As filed with the Securities and Exchange Commission on June [ ], 2003.
Registration No. 333-101271
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 3 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)
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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)
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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 JUNE [ ], 2003
165,584 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 June 19, 2003, the closing sale price of our common stock as reported
by Nasdaq was $12.67 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..............................................................12
USE OF PROCEEDS..............................................................13
SELLING STOCKHOLDERS.........................................................14
DESCRIPTION OF CAPITAL STOCK.................................................15
PLAN OF DISTRIBUTION.........................................................16
LEGAL MATTERS................................................................16
EXPERTS......................................................................16
WHERE YOU CAN FIND MORE INFORMATION..........................................17
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..............................17
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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.
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-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, 2003. 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."
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 is derived from products based on a
relatively small number of popular brands each year, and these products are
responsible for a disproportionate amount of our profits. In addition, many of
these products have substantial production or acquisition costs and marketing
budgets. In fiscal 2003, 38% of our consolidated net revenues (52% of worldwide
publishing net revenues) was derived from two brands, one of which accounted for
20% and the other of which accounted for 18% of consolidated net revenues (27%
and 25%, respectively, of worldwide publishing net revenues). In fiscal 2002,
two brands accounted for 35% of our consolidated net revenues (50% of worldwide
publishing net revenues), one of which accounted for 31% and the other of which
accounted for 4% of consolidated net revenues (44% and 6%, respectively, of
worldwide publishing 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 to
achieve anticipated results by one or more products based on these brands 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.
Additionally, the failure of intellectual property acquired by us to be
popularly received could impact the market acceptance of our products in which
the intellectual property is included. Such lack of market acceptance could
result in the write-off of the unrecovered portion of acquired intellectual
property assets, which could cause material harm to 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 PS2 console
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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 GameCube console system
in North America in November 2001 and in Europe in May 2002. Additionally, in
June 2001, Nintendo launched its GBA hand-held device. Most recently, Sony
announced that it would be entering the hand-held hardware market with the
introduction of its hand-held gaming device, PlayStation Portable ("PSP"). PSP
is currently expected to be released in the fourth quarter of calendar 2004. We
estimate that the next hardware transition cycle will commence in late calendar
2005 or calendar 2006. Delays in the launch, shortages, technical problems or
lack of consumer acceptance of these platforms and next generation 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.
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. If a hardware platform is released
unexpectedly close to the holidays, this would result in a shortened holiday
buying season and could negatively impact the sales of our products. 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.
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We depend on Sony, Nintendo and Microsoft for the manufacture 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 or their approved
replicator. We pay a licensing fee to the hardware manufacturer for each copy of
a product manufactured for that manufacturer's game platform.
The agreements with these manufacturers include certain provisions such as
approval rights over all products and related promotional materials and the
ability to change the fee they charge for the manufacturing of products, that
allow them substantial influence over our costs and the release schedule of our
products. In addition, 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.
Accordingly, Sony, Nintendo or Microsoft could cause unanticipated delays in the
release of our products as well increases to our development, manufacturing,
marketing or distribution costs, which could materially harm our business and
financial results.
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. Despite
extensive testing prior to release, we cannot be certain that errors will not be
found in new products or releases after shipment, that could result 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. Although 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. Moreover, 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 be
certain 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
5
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. Our products often utilize complex, cutting edge technology
that may become subject to 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.
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 the effected 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 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 the
recognition they receive in connection with their work, may cause
developers who worked for us in the past either to 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 continue to engage such developers' services for our products, except
for those that they are contractually obligated to complete for us.
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. Typically, we pay developers a
royalty based on a percentage of net revenue, less agreed upon deductions, but
in a few cases, we have agreed 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.
6
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 spend more money and time on developing and testing
products, 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 and
playability; 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.
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: Atari, Inc.; Capcom Co.
Ltd.; Eidos PLC; Electronic Arts Inc.; Konami Company Ltd.; Namco Ltd.; Sega
Enterprises, Ltd.; Take-Two Interactive Software, Inc.; THQ Inc.; Ubi Soft
Entertainment 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 those
products expected to be best sellers. We cannot be certain 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 be certain 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.
In the United States and Canada, we primarily sell our products on a direct
basis to mass-market retailers, consumer electronics stores, discount warehouses
and office super-stores. Our products are sold internationally on a direct-to-
retail basis, through third-party distribution and licensing arrangements and
through our wholly-owned European distribution subsidiaries. Our sales are made
primarily on a purchase order basis without long-term agreements or other forms
of commitments. Our largest customer, Wal-Mart, accounted for approximately 16%
7
and 14% of our consolidated net revenues for fiscal 2003 and 2002, respectively.
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.
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 distributors
and retailers to return defective, shelf-worn and damaged products in accordance
with terms granted. Price protection, when granted and applicable, allows
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
substantial 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.
