average of the high bid and low asked prices of the shares in the over-the-
counter market on the day immediately preceding the date as of which Fair
Market Value is being determined. If the shares are not publicly traded,
Fair Market Value shall be determined by the Committee in its sole
discretion using appropriate criteria. In no case shall Fair Market Value
be less than the par value of a share of Stock.
(b) OPTION PERIOD. Subject to Section 4(b) hereof, the term of each
stock option shall be fixed by the Committee, provided, however, no stock
option shall be exercisable after the expiration of 10 years from the date
the option is granted.
(c) EXERCISABILITY. Stock options shall be exercisable at such time
or times as determined by the Committee at or subsequent to grant;
provided, however, all stock options granted hereunder shall be exercisable
at the rate of at least 20% per year over five years from the date such
option is granted.
(d) METHOD OF EXERCISE. Stock options may be exercised, in whole or
in part, by giving written notice of exercise to the Corporation specifying
the number of shares to be purchased. Such notice shall be accompanied by
payment in full of the purchase price, either by certified or bank check.
The Committee may, in its sole discretion, authorize payment in whole or in
part of the purchase price to be made in unrestricted stock already owned
by the optionee, or, in the case of a nonqualified stock option, in
restricted stock, or deferred stock subject to an AWARD hereunder (based
upon the Fair Market Value of the Stock on the date the option is exercised
as determined by the Committee). The Committee may authorize such payment
at or after grant, except that in the case of an incentive stock option,
any right to make payment in unrestricted stock already owned must be
included in the option at the time of grant. No shares of Stock shall be
issued until full payment therefor has been made. Subject to paragraph (j)
of this SectionE5, an optionee shall have the rights to dividends or other
rights of a shareholder with respect to shares subject to the option when
the optionee has given written notice of exercise, has paid in full for
such shares, and, if requested, has given the representation described in
paragraph (a) of Section 12.
(e) NONTRANSFERABILITY OF OPTIONS. No stock option shall be
transferable by the optionee otherwise than by will or by the laws of
descent and distribution, and such options shall be exercisable, during the
optionee's lifetime, only by the optionee.
(f) TERMINATION BY DEATH. Except to the extent otherwise provided by
the Committee at or after the time of grant, if an optionee's employment by
the Corporation and/or any of its subsidiaries terminates by reason of
death, the stock option may thereafter be exercised, to the extent such
stock option was exercisable at the time of the death of the optionee, by
the legal representative of the estate or by the legatee of the optionee
under the will of the optionee, for a period of six months from the date of
such death, unless earlier terminated pursuant to its terms.
(g) TERMINATION BY REASON OF RETIREMENT OR PERMANENT DISABILITY.
Except to the extent otherwise provided by the Committee at or after the
time of grant, if an optionee's employment by the Corporation and/or any of
its subsidiaries terminates by reason of retirement or permanent
disability, any stock option held by such optionee may thereafter be
exercised, to the extent such stock option was exercisable at the time of
the death of the optionee, unless earlier terminated pursuant to its terms,
but may not be exercised after six months from the date of such termination
of employment; provided, however, that if the optionee dies within such six-
month period, any unexercised stock option held by such optionee shall
thereafter be exercisable to the extent to which it was exercisable at the
time of death for a period of six months from the date of the optionee's
death, unless earlier terminated pursuant to its term. In the event of
termination of service by reason of retirement or permanent disability, if
an incentive stock option is exercised after the expiration of the exercise
periods that apply for purposes of Section 422 of the Code, the option will
thereafter be treated as a nonqualified stock option.
(h) OTHER TERMINATION. Unless otherwise determined by the Committee
at or after grant, if an optionee's employment terminates for any reason
other than death, permanent disability, or retirement, any stock options
held by the optionee may be exercised by the optionee until 30 days after
such termination to the extent such stock options were exercisable at the
time of such termination, unless earlier terminated pursuant to its term.
(i) OPTION BUYOUT. The Committee may at any time offer to repurchase
an option (other than an option which has been held for less than six
months by an optionee who is subject to Section 16 of the Exchange Act)
based on such terms and conditions as the Committee shall establish and
communicate to the optionee at the time that such offer is made; provided,
however, if applicable, the repurchase price must be "reasonable" as
determined in accordance with Rule 260.140.41(k) of the California Code of
Regulation, Title 10., Ch.3.
