1
$60,000,000
ACTIVISION, INC.
6 3/4% CONVERTIBLE SUBORDINATED NOTES DUE 2005
REGISTRATION RIGHTS AGREEMENT
December 16, 1997
Credit Suisse First Boston Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
UBS Securities LLC
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Activision, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to Credit Suisse First Boston Corporation, ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
and UBS Securities LLC (collectively, the "Initial Purchasers"), upon the
terms set forth in a purchase agreement of even date herewith (the "Purchase
Agreement"), $60,000,000 aggregate principal amount of its 6 3/4% Convertible
Subordinated Notes Due 2005 (the "Notes"). The Notes will be issued pursuant
to an Indenture, to be dated as of December 22, 1997 (the "Indenture") among
the Company and State Street Bank and Trust Company of California, N.A. (the
"Trustee"). Under the terms of the Indenture, the Notes are convertible, in
whole or in part, into shares of common stock of the Company, $0.000001 par
value (the "Conversion Shares" and, together with the Notes, the
"Securities") at the option of the holders thereof at any time following the
date of original issuance thereof at the conversion price set forth in the
Confidential Offering Circular dated December 16, 1997. As an inducement to
the Initial Purchasers, the Company agrees with the Initial Purchasers, for
the benefit of the holders of the Notes (including, without limitation, the
Initial Purchasers) and Conversion Shares (collectively the "Holders"), as
follows:
1. RESALE SHELF REGISTRATION. The Company shall take the following
actions:
(a) The Company shall, at its cost, as promptly as practicable (but
in no event more than 60 days after the Closing Date, as defined under the
Purchase Agreement (the "Closing Date")) file with the United States
Securities and Exchange Commission (the "Commission") and thereafter shall
use its best efforts to cause to be declared effective within 120 days
after the Closing Date a registration statement (the "Resale Shelf
Registration Statement") on an appropriate form under the Securities Act
of 1933, as amended (the "Securities Act") relating to the offer and sale
of the Transfer Restricted Securities (as defined in Section 5(d) hereof)
by the Holders thereof from time to time in accordance with the methods of
distribution set forth in the Resale Shelf Registration Statement and Rule
415 under the Securities Act (hereinafter, the "Resale Shelf
Registration"); provided, however, that no Holder shall be entitled to
have the
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Securities held by it covered by such Resale Shelf Registration
Statement unless such Holder agrees in writing to be bound by all the
provisions of this Agreement applicable to such Holder.
(b) The Company shall use its best efforts to keep the Resale Shelf
Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
Securities, for a period of two years (or for such longer period if
extended pursuant to Section 2(h) below) from the date of its
effectiveness or such shorter period that will terminate when all the
Securities covered by the Resale Shelf Registration Statement (i) have
been sold pursuant thereto or (ii) are no longer restricted securities (as
defined in Rule 144 under the Securities Act, or any successor rule
thereof) or may be sold without registration in accordance with Rule
144(k) under the Securities Act (in each case, such period being called
the "Resale Shelf Registration Period"). The Company shall be deemed not
to have used its best efforts to keep the Resale Shelf Registration
Statement effective during the requisite period if it voluntarily takes
any action that would result in Holders of Securities covered thereby not
being able to offer and sell such Securities during that period, unless
such action is required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Resale Shelf Registration Statement
and the related prospectus and any amendment or supplement thereto, as of
the effective date of such Resale Shelf Registration Statement, amendment
or supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act, the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the rules and regulations of the
Commission thereunder and (ii) not to contain any 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.
2. REGISTRATION PROCEDURES. In connection with any Resale Shelf
Registration contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior
to the filing thereof with the Commission, a copy of the Resale Shelf
Registration Statement and each amendment thereof and each supplement, if
any, to the prospectus included therein and, in the event that an Initial
Purchaser is participating in the Resale Shelf Registration Statement, the
Company shall, in each such document, when so filed with the Commission,
give due consideration to such comments as such Initial Purchaser
reasonably may propose; (ii) include the names of the Holders, who propose
to sell Securities pursuant to the Resale Shelf Registration Statement, as
selling securityholders; and (iii) after the effectiveness of the Resale
Shelf Registration Statement, upon the request of any Holder, promptly
take any action reasonably necessary to register the sale of any
Securities of such Holder and to identify such Holder as a selling
securityholder.
