Exhibit 1.1
7,500,000 Shares
ACTIVISION, INC.
Common Stock
UNDERWRITING AGREEMENT
-------------------------------------
June 4, 2002
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Activision, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell 7,500,000 shares of its common stock, par value $.000001 per share (the
"Common Stock"), of the Company (the "Firm Securities") to Xxxxxxx, Sachs & Co.
(the "Underwriter"). The Company also proposes to grant to the Underwriter an
option to purchase up to an additional 750,000 shares of Common Stock to cover
over-allotments, if any (the "Option Securities"), and together with the Firm
Securities, the "Offered Securities"). The Company hereby agrees with the
Underwriter as follows:
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Underwriter that:
(a) A registration statement on Form S-3 (No. 333 74460), including a
form of prospectus, relating to the Offered Securities has been filed with
the Securities and Exchange Commission (the "Commission") and has been
declared effective. Either (i) an additional registration statement
relating to the Offered Securities has been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Securities Act of 1933,
as amended (the "Act"), and, if so filed, has become effective upon filing
pursuant to such Rule and the Offered Securities all have been duly
registered under the Act pursuant to the initial registration statement
and, if applicable, the additional registration statement, or (ii) such an
additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon filing
pursuant to such Rule and upon such filing the Offered Securities will all
have been duly registered under the Act pursuant to the initial
registration statement and such additional registration statement. For
purposes of the Agreement, the "Effective Date" means with respect to (i)
the initial registration statement the date and time as of which such
registration statement was declared effective by the Commission, (ii) the
additional registration statement, if filed prior to the execution and
delivery of this Agreement, the date and time as of which such registration
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statement was filed and became effective upon filing pursuant to Rule
462(b) or (iii) the additional registration statement, if it has not been
filed prior to the execution and delivery of this Agreement, the date and
time as of which such registration statement is filed and becomes effective
pursuant to Rule 462(b). The initial registration statement, as amended at
the time of this Agreement, including all material incorporated by
reference therein, including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Date of the additional
registration statement pursuant to the General Instructions of the Form on
which it is filed, is hereinafter referred to as the "Initial Registration
Statement." The additional registration statement, as amended at its
Effective Date, including the contents of the initial registration
statement incorporated by reference therein, is hereinafter referred to as
the "Additional Registration Statement." The Initial Registration Statement
and the Additional Registration Statement are hereinafter referred to
collectively as the "Registration Statements" and individually as a
"Registration Statement." The form of prospectus included in the
Registration Statement, as supplemented to reflect the terms of offering of
the Offered Securities, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("Rule 424(b)") under the Act, including all
material incorporated by reference therein, is hereinafter referred to as
the "Prospectus."
(b) (i) On the Effective Date of the Initial Registration Statement,
the Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the Commission
(the "Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) on
the Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all material respects
to the requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact and
did not omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
and (iii) on the date of this Agreement, the Initial Registration Statement
and, if the Effective Date of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the Additional
Registration Statement and the Prospectus each conform in all material
respects to the requirements of the Act and the Rules and Regulations, and
none of such documents includes any untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, except that the foregoing
does not apply to statements in or omissions from any of such documents
based upon written information furnished to the Company by the Underwriter
specifically for use therein.
(c) The documents incorporated or deemed to be incorporated by
reference in the Registration Statements and the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations"), and,
when read together with the other information in the Prospectus, at the
time the
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Prospectus was issued and at the Closing Date (as such term is defined
below) (and if any Option Securities are purchased, at the Option Closing
Date (as such term is defined below)), did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter
into and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, or business affairs of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse Effect").