(j) FORM OF SETTLEMENT. In its sole discretion, the Committee may
provide, at the time of grant, that the shares to be issued upon an
option's exercise shall be in the form of restricted stock or deferred
stock, or may reserve other than with respect to incentive stock options
the right to so provide after the time of grant.
SECTION 6. STOCK APPRECIATION RIGHTS.
(a) GRANT AND EXERCISE. Stock appreciation rights may be
granted in conjunction with (or, in accordance with Section 9, separate
from) all or part of any stock option granted under the Plan, as follows:
(i)Ein the case of a nonqualified stock option, such rights may be granted
either at the time of the grant of such option or at any subsequent time
during the term of the option; and (ii) in the case of an incentive stock
option, such rights may be granted only at the time of the grant of the
option. A "stock appreciation right" is a right to receive cash or Stock,
as provided in this Section 6, in lieu of the purchase of a share under a
related option. A stock appreciation right or applicable portion thereof
shall terminate and no longer be exercisable upon the termination or
exercise of the related stock option, except that a stock appreciation
right granted with respect to less than the full number of shares covered
by a related stock option shall not be reduced until the exercise or
termination of the related stock option exceeds the number of shares not
covered by the stock appreciation right. A stock appreciation right may be
exercised by an optionee, in accordance with paragraph (b) of this Section
6, by surrendering the applicable portion of the related stock option.
Upon such exercise and surrender, the optionee shall be entitled to receive
an amount determined in the manner prescribed in paragraph (b) of this
Section 6. Options which have been so surrendered, in whole or in part,
shall no longer be exercisable to the extent the related stock appreciation
rights have been exercised.
(b) TERMS AND CONDITIONS. Stock appreciation rights shall be
subject to such terms and conditions, not inconsistent with the provisions
of the Plan, as shall be determined from time to time by the Committee,
including the following:
(i) Stock appreciation rights shall be exercisable only at such
time or times and to the extent that the stock options to which they
relate shall be exercisable in accordance with the provisions of
Section 5 and this SectionE6 of the Plan; provided, however, that any
such appreciation right granted subsequent to the grant of the related
stock option shall not be exercisable during the first six months of
its term by an optionee who is subject to Section 16 of the Exchange
Act, except that this limitation shall not apply in the event of death
or permanent disability of the optionee prior to the expiration of the
six month period.
(ii) Upon the exercise of a stock appreciation right, an
optionee shall be entitled to receive up to, but no more than, an
amount in cash or whole shares of the Stock as determined by the
Committee in its sole discretion equal to the excess of the Fair
Market Value of one share of Stock over the option price per share
specified in the related stock option multiplied by the number of
shares in respect of which the stock appreciation right shall have
been exercised. Each stock appreciation right may be exercised only
at the time and so long as a related option, if any, would be
exercisable or as otherwise permitted by applicable law; provided,
however, that no stock appreciation right granted under the Plan to a
person then subject to Section 16 of the Exchange Act shall be
exercised during the first six months of its term for cash.
(iii) No stock appreciation right shall be transferable by a
participant otherwise than by will or by the laws of descent and
distribution, and stock appreciation rights shall be exercisable,
during the participant's lifetime, only by the participant.
(iv) Upon the exercise of a stock appreciation right, the Stock
option or part thereof to which such stock appreciation right is
related shall be deemed to have been exercised for the purpose of the
limitation of the number of shares of the Stock to be issued under the
Plan, as set forth in Section 3 of the Plan.
(v) Stock appreciation rights granted in connection with the
incentive stock options may be exercised only when the market price of
the Stock subject to the incentive stock option exceeds the option
price of the incentive stock option.
SECTION 7. RESTRICTED STOCK.
(a) STOCK AND ADMINISTRATION. Shares of restricted stock may be
issued either alone or in addition to stock options, stock appreciation
rights, deferred stock or other Stock-based awards granted under the Plan.
The Committee shall determine the officers and key employees of the
Corporation and its subsidiaries to whom, and the time or times at which,
grants of restricted stock will be made, the number of shares to be
awarded, the time or times within which such awards may be subject to
forfeiture, and all other conditions of the awards. The provisions of
restricted stock awards need not be the same with respect to each
recipient.