(b) The Company shall give written notice to the Initial Purchasers
and the Holders of the Securities:
(i) when the Resale Shelf Registration Statement or any
amendment thereto has been filed with the Commission and when the
Resale Shelf Registration Statement or any post-effective amendment
thereto has become effective;
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(ii) of any request by the Commission for amendments or
supplements to the Resale Shelf Registration Statement or the
prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Resale Shelf Registration
Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Resale Shelf Registration Statement or the
prospectus in order that the Resale Shelf Registration Statement or
the prospectus do not contain an untrue statement of a material fact
nor omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they were made)
not misleading.
(c) The Company shall use its best efforts to prevent the issuance,
and if issued to obtain the withdrawal at the earliest possible time, of
any order suspending the effectiveness of the Resale Shelf Registration
Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Resale Shelf Registration, without charge, at
least one copy of the Resale Shelf Registration Statement and any post-
effective amendment thereto, including financial statements and schedules,
and, if the Holder so reasonably requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(e) The Company shall, during the Resale Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of the
Resale Shelf Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the Resale
Shelf Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities
covered by the prospectus, or any amendment or supplement thereto,
included in the Resale Shelf Registration Statement.
(f) Prior to any public offering of the Securities, pursuant to any
Resale Shelf Registration Statement, the Company shall register or qualify
or cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification of
the Securities for offer and sale under the securities or "blue sky" laws
of such jurisdictions as any Holder of the Securities reasonably requests
in writing and do any and all other acts or things necessary or advisable
to enable the offer and sale in such jurisdictions of the Securities
covered by such Resale Shelf Registration Statement; provided, however,
that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified or (ii)
take any action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject.
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(g) The Company shall cooperate with the Holders of the Securities
to facilitate the timely preparation and delivery of certificates
representing the Securities to be sold pursuant to any Resale Shelf
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders may request in
connection with the sale of Securities pursuant to such Resale Shelf
Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 2(b) above during the period for which the
Company is required to maintain an effective Resale Shelf Registration
Statement, the Company shall promptly prepare and file a post-effective
amendment to the Resale Shelf Registration Statement or a supplement to
the related prospectus and any other required document so that, as
thereafter delivered to Holders of the Securities or purchasers of
Securities, the prospectus will not contain an 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, in light of the
circumstances under which they were made, not misleading. If the Company
notifies the Initial Purchasers and the Holders of the Securities in
accordance with paragraphs (ii) through (v) of Section 2(b) above to
suspend the use of the prospectus until the requisite changes to the
prospectus have been made, then the Initial Purchasers and the Holders of
the Securities shall suspend use of such prospectus, and the period of
effectiveness of the Resale Shelf Registration Statement provided for in
Section 1(b) above shall be extended by the number of days from and
including the date of the giving of such notice to and including the date
when the Initial Purchasers and the Holders of the Securities shall have
received such amended or supplemented prospectus pursuant to this Section
2(h).
(i) Not later than the effective date of the applicable Resale Shelf
Registration Statement, the Company will provide CUSIP numbers for the
Securities registered thereunder and provide the applicable trustee with a
printed certificate for the Securities in a form eligible for deposit with
The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Resale
Shelf Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the provisions of Section
11(a) of the Securities Act, no later than 45 days after the end of a 12-
month period (or 90 days, if such period is a fiscal year) beginning with
the first month of the Company's first fiscal quarter commencing after the
effective date of the Resale Shelf Registration Statement, which statement
shall cover such 12-month period.
(k) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and containing
such changes, if any, as shall be necessary for such qualification. In
the event that such qualification would require the appointment of a new
trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(l) The Company may require each Holder of Securities to be sold
pursuant to the Resale Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of the
Securities as the Company may from time to time reasonably require for
inclusion in the Resale Shelf Registration Statement, pursuant to
applicable law and regulations, and the Company may exclude from such
registration the Securities of any Holder
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that unreasonably fails to furnish such information within a reasonable
time after receiving such request.
(m) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and
take all such other action, if any, as any Holder of the Securities shall
reasonably request in order to facilitate the disposition of the
Securities pursuant to any Resale Shelf Registration.