(e) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1 02 of Regulation S X) (each a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly organized, incorporated or
formed and is validly existing as an entity in good standing under the laws
of the jurisdiction of its incorporation or other formation, has corporate,
partnership, limited liability company or other power and authority to own,
lease and operate its properties and to conduct its business as now
conducted and is duly qualified as a foreign corporation, foreign
partnership, foreign limited liability company or other entity to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the Registration Statements, all of the
issued and outstanding capital stock or partnership or membership interests
of each such Subsidiary has been duly authorized and validly issued, is
fully paid and non assessable and is owned 100% by the Company, directly or
through its subsidiaries; none of the outstanding shares of capital stock
or partnership or membership interests of any Subsidiary were issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary. All Subsidiaries of the Company are listed on Schedule 1
hereto.
(f) The Offered Securities and all other outstanding shares of issued
and outstanding capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are and, when the
Offered Securities have been delivered and paid for in accordance with this
Agreement on the Closing Date or the Option Closing Date, such Offered
Securities will have been, validly issued, fully paid and nonassessable and
will conform to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive or other similar rights
with respect to the Offered Securities.
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(g) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or the Underwriter for a
brokerage commission, finder's fee or other like payment in connection with
this offering.
(h) The Offered Securities, when issued on the Closing Date or the
Option Closing Date, will have been approved for listing on the Nasdaq
Stock Market's National Market, subject to official notice of issuance.
(i) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Offered Securities hereunder or the consummation of
the transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the Act or the Rules and
Regulations or state securities laws or by the Nasdaq National Market.
(j) The execution, delivery and performance of this Agreement and the
issuance and sale of the Offered Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their properties, or any material
agreement or instrument to which the Company or any such Subsidiary is a
party or by which the Company or any such Subsidiary is bound or to which
any of the properties of the Company or any such Subsidiary is subject, or
the charter or by laws of the Company or any such Subsidiary.
(k) This Agreement has been duly authorized, executed and delivered by
the Company.
(l) Except as disclosed in the Prospectus, the Company and its
Subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its Subsidiaries
hold any leased real or personal property material to the business of the
Company and its Subsidiaries, considered as one enterprise, under valid and
enforceable leases with no exceptions that would materially interfere with
the use made or to be made thereof by them.
(m) The Company and its Subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its Subsidiaries, would
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
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(n) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent that
would reasonably be expected to have a Material Adverse Effect.
(o) The Company and its Subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and neither the Company nor any of its
Subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(p) Except as disclosed in the Prospectus and except as would not,
singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, (i) neither the Company nor any of its Subsidiaries is in
violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances or relating
to the protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "Environmental Laws"), and
(ii) the Company and each of its Subsidiaries have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws and the Company and each Subsidiary is in compliance with all terms
and conditions of any such permits, licenses or other approvals; and the
Company is not aware of any pending investigation which might lead to such
a claim.
(q) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
Subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its Subsidiaries, would, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect,
or which might reasonably be expected to materially and adversely affect
the ability of the Company to perform its obligations under this Agreement
or which are otherwise material in the context of the sale of the Offered
Securities; and, to the Company's knowledge, no such actions, suits or
proceedings are threatened or contemplated.
(r) The audited financial statements included in the Prospectus,
together with the related notes (the "Audited Financials"), and the
unaudited financial statements included in the Company's Quarterly Report
on Form 10-Q for the quarterly period ending December 31, 2001, together
with the related schedules and notes (the "Quarterly Financials"), present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and their results of operations and
cash flows for the periods specified, and except as set forth in such
Reports such financial statements have
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been prepared in conformity with generally accepted accounting principles
in the United States ("GAAP") applied on a consistent basis throughout the
periods involved.
(s) Except as disclosed in the Prospectus, since the date of the
Audited Financials included in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries
taken as a whole, and, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(t) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not reasonably be
expected to have a Material Adverse Effect) and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except for
any such assessment, fine or penalty that is currently being contested in
good faith or as described in or contemplated by the Prospectus.
(u) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(v) No default exists, and no event has occurred which, with notice or
lapse of time or both, would constitute a default in the due performance
and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries or any of their respective properties is bound,
except for such defaults that would not result in a Material Adverse
Effect.