(b) AWARDS AND CERTIFICATES. The prospective recipient of an
award of shares of restricted stock shall not, with respect to such award,
be deemed to have become a participant, or to have any rights with respect
to such award, until and unless such recipient shall have executed an
agreement or other instrument evidencing the award and delivered a fully
executed copy thereof to the Corporation, and otherwise complied with the
then applicable terms and conditions.
(i) Each participant shall be issued a stock certificate in
respect of shares of restricted stock awarded under the Plan. Such
certificate shall be registered in the name of the participant, and
shall bear an appropriate legend referring to the terms, conditions,
and restrictions applicable to such award, substantially in the
following form:
"The transferability of this certificate and the shares
of stock represented hereby are subject to the terms and
conditions (including forfeiture) of the Activision, Inc.
1991 Stock Option and Stock Award Plan and an Agreement
entered into between the registered owner and Activision,
Inc. Copies of such Plan and Agreement are on file in the
offices of Activision, Inc., 11601 Wilshire Boulevard, Suite
1000, Los Angeles, California 90025."
(ii) The Committee shall require that the stock certificates
evidencing such shares be held in custody by the Corporation until the
restrictions thereon shall have lapsed, and shall require, as a
condition of any restricted stock award, that the participant shall
have delivered a stock power, endorsed in blank, relating to the Stock
covered by such award.
(c) RESTRICTIONS AND CONDITIONS. The shares of restricted stock
awarded pursuant to the Plan shall be subject to the following restrictions
and conditions:
(i) Subject to the provisions of this Plan, during a period
set by the Committee commencing with the date of such award (the
"restriction period"), the participant shall not be permitted to
sell, transfer, pledge, or assign shares of restricted stock
awarded under the Plan. Within these limits the Committee may
provide for the lapse of such restrictions in installments where
deemed appropriate.
(ii) Except as provided in paragraph (c) of this Section 7,
the participant shall have, with respect to the shares of
restricted stock, all of the rights of a shareholder of the
Corporation, including the right to receive any cash dividends.
The Committee, in its sole discretion, may permit or require the
payment of cash dividends to be deferred and, if the Committee so
determines, reinvested in additional restricted stock or
otherwise reinvested. Certificates for shares of unrestricted
stock shall be delivered to the participant promptly after, and
only after, the period of forfeiture shall expire without
forfeiture in respect of such shares of restricted stock.
(iii) Subject to the provisions of paragraph (c)(iv) of
this SectionE7, upon termination of employment for any reason
during the restriction period, all shares still subject to
restriction shall be forfeited by the participant and reacquired
by the Corporation.
(iv) In the event of a participant's retirement, permanent
disability, or death, or in cases of special circumstances, the
Committee may, in its sole discretion, when it finds that a
waiver would be in the best interests of the Corporation, waive
in whole or in part any or all remaining restrictions with
respect to such participant's shares of restricted stock.
SECTION 8. DEFERRED STOCK AWARDS.
(a) STOCK AND ADMINISTRATION. Awards of the right to receive
Stock that is not to be distributed to the participant until after a
specified deferral period (such AWARD and the deferred stock delivered
thereunder hereinafter as the context shall require, the "deferred stock")
may be made either alone or in addition to stock options, stock
appreciation rights, or restricted stock, or other Stock-based awards
granted under the Plan. The Committee shall determine the officers and key
employees of the Corporation and its subsidiaries to whom and the time or
times at which deferred stock shall be awarded, the number of shares of
deferred stock to be awarded to any participant, the duration of the period
(the "Deferral Period") during which, and the conditions under which,
receipt of the Stock will be deferred, and the terms and conditions of the
award in addition to those contained in paragraph (b) of this SectionE8.
In its sole discretion, the Committee may provide for a minimum payment at
the end of the applicable Deferral Period based on a stated percentage of
the Fair Market Value on the date of grant of the number of shares covered
by a deferred stock award. The Committee may also provide for the grant of
deferred stock upon the completion of a specified performance period. The
provisions of deferred stock awards need not be the same with respect to
each recipient.