(n) The Company shall (i) make reasonably available for inspection
by the Holders of the Securities, any underwriter participating in any
disposition pursuant to the Resale Shelf Registration Statement and any
attorney, accountant or other agent retained by the Holders of the
Securities or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company and
(ii) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the
Holders of the Securities or any such underwriter, attorney, accountant or
agent in connection with the Resale Shelf Registration Statement, in each
case, as shall be reasonably necessary to enable such persons, to conduct
a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated by one counsel (the "Designated
Counsel"). Irell & ▇▇▇▇▇▇▇ LLP shall be the Designated Counsel for all
purposes hereof until another Designated Counsel shall have been chosen by
the Holders of a majority in principal amount of the Securities covered by
the Resale Shelf Registration Statement (provided that Holders of
Conversion Shares shall be deemed to be Holders of the aggregate principal
amount of Notes from which such Conversion Shares were converted).
(o) The Company, if requested by any Holder of Securities covered
thereby and as reasonably necessary in connection with a proposed sale of
Securities by such Holder, shall (i) make such representations and
warranties to the Holders of Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily made
by the Company to underwriters in primary underwritten offerings and
covering matters including, but not limited to, those set forth in the
Purchase Agreement, (ii) cause its counsel to deliver an opinion and
updates thereof relating to the Securities in customary form addressed to
such Holders and the managing underwriters, if any, thereof and dated, in
the case of the initial opinion, the effective date of such Resale Shelf
Registration Statement (it being agreed that the matters to be covered by
such opinion shall include, without limitation, the due incorporation and
good standing of the Company and its subsidiaries; the qualification of
the Company and its subsidiaries to transact business as foreign
corporations; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 2(m) hereof; the due
authorization, execution, authentication and issuance, and the validity
and enforceability, of the applicable Securities; the absence of material
legal or governmental proceedings involving the Company and its
subsidiaries; the absence of governmental approvals required to be
obtained in connection with the Resale Shelf Registration Statement, the
offering and sale of the applicable Securities, or any agreement of the
type referred to in Section 2(m) hereof; the absence of laws, rules, court
orders and injunctions that could adversely affect the Resale Shelf
Registration Statement and the offering and sale of the applicable
Securities, or that could draw into question the validity of any agreement
of the type referred to in Section 2(m) hereof; the compliance as to form
of such Resale Shelf Registration Statement and any documents incorporated
by reference therein and of the Indenture with the requirements of the
Securities Act, the Exchange Act and, with respect to the Indenture, the
Trust Indenture Act; the accuracy of descriptions of laws and documents,
and of the legal consequences
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to Holders; the absence of any violation by the Company of its charter
or by-laws, or of any material legal obligation; and, as of the date of
the opinion and as of the effective date of the Resale Shelf Registration
Statement or most recent post-effective amendment thereto, as the case may
be, the absence from such Resale Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented, and from any
documents incorporated by reference therein of an untrue statement of a
material fact or the omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading (in the case of any such documents, in the light of the
circumstances existing at the time that such documents were filed with the
Commission under the Exchange Act)); (iii) cause its officers to execute
and deliver all customary documents and certificates and updates thereof
requested by any underwriters of the applicable Securities; (iv) cause its
independent public accountants and the independent public accountants with
respect to any other entity, if any, for which financial information is, or
is required to be, provided in the Resale Shelf Registration Statement to
provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering
matters of the type customarily covered in comfort letters in connection
with primary underwritten offerings, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of
Auditing Standards No. 72; (v) deliver such documents and certificates as
may be reasonably requested by any such Holders and managing underwriters,
if any, including those to evidence compliance with Section 2(h) and with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
(p) The Company will use its best efforts to (a) if the Securities
have been rated prior to the initial sale of such Securities, confirm such
ratings will apply to the Securities covered by a Resale Shelf
Registration Statement, or (b) if the Securities were not previously
rated, cause the Securities covered by a Resale Shelf Registration
Statement to be rated with the appropriate rating agencies, if so
requested by Holders of a majority in aggregate principal amount of
Securities covered by such Resale Shelf Registration Statement, or by the
managing underwriters, if any.
(q) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member of
an underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "Rules") of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Company will
assist such broker-dealer in complying with the requirements of such
Rules, including, without limitation, by (i) if such Rules, including Rule
2720, shall so require, engaging a "qualified independent underwriter" (as
defined in Rule 2720) to participate in the preparation of the Resale
Shelf Registration Statement relating to such Securities, to exercise
usual standards of due diligence in respect thereto and, if any portion of
the offering contemplated by such Resale Shelf Registration Statement is
an underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 4 hereof and (iii) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.