(w) The Company is not, and upon the issuance and sale of the Offered
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended.
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(x) The Company is subject to and in compliance with the reporting
requirements of Section 13 or Section 15(d) of the 1934 Act. The Common
Stock is registered pursuant to Section 12(g) of the 1934 Act and is listed
on the Nasdaq National Market, and the Company has taken no action designed
to, or likely to have the effect of, terminating the registration of the
Common Stock under the 1934 Act or delisting the Common Stock from the
Nasdaq National Market, nor has the Company received any notification that
the Commission or the NASD is contemplating terminating such registration
or listing.
(y) Each of PricewaterhouseCoopers LLP and KPMG LLP has certified
certain financial statements of the Company and its consolidated
Subsidiaries included in the Prospectus and is an independent public
accountant as required by the Act and the Rules and Regulations.
2. Purchase, Sale and Delivery of Offered Securities.
(a) On the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, at a purchase price of $33.11 per share, 7,500,000 shares of Firm
Securities.
The Company will deliver the Firm Securities to the Underwriter for its
account (in the form of definitive certificates, issued in such names and in
such denominations as the Underwriter may direct by notice in writing to the
Company given at or prior to 12:00 Noon, New York time, on the second full
business day preceding the Closing Date) against payment of the aggregate
purchase price therefor in federal (same day) funds by official bank check or
checks or wire transfer to an account at a bank acceptable to the Company,
payable to the order of the Company, at the offices of Xxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx & Xxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at
10:00 A.M., New York time, on June 7, 2002, in accordance with Rule 15c6-1 of
the 1934 Act, or at such other time not later than seven full business days
thereafter as the Underwriter and the Company determine, such time being herein
referred to as the "Closing Date". The Company shall make the certificates for
the Firm Securities available to the Underwriter for examination in New York,
New York at least twenty-four hours prior to the Closing Date. The Closing Date
and the location of delivery of, and the form of payment for, the Firm
Securities may be varied by agreement between the Company and the Underwriter.
(b) In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, for the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Securities as contemplated by the Prospectus,
the Underwriter may purchase from the Company, at a purchase price of $33.11 per
share, up to 750,000 Option Securities. The option granted hereby may be
exercised as to all or any part of the Option Securities at any time, and from
time to time, not more than thirty (30) days subsequent to the date of this
Agreement. No Option Securities shall be sold and delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered.
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The option granted hereby may be exercised by written notice given to the
Company by the Underwriter setting forth the number of shares of the Option
Securities to be purchased by the Underwriter and the date and time for delivery
of and payment for the Option Securities. Each date and time for delivery of and
payment for the Option Securities (which may be the Closing Date, but not
earlier) is herein called the "Option Closing Date" and shall in no event be
earlier than two (2) business days nor later than five (5) business days after
such written notice is given.
The Company will deliver the Option Securities to the Underwriter for its
account (in the form of definitive certificates, issued in such names and in
such denominations as the Underwriter may direct by notice in writing to the
Company given at or prior to 12:00 Noon, New York time, on the second full
business day preceding the Option Closing Date) against payment of the aggregate
purchase price therefor in federal (same day) funds by official bank check or
checks or wire transfer to an account at a bank acceptable to the Company,
payable to the order of the Company, at the offices of Xxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx & Xxxxxx LLP. The Company shall make the certificates for the Option
Securities available to the Underwriter for examination in New York, New York at
least twenty-four hours prior to the Option Closing Date. The Option Closing
Date and the location of delivery of, and the form of payment for, the Option
Securities may be varied by agreement between the Company and the Underwriter.
3. Offering by Underwriter. It is understood that the Underwriter proposes
to offer the Offered Securities for sale upon the terms and conditions as set
forth in the Prospectus.
4. Certain Agreements of the Company. The Company agrees with the
Underwriter that:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) not later than the second business
day following the execution and delivery of this Agreement. If an
additional registration statement necessary to register a portion of the
Offered Securities under the Act has not been filed prior to the execution
and delivery of this Agreement, the Company will file the additional
registration statement in accordance with Rule 462(b) on or prior to 6:00
P.M., New York City time, on the date following the date of this Agreement.