(b) TERMS AND CONDITIONS. Deferred stock awards made pursuant
to this Section 8 shall be subject to the following terms and conditions:
(i) Subject to the provisions of the Plan, the shares to be
issued pursuant to a deferred stock award may not be sold,
assigned, transferred, pledged or otherwise encumbered during the
Deferral Period or Elective Deferral Period (defined below),
where applicable, and may be subject to a risk of forfeiture
during all or such portion of the Deferral Period as shall be
specified by the Committee. At the expiration of the Deferral
Period and Elective Deferral Period, share certificates shall be
delivered to the participant, or the participant's legal
representative, in a number equal to the number of shares covered
by the deferred stock award.
(ii) Amounts equal to any dividends declared during the
Deferral Period with respect to the number of shares covered by a
deferred stock award will be paid to the participant currently,
or deferred and deemed to be reinvested in additional deferred
stock or otherwise reinvested, as determined at the time of the
award by the Committee, in its sole discretion.
(iii) Subject to the provisions of paragraph (b)(iv) of
this Section 8, upon termination of employment for any reason
during the Deferral Period for a given award, the deferred stock
in question shall be forfeited by the participant.
(iv) In the event of the participant's retirement,
permanent disability or death during the Deferral Period (or
Elective Deferral Period, where applicable), or in cases of
special circumstances, the Committee may, in its sole discretion,
when it finds that a waiver would be in the best interests of the
Corporation, waive in whole or in part any or all of the
remaining deferral limitations imposed hereunder with respect to
any or all of the participant's deferred stock.
(v) Prior to completion of the Deferral Period, a
participant may elect to further defer receipt of the award for a
specified period or until a specified event (the "Elective
Deferral Period"), subject in each case to the approval of the
Committee and under such terms as are determined by the
Committee, all in its sole discretion.
(vi) Each award shall be confirmed by a deferred stock
agreement or other instrument executed by the Corporation and the
participant.
SECTION 9. OTHER STOCK-BASED AWARDS.
(a) STOCK AND ADMINISTRATION. Other awards of the Stock and
other awards that are valued in whole or in part by reference to, or are
otherwise based on the Stock ("Other Stock-based awards"), including
(without limitation) performance shares and convertible debentures, may be
granted either alone or in addition to other AWARDS granted under the Plan.
Subject to the provisions of the Plan, the Committee shall have sole and
complete authority to determine the officers and key employees of the
Corporation and/or any of its subsidiaries to whom and the time or times at
which such other Stock-based awards shall be made, and the number of shares
of the Stock to be awarded pursuant to such other Stock-based awards. The
Committee may also provide for the grant of the Stock upon the completion
of a specified performance period. The provisions of other Stock-based
awards need not be the same with respect to each recipient.
(b) TERMS AND CONDITIONS. Other Stock-based awards made
pursuant to this SectionE9 shall be subject to the following terms and
conditions:
(i) Subject to the provisions of this Plan, shares or
interests in shares subject to AWARDS made under this SectionE9
may not be sold, assigned, transferred, pledged or otherwise
encumbered prior to the date on which the shares are issued, or,
if later, the date on which any applicable restriction,
performance or deferral period lapses.
(ii) Subject to the provisions of this Plan and the award
agreement, the recipient of AWARDS under this Section 9 shall be
entitled to receive, currently or on a deferred basis, interest
or dividends or interest or dividend equivalents with respect to
the number of shares or interests therein covered by the AWARDS,
as determined at the time of the AWARDS by the Committee, in its
sole discretion, and the Committee may provide that such amounts
(if any) shall be deemed to have been reinvested in additional
Stock or otherwise reinvested.
(iii) Any AWARDS under this SectionE9 and any Stock covered
by any such award may be forfeited to the extent so provided in
the award agreement, as determined by the Committee, in its sole
discretion.
(iv) In the event of the participant's retirement,
permanent disability or death, or in cases of special
circumstances, the Committee may, in its sole discretion, when it
finds that a waiver would be in the best interests of the
Corporation, waive in whole or in part any or all of the
remaining limitations imposed hereunder (if any) with respect to
any or all AWARDS under this SectionE9.
(v) Each AWARD under this SectionE9 shall be confirmed by
an agreement or other instrument executed by the Corporation and
by the participant.
(vi) The Stock or interests therein (including securities
convertible into the Stock) paid or awarded on a bonus basis
under this SectionE9 shall be issued for no cash consideration;
the Stock or interests therein (including securities convertible
into the Stock) purchased pursuant to a purchase right awarded
under this Section 9 shall be priced at least (50%) of the Fair
Market Value of the Stock on the date of grant.