Limitations on the use of cookies to collect information may reduce our ability
to develop online profiles and aggregate Internet user information.
Our technology currently uses "cookies," or small files of information
placed on a user's computer, to collect information about an Internet user's
visits to various web sites. This collection of behavioral information can be
accomplished without the user's knowledge or consent. Most currently available
Internet browsers allow users to modify their browser settings to prevent
cookies from being stored on their computer without their knowledge. Users can
also delete cookies from their computer at any time, and widely-available
software allows Internet users to sweep all cookies from their computers. We are
not aware of any reliable method to ascertain whether Internet users are
deleting their cookie files. If a large number of Internet users refuse, disable
or delete their cookie files, the number of profiles to which we have access
would decrease, the collection of our statistics based on cookies would be
impaired and the value of our services based on these profiles and statistics
would decrease.
Some privacy advocates and governmental officials have suggested
restricting or eliminating the use of cookies without the Internet user's
consent. If we were required to obtain consent before delivering a cookie or if
the use or effectiveness of cookies is limited, we would be required to switch
to alternative technologies to collect user profile information. Alternative
technologies may be unavailable or substantially less effective than cookies.
Creating replacement technology for cookies could require us to expend
significant time and resources. We may be unable to complete this alternative
technology development in time to avoid negative consequences to our business,
and the replacement methods we develop may not be commercially feasible.
8
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,
as in the case with most of our customers, 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, although 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 countries, Germany and the United Kingdom, respectively, and via export,
in other European countries 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. Although 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, Nintendo and
Microsoft products accounted for approximately 32%, 7% and 5%, respectively, of
our worldwide net distribution revenues for fiscal 2003.
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 50%, 49% and 43%
of our total net revenues in fiscal 2003, 2002 and 2001, 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 that are made in local currencies may fluctuate. We have and may
continue to 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
9
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. Although 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.
In prior fiscal 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. However, it is possible that similar, additional lawsuits
may be filed in the future. Although our general liability insurance carrier has
agreed to defend us in such lawsuits, it is uncertain whether the insurance
carrier would cover all or any amounts which we might be liable for if such
future lawsuits are not decided in our favor. If such future lawsuits are filed
and 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. 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.
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. Although we continue to search 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 one one-hundredth (1/100) 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
10
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 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 reported financial results could be affected if significant changes in
current accounting principles are adopted.
Recent actions and public comments from the Securities and Exchange
Commission have focused on the integrity of financial reporting generally.
Similarly, Congress has considered a variety of bills that could affect certain
accounting principles. The Financial Accounting Standards Board and other
regulatory accounting agencies have recently introduced several new or proposed
accounting standards, such as accounting for stock options, some of which
represent a significant change from current practices. Changes in our accounting
for stock options could materially increase our reported expenses.
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 many 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 and in the economy
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
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 seek to manage our business with a view to achieving long-term results, and
this could have a negative effect on short-term trading.
We focus on creation of shareholder value over time, and we intend to
make decisions that will be consistent with this long-term view. As a result,
11
some of our decisions, such as whether to make or discontinue investments,
manage our balance sheet and capital structure, or pursue or discontinue
strategic initiatives, may be in conflict with the objectives of short-term
traders. Further, our quarterly or other short-term results of operations could
be adversely affected.
We do not pay cash dividends on our common stock.
We have not paid any cash dividends on our common stock nor do we
anticipate paying cash 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 fiscal 2003 product portfolio
included such products as Tony Hawk's Pro Skater 4, Spider-Man: The Movie,
Tenchu: Wrath of Heaven and Street Hoops.
Our products cover game categories such as action/adventure, action sports,
racing, role-playing, simulation, first-person action and strategy. We currently
offer our products in versions that operate on systems such as the Sony
PlayStation 2 ("PS2"), Sony PlayStation ("PS1"), Nintendo GameCube ("GameCube"),
Microsoft Xbox ("Xbox"), Nintendo Game Boy Advance ("GBA") and the personal
computer ("PC"). Our target audiences range from game enthusiasts and children
to mass-market consumers and "value" buyers.
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. Our distribution business consists of 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 business
strategy, and the key components of our business operations that could impact
our business are detailed below.
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. We
also develop products designed for target audiences ranging from game
enthusiasts and children to mass-market consumers and "value" buyers. Presently,
we concentrate on developing, publishing and distributing products that operate
on PS2, GameCube and Xbox console systems, GBA hand-held device and the PC. 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 hardware base and increase unit sales.
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 then 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
12
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 Marvel Comics' properties including Spider-Man, X-MEN, Iron Man and Fantastic
Four and various Disney properties. We have additionally entered into exclusive
licensing agreements to develop and publish video games based on the
best-selling children's book series, Lemony Snicket's "A Series of Unfortunate
Events" which is being developed into a feature film, as well as for DreamWorks
SKG's Shrek 2 and three other upcoming computer-animated films, Sharkslayer,
Madagascar and Over the Hedge and their sequels. We have capitalized on the
success of our Tony Hawk's Pro Skater products to sign long-term agreements,
many of which are exclusive, with Tony Hawk and numerous other action sports
athletes. We also have created a limited number of new intellectual properties,
such as True Crime: Streets of L.A. and Call of Duty, that we believe have the
potential to join this list of franchise properties.