(b) The Company will advise the Underwriter promptly of any proposal
to amend or supplement the Registration Statements or the Prospectus and
will afford the Underwriter a reasonable opportunity to comment on any such
proposed amendment or supplement; and the Company will also advise the
Underwriter promptly of the filing of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in
respect of the Registration Statements or of any part thereof and will use
its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If at any time prior to the expiration of nine months after the
Effective Date of any Registration Statement when a prospectus relating to
the Offered Securities is required to be delivered under the Act in
connection with sales of the Offered Securities,
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any event occurs as a result of which, in the opinion of counsel for the
Underwriter or for the Company, the Prospectus as then amended or
supplemented would include an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, or if it
is necessary, in the opinion of such counsel, at any time to amend the
Prospectus to comply with the Act, the Company promptly will notify the
Underwriter of such event and, upon its request, will prepare and file with
the Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. The Company will furnish without charge to the Underwriter as
many copies as the Underwriter may from time to time reasonably request of
such amended or supplemented Prospectus.
(d) The Company will make generally available to its securityholders
as soon as practicable, but in any event not later than 18 months after the
Effective Date of the Initial Registration Statement (as defined in Rule
158(c) under the Act) (or, if later, the Effective Date of the Additional
Registration Statement), an earnings statement of the Company (which need
not be audited unless required by the Act) complying with Section 11(a) of
the Act and the Rules and Regulations (including, at the option of the
Company, Rule 158).
(e) The Company will furnish to the Underwriter copies of each
Registration Statement, including all exhibits, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Underwriter may reasonably request.
The Company will pay the expenses of printing and distributing to the
Underwriter all such documents.
(f) The Company will use its best efforts, in cooperation with the
Underwriter, to qualify the Offered Securities for offering and sale under
the laws of such jurisdictions as the Underwriter may designate and will
continue such qualifications in effect so long as required for the
distribution; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(g) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation,
printing and filing of each Registration Statement as originally filed and
or each amendment thereto, (ii) the preparation, printing and delivery to
the Underwriter of this Agreement, (iii) the preparation, issuance and
delivery of the certificates for the Offered Securities to the Underwriter,
and expenses incurred thereto, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the qualification of
the Offered Securities under securities laws in accordance with the
provisions of Section 4(f) hereof, (vi) the printing and delivery to the
Underwriter of copies of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriter of
copies of any Blue Sky Survey and any supplement thereto, (viii) the fees
and expenses of any transfer agent or registrar for the Offered Securities,
(ix) the filing
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fees incident to the review by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Offered
Securities and (x) the fees and expenses incurred in connection with the
listing of the Offered Securities on the Nasdaq National Market; provided
that, except as otherwise provided in this paragraph, the Underwriter shall
pay its own costs and expenses, including the fees and expenses of its
counsel, any transfer taxes on the Offered Securities which it may sell and
the expenses of advertising any offering of the Offered Securities made by
the Underwriter.
(h) The Company will use the net proceeds received by it from the sale
of the Offered Securities in the manner specified in the Prospectus under
the Section entitled "Use of Proceeds".
(i) The Company will use its best efforts to effect and maintain the
quotation of the Offered Securities on the Nasdaq National Market and will
file with the Nasdaq National Market all documents and notices required by
the Nasdaq National Market of companies that have securities that are
traded in the over-the-counter market and quotations for which are reported
by the Nasdaq National Market.
(j) The Company, during the period when the Prospectus is required to
be delivered under the Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within
the time periods required by the 1934 Act and the 1934 Act Regulations.