(vii) No other Stock-based award in the nature of a
purchase right shall be transferable by the participant otherwise
than by will or by the laws of descent and distribution, and such
purchase rights shall be exercisable during the participant's
lifetime only by the participant.
SECTION 10. AMENDMENTS AND TERMINATION. The Board may amend, alter,
or discontinue the Plan, but no amendment, alteration, or discontinuation
shall be made which would impair the rights of an optionee or participant
under an AWARD theretofore granted, without the optionee's or participants'
consent, or which without the approval of the shareholders would:
(a) except as is provided in Section 3 of the Plan, increase the
total number of shares available for the purpose of the Plan.
(b) subsequent to the date of grant decrease the option price of
any stock option;
(c) extend the maximum option period under SectionE5(b) of the
Plan; and
(d) otherwise materially increase the benefits accruing to
participants under, or materially modify the requirements as to
eligibility for participation in, the Plan.
The Committee may amend the terms of any AWARD theretofore granted,
prospectively or retroactively, but no such amendment shall impair the
rights of any holder without such holder's consent. Notwithstanding the
foregoing, the Board or the Committee may, in its discretion, amend the
Plan or terms of any outstanding AWARD held by a person then subject to
SectionE16 of the Exchange Act without the consent of any holder in order
to preserve exemptions under said Section 16 which are or become available
from time to time under rules of the Securities and Exchange Commission.
SECTION 11. UNFUNDED STATUS OF THE PLAN. The Plan is intended to
constitute an "unfunded" plan for incentive and deferred compensation.
With respect to any payments not yet made to a participant or optionee by
the Corporation, nothing contained herein shall give any such participant
or optionee any rights that are greater than those of a general creditor of
the Corporation. In its sole discretion, the Committee may authorize the
creation of trusts or other arrangements to meet the obligations created
under the Plan to deliver the Stock or payments in lieu of or with respect
to AWARDS hereunder; provided, however, that the existence of such trusts
or other arrangements is consistent with the unfunded status of the Plan.
SECTION 12. GENERAL PROVISIONS.
(a) The Committee may require each participant purchasing shares
pursuant to an AWARD under the Plan to represent to and agree with the
Corporation in writing that such participant is acquiring the shares
without a view to distribution thereof. The certificates for such shares
may include any legend which the Committee deems appropriate to reflect any
restrictions on transfer.
(b) All certificates for shares of Stock delivered under the
Plan pursuant to any AWARD shall be subject to such stock-transfer orders
and other restrictions as the Committee may deem advisable under the rules,
regulations, and other restrictions as the Committee may deem advisable
under the rules, regulations and requirements of the Securities and
Exchange Commission, any stock exchange upon which the Stock is then
listed, and any applicable Federal or state securities law, and the
Committee may cause a legend or legends to be put on any such certificates
to make appropriate reference to such restrictions.
(c) Recipients of shares of restricted stock, deferred stock and
other Stock-based awards under the Plan (other than options) shall not be
required to make any payment or provide consideration other than the
rendering of services.
(d) AWARDS granted under the Plan may, in the discretion of the
Committee, be granted either alone or in addition to, in tandem with, or in
substitution for, any other AWARDS granted under the Plan. If AWARDS are
granted in substitution for other AWARDS, the Committee shall require the
surrender of such other AWARDS in consideration for the grant of the new
AWARDS. AWARDS granted in addition to or in tandem with other AWARDS may
be granted either at the same time as or at a different time from the grant
of such other AWARDS. The exercise price of any option or the purchase
price of any other Stock-based award in the nature of a purchase right:
(i) granted in substitution for outstanding AWARDS or in
lieu of any other right to payment by the Corporation shall be
the fair market value of shares at the date such substitute
AWARDS are granted or shall be such Fair Market Value at that
date reduced to reflect the Fair Market Value of the AWARDS or
other right to payment required to be surrendered by the
participant as a condition to receipt of the substitute AWARD; or
(ii) retroactively granted in tandem with outstanding
AWARDS shall be either the Fair Market Value of shares at the
date of grant of later AWARDS of the Fair Market Value of shares
at the date of grant of earlier AWARDS.