(r) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Securities covered by a Resale
Shelf Registration Statement contemplated hereby.
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3. REGISTRATION EXPENSES. The Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections
1 and 2 hereof, whether or not a Resale Shelf Registration is filed or
becomes effective, and shall bear or reimburse the Holders of the Securities
covered thereby for the reasonable fees and disbursements of the Designated
Counsel (provided that Holders of Conversion Shares shall be deemed to be
Holders of the aggregate principal amount of Notes from which such Conversion
Shares were converted) to act as counsel for the Holders in connection
therewith.
4. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Holder of the Securities, each person, if any, who controls
such Holder within the meaning of the Securities Act or the Exchange Act
(each Holder and such controlling persons are referred to collectively as the
"Indemnified Parties") from and against any losses, claims, damages,
liabilities, joint or several, or any actions in respect thereof (including,
but not limited to, any losses, claims, damages, liabilities or actions
relating to purchases and sales of the Securities) to which each Indemnified
Party may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Resale Shelf Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Resale Shelf Registration, 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 shall reimburse, as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action in respect thereof; provided, however, that the
Company shall not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
a Resale Shelf Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a Resale
Shelf Registration in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein; provided further,
however, that this indemnity agreement will be in addition to any liability
which the Company may otherwise have to such Indemnified Party. The Company
shall also indemnify underwriters, their officers, directors and each person
who controls such underwriters within the meaning of the Securities Act or
the Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such
Holders, except that such indemnification shall not include any claims solely
relating to or solely arising out of information supplied by any such
underwriter for inclusion in the Resale Shelf Registration Statement for
which claims such underwriter shall indemnify the Company.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act (the
Company and such controlling persons are referred to as the "Company
Indemnified Parties"), from and against any losses, claims, damages,
liabilities or any actions in respect thereof (including, but not limited to,
any losses, claims, damages, liabilities or actions relating to purchases and
sales of the Securities) to which the Company Indemnified Parties may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages, liabilities, expenses or actions arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Resale Shelf Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Resale Shelf Registration, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or omission or alleged untrue
statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by
or on behalf of such Holder specifically for inclusion
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therein; and, subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, the Company Indemnified Parties for any
legal or other expenses reasonably incurred by the Company Indemnified
Parties or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof;
provided, however, that no such Holder shall be liable for any amounts
hereunder in excess of the amount of net proceeds received by such Holder
from the sale of Securities pursuant to the Resale Shelf Registration
Statement. This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Company Indemnified Parties.
(c) Promptly after receipt by an indemnified party under this Section 4
of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 4, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b) above.
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 (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying 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 4 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof. 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 hereunder by
such indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on any claims that are
the subject matter of such action.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (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 (or actions in respect thereof)
referred to in paragraph (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from
the registration of the Securities pursuant to the Resale Shelf Registration,
or (ii) if the allocation provided by the foregoing clause (i) 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 indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties 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 on the one hand or such Holder or such
other indemnified party, as the case may be, on the other, and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such 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 Section 4(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 Section 4(d). Notwithstanding any other provision of this
Section 4(d), the Holders of the
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Securities shall not be required to contribute any amount in excess of the
amount by which the net proceeds received by such Holders from the sale of
the Securities pursuant to a Resale Shelf Registration Statement exceeds the
amount of damages which such Holders have 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 4(d), each person, if any,
who controls such indemnified party within the meaning of the Securities Act
or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as the Company. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent.
(e) The agreements contained in this Section 4 shall survive the sale
of the Securities pursuant to a Resale Shelf Registration Statement and shall
remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of
any indemnified party.
5. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES. (a) Additional
interest (the "Additional Interest") with respect to the Notes shall be
assessed as follows if any of the following events occur (each such event in
clauses (i) through (iii) below a "Registration Default"):
(i) If on or prior to the 60th day after the Closing Date, the
Resale Shelf Registration Statement has not been filed with the
Commission;
(ii) If on or prior to the 120th day after the Closing Date, the
Resale Shelf Registration Statement is not declared effective by the
Commission; or
(iii) If after the Resale Shelf Registration Statement is declared
effective and during the period for which the Company is required to
maintain an effective Resale Shelf Registration Statement (A) the Resale
Shelf Registration Statement thereafter ceases to be effective; or (B) the
Resale Shelf Registration Statement or the related prospectus ceases to be
usable (except as permitted in paragraph (b) below) in connection with
resales of Transfer Restricted Securities because either (1) any event
occurs as a result of which the related prospectus forming part of the
Resale Shelf Registration Statement would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made not misleading, or (2) it shall be necessary to amend such Resale
Shelf Registration Statement or supplement the related prospectus, to
comply with the Securities Act or the Exchange Act or the respective rules
thereunder.