(k) For a period of 60 days after the date of the Prospectus, the
Company will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, or file with the Commission a registration
statement under the Act relating to any additional shares of its securities
or securities convertible into or exchangeable or exercisable for any
shares of its securities, or publicly disclose the intention to make any
such offer, sale, pledge, disposition or filing, without the prior written
consent of the Underwriter. The foregoing restriction shall not apply to
(i) issuances of securities pursuant to the conversion or exchange of
convertible or exchangeable securities or the exercise of warrants or
options, in each case outstanding on the date hereof, (ii) grants of
employee stock options or other awards pursuant to the terms of any
employee benefit plan of the Company in effect on the date hereof or
outside of any plan in the discretion of the Company's Board of Directors,
or issuances of securities pursuant to the exercise of such options or
other awards or issuances described in or contemplated by the Company's
public filings made in accordance with the 1934 Act, and (iii) issuances of
shares or securities convertible into or exchangeable for shares of Common
Stock in connection with acquisitions by the Company or any Subsidiary
(collectively, the "Acquisition Shares") if the recipients of such
Acquisition Shares each agree to be bound by the restrictions set forth
above for the remainder of the 60-day period; provided that,
notwithstanding the foregoing, the Company may, in connection with
acquisitions, issue up to 775,000 shares of Common Stock in the aggregate
not subject to the foregoing restrictions and may file a registration
statement under the Act with respect to all such 775,000 shares. The
Company will cause each of its executive officers and directors to furnish
to the Underwriter, prior to the Closing Date, a lock-up letter,
substantially in the form of Exhibit A hereto.
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5. Conditions of the Obligations of the Underwriter. The obligations of the
Underwriter to purchase and pay for the Firm Securities on the Closing Date and
the Option Securities on any Option Closing Date will be subject to the accuracy
of the representations and warranties on the part of the Company herein, the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, the performance by the Company of its obligations hereunder and the
following additional conditions precedent:
(a) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. The Additional Registration Statement, if not filed prior to the
execution and delivery of this Agreement, shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 4(a) of
this Agreement. No stop order suspending the effectiveness of any
Registration Statement or of any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Underwriter, shall be contemplated by the
Commission.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
Subsidiaries taken as one enterprise which, in the reasonable judgment of
the Underwriter, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any material change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of the Underwriter, be likely to
prejudice materially the sale or distribution of the Offered Securities;
(iv) any material suspension or material limitation of trading in
securities generally on the Nasdaq National Market or the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange, or
any suspension of trading of any securities of the Company on any exchanges
or in the over the counter market; (v) any banking moratorium declared by
U.S. Federal or New York authorities; (vi) any major disruption of
settlements of securities or clearance services in the United States; or
(vii) any attack on, outbreak or escalation of major hostilities or major
acts of terrorism involving the United States, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of the Underwriter, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency makes
it impractical or inadvisable to proceed with completion of the public
offering and the sale of and payment for the Offered Securities.
(c) On the Closing Date, Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx
LLP shall have furnished to the Underwriter such counsel's written opinion,
as special counsel to the Company, addressed to the Underwriter and dated
the Closing Date, in
14
form and substance reasonably satisfactory to the Underwriter substantially
in the form set forth as Exhibit B hereto.
(d) On the Closing Date, the Underwriter shall have received from each
of PricewaterhouseCoopers LLP and KPMG LLP a letter, addressed to the
Underwriter and dated such date, in form and substance reasonably
satisfactory to the Underwriter (i) confirming that it is an independent
certified public accountant with respect to the Company and its
subsidiaries within the meaning of the Act and the Rules and Regulations
and (ii) stating the conclusions and findings of such firm with respect to
the financial statements and certain financial information for which such
firm has acted as auditor and accountant, contained or incorporated by
reference in the Prospectus.
(e) On the Closing Date, the Underwriter shall have received from
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriter, such
opinion or opinions, dated the Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities
delivered on the Closing Date, the Registration Statements, the Prospectus
and other related matters as the Underwriter may reasonably require, and
the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(f) The Underwriter shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that (i) the representations and warranties of the Company in this
Agreement are true and correct, (ii) the Company has in all material
respects complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, (iii) no stop order suspending the effectiveness of any Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted or are contemplated by the Commission,
and (iv) subsequent to the date of the most recent financial statements in
the Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as one enterprise,
except as set forth in or contemplated by the Prospectus or as described in
such certificate.