(e) Nothing contained in this Plan shall prevent the Board of
Directors from adopting other or additional compensation arrangements,
subject to shareholder approval if such approval is required; and such
arrangements may be either generally applicable or applicable only in
specific cases.
(f) Nothing in the Plan shall confer upon any employee the right
to continue in the employment of the Corporation or any of its subsidiaries
or affect any right that the Corporation or any of its subsidiaries may
have to terminate the employment (or to demote or to exclude from future
AWARDS under the Plan) to any such employee.
(g) A participant shall have no right as a shareholder until he
or she becomes the holder of record.
(h) The Company will provide to its shareholders, at least
annually, reports containing financial statements and management's
discussion and analysis of financial conditions and results of operations.
SECTION 13. TAXES.
(a) If any participant properly elects, within 30 days of the
date on which an AWARD is granted, to include in gross income for Federal
income tax purposes an amount equal to the Fair Market Value (on the date
of grant of the AWARD) of the Stock subject to the AWARD, such participant
shall make arrangements satisfactory to the Committee to pay to the
Corporation, in the calendar quarter of such AWARD, any Federal, state or
local taxes required to be withheld with respect to such shares. If such
employee shall fail to make such tax payments as are required, the
Corporation and its subsidiaries shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind
otherwise due to the participant.
(b) Any participant who does not or cannot make the election
described in paragraph (a) of this SectionE13 with respect to an AWARD,
shall, no later than the date as of which the value of the AWARD first
becomes includible in the gross income of the participant for Federal
income tax purposes, pay to the Corporation, or make arrangements
satisfactory to the Committee regarding payment of, any Federal, state, or
local taxes of any kind required by law to be withheld with respect to the
Stock subject to such AWARD and the Corporation and its subsidiaries shall,
to the extent permitted by law, have the right to deduct any such taxes
from any payment of any kind otherwise due to the participant. Anything
contained herein to the contrary notwithstanding, the Committee may, in its
sole discretion, authorize acceptance of Stock received in connection with
the AWARD or option being taxed or otherwise previously acquired in
satisfaction of withholding requirements.
(c) If and to the extent authorized by the Committee, the
Corporation or any of its subsidiaries are authorized to withhold from any
distribution of stock relating to any AWARD granted under the plan, or to
receive shares from the participant, and to pay the value of such stock to
the appropriate taxing authority, in order to satisfy obligations of the
participant for the payment of Federal, state and local taxes in connection
with such AWARD (including but not necessarily limited to amounts required
to be withheld by the Corporation).
SECTIONE14. EFFECTIVE DATE OF THE PLAN. The Plan shall be effective
on the date it is approved by the Board of Directors, but its continuance
shall be subject to the approval, obtained in accordance with Rule 16b-3(b)
of the Securities and Exchange Act of 1934, as amended, of the holders of a
majority of all outstanding shares of Common Stock within twelve months
after the date the Plan is adopted by the Board. Any stock option granted
hereunder and exercised by the optionee before shareholder approval is
obtained must be rescinded if shareholder approval is not obtained within
twelve months after the Plan is adopted by the Board. The shares of Common
Stock relating to such stock option shall not be counted in determining
whether shareholder approval is obtained.
SECTION 15. GOVERNING LAW. The validity, construction and effect of
the Plan and any action taken or relating to the Plan shall be determined
in accordance with the laws of the state of California and applicable
Federal law.
SECTION 16. TERM OF THE PLAN. No AWARDS shall be granted pursuant to
the Plan after the tenth anniversary of the earlier of either the date the
Plan is adopted by the Board or the date the Plan is approved by the
shareholders of the Corporation as provided for in Section 14 above, but
AWARDS theretofore granted may extend beyond that date.
STOCK OPTION CERTIFICATE
(Non-Transferable)
For _______ Shares
Issued Pursuant to the
1991 Stock Option and Stock Award Plan of
ACTIVISION, INC.