Additional Interest shall accrue on the Notes over and above the interest set
forth in the title of the Securities from and including the date on which any
such Registration Default shall occur to but excluding the date on which all
such Registration Defaults have been cured, at a rate of 0.50% per annum.
(b) A Registration Default referred to in Section 5(a)(iii)(B) hereof
shall be deemed not to have occurred and be continuing in relation to a
Resale Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing of a
post-effective amendment to such Resale Shelf Registration Statement to
incorporate annual audited financial information with respect to the Company
where such post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related prospectus or (y)
other material events, with respect to the
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Company that would need to be described in such Resale Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement such
Resale Shelf Registration Statement and related prospectus to describe such
events; provided, however, that in any case if such Registration Default
occurs for a continuous period in excess of 30 days, Additional Interest
shall be payable in accordance with paragraph (a) above from the day such
Registration Default occurs until such Registration Default is cured. The
Company will have no other liabilities for monetary damages with respect to
any Registration Default; provided, however, that the Holders shall be
entitled to, and the Company shall not oppose the granting of, equitable
relief, including injunction and specific performance if such relief is
otherwise available to the Holders to enforce any provision of this Agreement.
(c) Any amounts of Additional Interest due pursuant to clause (i), (ii)
or (iii) of Section 5(a) above will be payable in cash on the regular
interest payment dates with respect to the Notes. The amount of Additional
Interest will be determined by multiplying the Additional Interest rate by
the principal amount of the Notes, multiplied by a fraction, the numerator of
which is the number of days such Additional Interest rate was applicable
during such period (determined on the basis of a 360-day year comprised of
twelve 30-day months), and the denominator of which is 360.
(d) "Transfer Restricted Securities" means each Security until (i) the
date on which such Security has been effectively registered under the
Securities Act and disposed of in accordance with the Resale Shelf
Registration Statement, or (ii) the date on which such Security is
distributed to the public pursuant to Rule 144 under the Securities Act or
may be sold or transferred without restrictions pursuant to Rule 144(k) under
the Securities Act.
6. RULES 144 AND 144A. The Company shall use its best efforts to file
the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Securities, make publicly available other information so long as necessary to
permit sales of the Securities pursuant to Rules 144 and 144A. The Company
covenants that it will take such further action as any Holder of Securities
may reasonably request, all to the extent required from time to time to
enable such Holder to sell Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144
and 144A (including the requirements of Rule 144A(d)(4)). The Company will
provide a copy of this Agreement to prospective purchasers of Securities
identified to the Company by the Initial Purchasers upon request. Upon the
request of any Holder of Securities, the Company shall deliver to such Holder
a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 6 shall be deemed to
require the Company to register any of its securities pursuant to the
Exchange Act.
7. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Securities covered by any Resale Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering ("Managing
Underwriters") will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities to be included in
such offering and will be subject to the approval of the Company, not to be
unreasonably withheld.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and
(ii) completes
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and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the
terms of such underwriting arrangements.
8. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, except by the Company and the
written consent of the Holders of a majority in principal amount of the
Securities affected by such amendment, modification, supplement, waiver or
consents.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission or overnight air courier guaranteeing next day
delivery:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Company.
(2) if to the Initial Purchasers;
Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Transactions Advisory Group
with a copy to:
Irell & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(3) if to the Company, at its address as follows:
Activision, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: Chief Financial Officer
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
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All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when
receipt is acknowledged by recipient's facsimile machine operator, if sent by
facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into,
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING 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.
(h) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) SECURITIES HELD BY THE COMPANY. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed
to be affiliates solely by reason of their holdings of such Securities) shall
not be counted in determining whether such consent or approval was given by
the Holders of such required percentage.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the several Initial Purchasers and the Company in accordance
with its terms.
Very truly yours,
Activision, Inc.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Operating Officer
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
UBS SECURITIES LLC
by: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director