(g) On or prior to the date of this Agreement, the Underwriter shall
have received lock-up letters, substantially in the form of Exhibit A
hereto, from each of the executive officers and directors of the Company.
(h) In the event that the Underwriter exercises its option provided in
Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company or
any Subsidiary hereunder shall be true and correct as of each Option
Closing Date and, at such date, the Underwriter shall have received: (i)
the opinion of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, counsel for
the Company, in form and substance reasonably satisfactory to the
Underwriter, dated such
15
Option Closing Date, relating to the Firm Securities and the Option
Securities to be purchased on such Option Closing Date and otherwise to the
same effect as the opinion required by Section 5(c); (ii) a letter from
each of PricewaterhouseCoopers LLP and KPMG LLP, dated as of the Option
Closing Date, substantially in the same form and substance as the letters
furnished to the Underwriter pursuant to Section 5(d) hereof; (iii) the
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriter, dated such Option Closing Date, relating to the Option
Securities to be purchased on such date and otherwise to the same effect as
the opinion required by Section 5(e) hereof; and (iv) a certificate, dated
such Option Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company confirming that
the certificate delivered on the Closing Date pursuant to Section 5(f)
hereof remains true and correct as of such Option Closing Date.
(i) On the Closing Date, the Offered Securities shall have been
approved for listing on the Nasdaq National Market, subject only to
official notice of issuance.
The Company will furnish the Underwriter with conformed copies of such
opinions, certificates, letters and documents as the Underwriter reasonably
requests. The Underwriter may in its sole discretion waive compliance with any
conditions to the obligations of the Underwriter hereunder whether in respect of
an Option Closing Date or otherwise.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless the Underwriter, its officers, employees, representatives and
agents and each person, if any, who controls the Underwriter within the meaning
of Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which the Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Underwriter for any legal or other expenses reasonably incurred by the
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by the Underwriter specifically for use
therein; and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
prospectus the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of the Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that a Prospectus relating to such Offered Securities
was required to be delivered by the Underwriter under the Act in connection with
such purchase and any such loss, claim, damage or liability of the Underwriter
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to such
person, a copy of the Prospectus (exclusive of material incorporated by
reference) if the Company had previously
16
furnished copies thereof to the Underwriter.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company by
the Underwriter specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above, except to the extent it has been
materially prejudiced by such omission. In case any such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. An indemnified
party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying
party, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expense of more than one separate
firm of attorneys at any time for all such indemnified parties, which
firm shall be designated in writing by the Underwriter in the case of
parties indemnified pursuant to Section 6(a) above, and by the Company
in the case of parties indemnified pursuant to Section 6(b) above. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been
a party and indemnity could have been sought
17
hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an indemnified
party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and
the Underwriter on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriter on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriter. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriter and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), the Underwriter shall not be required to contribute
any amount in excess of the amount by which the total price at which
the Offered Securities purchased by it and distributed to the public
were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls the Underwriter within the meaning of the Act; and
the obligations of the Underwriter under this Section shall be in
addition to any liability which such Underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each director
of the Company, to each officer of the Company who has signed any
Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act.
18
7. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities.
8. Termination. (a) The obligations of the Underwriter hereunder may be
terminated by written notice given to and received by the Company prior to
delivery of and payment for the Offered Securities if, prior to that time, any
of the events described in Section 5(b) have occurred or if the Underwriter
shall decline to purchase the Offered Securities for any reason permitted under
this Agreement.