Execute Disciplined Product Selection and Development Processes. The
success of our publishing business depends, in significant part, on our ability
to develop high quality games that will generate high unit volume sales. 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 all of our products,
whether externally or internally developed. The Greenlight Process includes
in-depth reviews of each project at five important stages of development by a
team that includes many 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 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 are a capital investor. 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 selecting and using development resources in this
manner allows us to strengthen and leverage the particular expertise of our
internal and external development resources that we anticipate will add to the
quality of our products.
Continue to Improve Profitability. We continually strive to successfully
manage 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
discontinued before we incur additional development costs or, if necessary,
corrections are made in the development process. In addition, our focus on cross
platform releases and branded products will, we believe, contribute to this
strategic goal.
We continue to focus on increasing our margins. We have acquired certain
experienced and specialized developers in instances where we can enhance
profitability through the elimination of royalty obligations. Additionally, we
often rely on independent third-party interactive entertainment software
developers to develop some of our software products, thereby taking advantage of
specialized third-party developers without incurring the fixed overhead
obligations associated with increased internally employed staff.
Our sales and marketing operations work with our studio resources to
increase the visibility of new product launches and to coordinate the timing and
promotion of product releases. Our finance and administration and sales and
marketing personnel work together to improve inventory management and
receivables collections. We have broadly instituted objective-based reward
13
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 developers, intellectual
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 evaluate the
expansion of our resources through acquisitions, strategic relationships and key
license transactions. We intend to focus on expanding our intellectual property
library through key license transactions and strategic relationships with
intellectual property owners and to continue to evaluate opportunities to
increase our development capacity through the acquisition of or investment in
selected experienced development firms.
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 June
___, 2003, 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.
Number of Shares Number of Shares
of Common Stock Number of Shares of Common Stock
Name of Owned Prior to of Common Stock Owned After
Selling Stockholder the Offering Being Offered the Offering
------------------- ------------ ------------- ------------
Peter Morawiec 58,291 58,291(1) 0
Adrian J. Stephens 58,291 58,291(1) 0
Cary I. Hara 21,975 21,975(1) 0
Joby R. Otero 8,446 8,446(1) 0
Matthew Whiting 8,446 8,446(1) 0
Christopher Otcasek 3,378 3,378(1) 0
Jeffrey Lander 6,757 6,757(1) 0
14
All Selling Stockholders
as a Group 165,584 165,584 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 165,584 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
June 9, 2003, 87,869,928 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.
15
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 June
9, 2003, we had approximately 2,900 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
21,375 shares of our common stock.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K for the year ended March 31, 2003
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.
16
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, 2003;
o Our Current Report on Form 8-K filed on May 5, 2003; 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
17
================================================================================
165,584 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 ...................................... 10,000
Accounting Fees and Expenses.................................. 20,000
Miscellaneous................................................. 2,500
--------
TOTAL...................................................... $32,198
-----------------
* 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. ("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 PricewaterhouseCoopers LLP.
24.1 Power of attorney (included on signature page).*
-------------
*Previously filed.
**Previously filed. Confidential treatment has been granted with
respect to certain portions of this document.
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 a claim for indemnification against such liabilities (other than
II-4
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.
II-5
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. 3 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 June 25, 2003.
ACTIVISION, INC.
By: /s/ Ronald Doornink
----------------------------------------
Ronald Doornink, President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 3 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 June 25, 2003
------------------------- and Director
(Robert A. Kotick)
* Co-Chairman and Director June 25, 2003
-------------------------
(Brian G. Kelly)
President, Activision, Inc.; June 25, 2003
------------------------- Chief Executive Officer,
(Ronald Doornink) Activision Publishing, Inc.
(Principal Executive Officer);
and Director
* Executive Vice President and June 25, 2003
------------------------- Chief Financial Officer
(William J. Chardavoyne) Principal Financial
and Accounting Officer)
*
------------------------- Director June 25, 2003
(Kenneth L. Henderson)
* Director June 25, 2003
-------------------------
(Barbara S. Isgur)
* Director June 25, 2003
-------------------------
(Steven T. Mayer)
*
------------------------- Director June 25, 2003
(Robert J. Morgado)
*By: /s/ Ronald Doornink
-------------------------
Ronald Doornink
(Attorney-in-fact)
II-6
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 PricewaterhouseCoopers LLP.
24.1 Power of attorney (included on signature page).*
-------------
*Previously filed.
**Previously filed. Confidential treatment has been granted with respect to
certain portions of this document.