THIS CERTIFIES that on ___________, ____ ("issuance date")
_____________ (the "Holder") was granted an option (the "Option") to
purchase, at the option price of $_____ per share, all or any part of
_______ fully paid and non-assessable shares ("Shares") of the Common Stock
(no par value) of ACTIVISION, INC., a Delaware corporation (the "Company"),
upon and subject to the following terms and conditions:
1. Terms of the Plan. The Option is granted pursuant to, and is
subject to the terms and conditions of, the 1991 Stock Option and Stock
Award Plan of the Company (the"Plan"), the terms, conditions and
definitions of which are hereby incorporated herein as though set forth at
length, and the receipt of a copy of which the Holder hereby acknowledges
by his signature below. Capitalized terms used herein shall have the
meanings set forth in the Plan, unless otherwise defined herein.
2. Expiration. This Option shall expire ___________, ____
("expiration date"), unless earlier terminated in accordance with the terms
of the Plan in the event of the death, retirement, disability, or
termination of employment of the Holder.
3. Exercise. This Option may be exercised or surrendered during the
Holder's lifetime only by the Holder. THIS OPTION SHALL NOT BE
TRANSFERABLE BY THE HOLDER OTHERWISE THAN BY WILL OR BY THE LAWS OF DESCENT
AND DISTRIBUTION.
This Option shall vest and be exercisable as follows:
________________________.
Payment for the Shares purchased pursuant to the exercise of this
Option shall be made in full at the time of the exercise of the Option by
one or more of the following methods: (i) in cash or by check payable to
the order of the Company for the full exercise price, or (ii) by delivery
of Shares having a fair market value (determined in accordance with the
Plan as of the date the Option is exercised) equal to all or part of the
exercise price and, if applicable, cash or a check payable to the order of
the Company for any remaining portion of the purchase price.
4. Delivery of Share Certificates. Within a reasonable time after
the exercise of the Option, the Company shall cause to be delivered to the
person entitled thereto a certificate for the Shares purchased pursuant to
the exercise of the Option. If the Option shall have been exercised with
respect to less than all of the Shares subject to the Option, the Company
shall also cause to be delivered to the person entitled thereto a new
Option Certificate in replacement of this Option Certificate if surrendered
at the time of the exercise of the Option, indicating the number of Share
with respect to which this Option remains available for exercise, or this
Option Certificate shall be endorsed to give effect to the partial exercise
of the Option.
5. Withholding. In the event that the Holder elects to exercise this
Option or any part thereof, and if the Company or any subsidiary of the
Company shall be required to withhold any amounts by reason of any federal,
state or local tax rules or regulations in respect of the issuance of
Shares to the Holder pursuant to the Option, the Company or such subsidiary
shall be entitled to deduct and withhold such amounts from any payments to
be made to the Holder. In any event, the Holder shall make available to
the Company or such subsidiary, promptly when requested by the Company or
such subsidiary, sufficient funds to meet the requirements of such
withholding; and the Company or such subsidiary shall be entitled to take
and authorize such steps as it may deem advisable in order to have such
funds available to the Company or such subsidiary out of any funds or
property due or to become due to the Holder.
6. Reservation of Shares. The Company hereby agrees that at all
times there shall be reserved for issuance and/or delivery upon exercise of
the Option such number of Shares as shall be required for issuance or
delivery upon exercise hereof.
7. Adjustments. The number of Shares subject to this Option, and the
exercise price, shall be subject to adjustment in accordance with Section 3
of the Plan.
8. Rights of Holder. Nothing contained herein shall be construed to
confer upon the Holder any right to be continued in the employ of the
Company and/or any subsidiary of the Company or derogate from any right of
the Company an/or a subsidiary to retire, request the resignation of, or
discharge the Holder at any time, with or without cause. The Holder shall
not, by virtue hereof, be entitled to any rights of a shareholder in the
Company, either at law or equity, and the rights of the Holder are limited
to those expressed herein and in the Plan and are not enforceable against
the Company except to the extent set forth herein.
9. Exclusion from Pension Computations. By acceptance of the grant
of this Option, the Holder hereby agrees that any income realized upon the
receipt or exercise hereof, or upon the disposition of the Shares received
upon its exercise, is special incentive compensation and shall not be taken
into account as"wages," "salary" or "compensation" in determining the
amount of any payment under any pension, retirement, incentive, profit
sharing, bonus or deferred compensation plan of the Company or any of its
subsidiaries or parents.