(b) If this Agreement shall have been terminated pursuant to Section
8(a), the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of
the Company and the Underwriter pursuant to Section 6 shall remain in
effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 1 and all obligations under
Section 4 shall also remain in effect. If this Agreement is terminated
pursuant to Section 8(a) for any reason other than the occurrence of any
event specified in clause (iii), (iv), or (v) of Section 5(b), the Company
will reimburse the Underwriter for all out of pocket expenses (including
fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if sent to
the Underwriter, will be mailed, delivered or telegraphed and confirmed to Xxx
Xxxxxx, Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
Xxxxx X. Xxxxx, Co-Chairman, Activision, Inc., 000 Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxx, Xxx Xxxx 00000, with a copy to Xxxxxxx X. Xxxxxxxxx, Xxxxxxxx
Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 6, and no other person
will have any right or obligation hereunder.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
12. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
13. Submission to Jurisdiction. The Company hereby submits to the non
exclusive jurisdiction of the Federal and State courts in the Borough of
Manhattan, City of New York, State of New York in any suit or proceeding arising
out of or relating to this Agreement or the
19
transactions contemplated hereby.
[SIGNATURE PAGE FOLLOWS]
20
If the foregoing is in accordance with the Underwriter's understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
Underwriter in accordance with its terms.
Very truly yours,
Activision, Inc.
By: /s/ Xxxxxx Xxxxxxxx
------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
Xxxxxxx, Sachs & Co.
By: /s/ Xxxxxxx, Xxxxx & Co.
-------------------------
21
SCHEDULE 1
List of Subsidiaries
---------------------
Activision Publishing, Inc.
Activision Australia Pty. Ltd.
Activision Deutschland GmbH
Activision Canada, Inc.
Activision Value Publishing, Inc.
Neversoft Entertainment, Inc.
Activision U.K. Ltd.
CD Contact Data GmbH
CentreSoft Ltd.
ATVI France SARL
Combined Distribution (Holdings) Limited
NBG EDV Handels und Verlags GmbH & Co. KG
PDQ Distribution Ltd.
Treyarch Corporation
22
Exhibit A
Form of Lock-Up Letter Pursuant to Section 4(k)
June __, 2002
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: Activision, Inc.
Dear Sirs:
The undersigned, a stockholder and an officer and/or director of
Activision, Inc., a Delaware corporation (the "Company"), understands that
Xxxxxxx, Xxxxx & Co. (the "Underwriter") proposes to enter into an Underwriting
Agreement (the "Underwriting Agreement") with the Company providing for the sale
of shares (the "Offered Securities") of the Company's common stock, par value
$.000001 per share (the "Common Stock"). In recognition of the benefit that such
a sale will confer upon the undersigned as a stockholder and an officer and/or
director of the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agrees
with the Underwriter that, during a period of 60 days from the date of the
Underwriting Agreement, the undersigned will not, without the prior written
consent of the Underwriter, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise, except that the foregoing prohibition
shall not apply to sales of Common Stock by employees of the Company pursuant to
Rule 10b5-1 sales plans in effect on the date hereof.
23
Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(1) The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, and has all requisite
corporate power and authority to own, lease and operate its properties and carry
on its business as now being conducted. Based solely on a certificate of the
Secretaries of State of the States of California and New York, the Company is
duly qualified to transact business as a foreign corporation and is in good
standing in the States of California and New York, the only jurisdictions in
which the conduct of its business or its ownership or leasing of property
requires such qualification or where the failure to be so qualified would have a
Material Adverse Effect.
(2) The Company has all necessary corporate power and authority to execute,
deliver and perform its obligations under the Underwriting Agreement. The
Company has taken all necessary corporate action to execute, deliver and perform
its obligations under the Underwriting Agreement, and the Underwriting Agreement
has been validly executed and delivered by, and constitutes the legal, valid and
binding obligation of, the Company, enforceable against it in accordance with
its terms.
(3) The Firm Securities to be issued pursuant to the Underwriting Agreement
have been duly authorized for issuance to the Underwriter and upon the issuance
and delivery of the Firm Securities and the receipt by the Company of all
consideration therefor in accordance with the terms of the Underwriting
Agreement, the Firm Securities will be validly issued, fully paid and
non-assessable, and free of preemptive rights.
(4) Each Subsidiary listed on Schedule A attached hereto (the "Material
Domestic Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. Based solely on
certificates of the Secretaries of State of the applicable jurisdictions, each
Material Domestic Subsidiary is duly qualified to transact business as a foreign
corporation and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such qualification
or where the failure to be so qualified would have a Material Adverse Effect.
(5) The Company is not required to obtain any consent, approval,
certificate, license, permit, waiver, authorization of, or declaration, filing
or registration with, any governmental authority in connection with or as a
condition to the execution, delivery or performance by the Company of the
Underwriting Agreement or the consummation by the Company of the transactions
contemplated thereby, except for such filings and other actions as may be
required under the Securities Act of 1933, as amended (the "Securities Act"), or
the rules and regulations thereunder, or as may be required under the securities
or "blue sky" laws of the various states, as to which we express no opinion.
24
(6) The execution, delivery and performance by the Company of the
Underwriting Agreement, and compliance by it therewith, do not and will not (a)
conflict with, constitute a default under or violate (i) any provision of the
Amended and Restated Certificate of Incorporation of the Company, as amended, or
the Amended and Restated By-laws of the Company, (ii) any provision of any
material applicable law, rule or regulation, (iii) to our knowledge, any
judgment, order writ, injunction or decree to which it is subject, or (iv) any
material agreement, contract or instrument known to us to which the Company is a
party or by which it is bound, or (b) result in or require the creation or
imposition of any security interest or lien upon any of the Company's properties
pursuant to any material agreement, contract or instrument known to us to which
the Company is a party or by which it is bound. For purposes of the foregoing,
we have assumed that the only material agreements, contracts or instruments to
which the Company is a party are those listed as exhibits to the Company's
Annual Report on Form 10-K for the fiscal year ended March 31, 2001 and each of
the Company's Quarterly Reports on Form 10-Q for the quarterly periods ending
June 30, 2001, September 30, 2001 and December 31, 2001.
(7) To our knowledge, there is no action, proceeding, investigation or
claim pending or threatened in writing before any court, arbitrator or
administrative agency against the Company that relates to the Underwriting
Agreement or any action taken or to be taken pursuant thereto.
(8) The Initial Registration Statement is effective under the Securities
Act and, to our knowledge, based solely upon a verbal acknowledgment by the
staff of the Securities and Exchange Commission, no stop order suspending the
effectiveness of the Initial Registration Statement has been issued under the
Securities Act or proceedings therefor initiated or threatened by the Securities
and Exchange Commission.
(9) The Initial Registration Statement and the Prospectus, as of the
Effective Date, (except as to financial statements and related notes, financial,
statistical and accounting data and supporting schedules included or
incorporated by reference therein, as to which we express no opinion), comply as
to form in all material respects with the requirements of the Securities Act and
the rules and regulations promulgated thereunder.
(10) The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
In addition, we have participated in the preparation of the Initial
Registration Statements and the Prospectus and, although we assume no
responsibility for the accuracy and completeness of the Initial Registration
Statements or Prospectus, based upon such participation but without independent
review or verification, nothing has come to our attention which causes us to
believe that, (i) at the time the Initial Registration Statement became
effective, such Initial Registration Statement (except as to the financial
statements and related notes, financial, statistical and accounting data and
supporting schedules included or incorporated by reference therein, as to which
we express no opinion) contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (ii) at the date of the
Prospectus or at the Closing Date, the Prospectus (except as aforesaid)
contained any untrue statement of a
25
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or (iii) at the Closing Date, the Initial
Registration Statements (except as aforesaid) contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
26
Schedule A
Material Domestic Subsidiaries
Activision Publishing, Inc.
Activision Value Publishing, Inc.
Neversoft Entertainment, Inc.
Treyarch Corporation
Shaba Games, Inc.
Z-Axis, Ltd.
27