10. Registration; Legend. The Company may postpone the issuance and
delivery of Shares upon any exercise of the Option until (a) the admission
of such Shares to listing on any stock exchange or exchanges on which
Shares of the Company of the same class are then listed and (b) the
completion of such registration or other qualification of such Shares under
any state or federal law, rule or regulation as the Company shall determine
to be necessary or advisable. The Holder shall make such representations
and furnish such information as may, in the opinion of counsel for the
Company, be appropriate to permit the Company, in the light of the then
existence or non-existence with respect to such Shares of an effective
Registration Statement under the Act, to issue the shares in compliance
with the provisions of that or any comparable act.
The Company may cause the following legend to be set forth on each
certificate representing Shares or any other security issued or issuable
upon exercise of the Option unless counsel for the Company is of the
opinion as to any such certificate that such legend is unnecessary:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT, THE
AVAILABILITY OF WHICH IS ESTABLISHED BY AN OPINION FROM
COUNSEL TO THE COMPANY.
11. Amendment. The Board of Directors or the Committee may, with the
consent of the Holder, at any time or from time to time amend the terms and
conditions of the Option, and may at any time or from time to time amend
the terms of this Option in accordance with the Plan.
12. Notices. Any notice which either party hereto may be required or
permitted to give to the other shall be in writing, and may be delivered
personally or by mail, postage prepaid, addressed as follows: to the
Company, at its office at 11601 Wilshire Boulevard, Suite 1000, Los
Angeles, California 90025, or at such other address as the Company by
notice to the Holder may designate in writing from time to time; to the
Holder, at the address shown below his signature on this Option
Certificate, or at such other address as the Holder by notice to the
Company may designate in writing from time to time. Notices shall be
effective upon receipt.
13. Interpretation. A determination of the Committee as to any
questions which may arise with respect to the interpretation of the
provisions of this Option and of the Plan shall be final and binding. The
Committee may authorize and establish such rules, regulations and revisions
thereof not inconsistent with the provisions of the Plan, as it may deem
advisable.
14. Shareholder Approval. The grant and exercise of this Option is
conditioned upon the approval of the Plan by the holders of a majority of
the stock of the Company, in accordance with Section 14 of the Plan, on or
before November 25, 1992. In the event the Plan is not approved by the
shareholders of the Company as aforesaid, the Option will be void and of no
force and effect.
IN WITNESS WHEREOF, the parties have executed this Option Certificate
as of the date set forth below.
ACTIVISION, INC.
By:
Dated:
Attest:
ACCEPTED:
Option Holder
Address
City State Zip Code
EXHIBIT 5.1
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN LLP
1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104
(212) 541-2000
December 6, 1995
Activision, Inc.
11601 Wilshire Boulevard
Suite 1000
Los Angeles, California 90025
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by Activision, Inc., a Delaware corporation (the
"Company"), on or about the date hereof with the Securities and Exchange
Commission (the "Commission") in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of an additional
2,000,000 shares of the Company's common stock, $.000001 par value per share
(the "Common Stock"), reserved for issuance pursuant to the terms of the
Company's 1991 Stock Option and Stock Award Plan, as amended (the "Plan").
We are familiar with the Restated Certificate of Incorporation, as
amended, and the By-laws of the Company and have examined copies of the Plan,
the resolutions adopted by the Company's Board of Directors and actions by the
Company's stockholders pertaining to the Plan, and originals or copies,
certified or otherwise identified to our satisfaction, of such other documents,
evidence of corporate action, certificates and other instruments, and have made
such other investigations of law and fact, as we have deemed necessary or
appropriate for the purposes of this opinion.
Based upon the foregoing, it is our opinion that the additional
2,000,000 shares of Common Stock reserved for issuance pursuant to the terms of
the Plan have been duly authorized and, when issued in accordance with the
terms of the Plan and upon payment of the purchase price therefor, will be
validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion in the Registration
Statement. In giving this consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
ROBINSON SILVERMAN PEARCE
ARONSOHN & BERMAN LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Activision, Inc. on Form S-8 of our report dated May 24, 1995, on our audits of
the financial statement and the financial statement schedules of Activision,
Inc. and Subsidiaries as of March 31, 1995 and 1994 and for the three years in
the period ended March 31, 1995, which report is included in the Annual Report
of Activision, Inc. on Form 10-K.
COOPERS & LYBRAND L.L.P.
Los Angeles, California
December 5, 1995