INTERPLAY ENTERTAINMENT CORP - 10-K - 20040427 - CERTIFICATE_OF_INCORPORATION
SECTION 1. LAW, CERTIFICATE OF INCORPORATION AND BY-LAWS
1.1. These by-laws are subject to the certificate of incorporation of
the corporation. In these by-laws, references to law, the certificate of
incorporation and by-laws mean the law, the provisions of the certificate of
incorporation and the by-laws as from time to time in effect.
SECTION 2. STOCKHOLDERS
2.1. ANNUAL MEETING. The annual meeting of stockholders shall be held
at 10:00 a.m. on the first Wednesday in June in each year, unless that day be a
legal holiday at the place where the meeting is to be held, in which case the
meeting shall be held at the same hour on the next succeeding day not a legal
holiday, or at such other date and time as shall be designated from time to time
by the board of directors and stated in the notice of the meeting. At such
annual meeting the stockholders shall elect a board of directors, and shall
transact such other business as has been set forth in the notice of the meeting
or as may be required by law or these by-laws.
2.2. SPECIAL MEETINGS. A special meeting of the stockholders may be
called at any time by the chairman of the board, if any, the president or the
board of directors. A special meeting of the stockholders shall be called by the
secretary, or in the case of the death, absence, incapacity or refusal of the
secretary, by an assistant secretary or some other officer, upon application of
a majority of the directors. Any such application shall state the purpose or
purposes of the proposed meeting. Any such call shall state the place, date,
hour, and purposes of the meeting, and the business transacted at any special
meeting shall be limited to the purposes set forth in such call.
2.3. PLACE OF MEETING. All meetings of the stockholders for the
election of directors or for any other purpose shall be held at such place
within or without the State of Delaware as may be determined from time to time
by the chairman of the board, if any, the president or the board of directors.
Any adjourned session of any meeting of the stockholders shall be held at the
place designated in the vote of adjournment.
2.4. NOTICE OF MEETINGS. Except as otherwise provided by law, a written
notice of each meeting of stockholders stating the place, day and hour thereof
and, in the case of an annual meeting, any business to be transacted at such
annual meeting other than the election of directors, and, in the case of a
special meeting, the purposes for which such special meeting is called, shall be
given not less than ten nor more than sixty days before the meeting, to each
stockholder entitled to vote thereat, and to each stockholder who, by law, by
the certificate of incorporation or by these by-laws, is entitled to notice, by
leaving such notice with him or at his residence or usual place of business, or
by depositing it in the United States mail, postage prepaid, and addressed to
such stockholder at his address as it appears in the records of the corporation.
Such notice shall be given by the secretary, or by an officer or person
designated by the board of directors, or in the case of a special meeting by the
officer calling the meeting. As to any adjourned session of any meeting of
stockholders, notice of the adjourned meeting need not be given if the time and
place thereof are announced at the meeting at which the adjournment was taken
except that if the adjournment is for more than thirty days or if after the
adjournment a new record date is set for the adjourned session, notice of any
such adjourned session of the meeting shall be given in the manner heretofore
described. No notice of any meeting of stockholders or any adjourned session
thereof need be given to a stockholder if a written waiver of notice, executed
before or after the meeting or such adjourned session by such stockholder, is
filed with the records of the meeting or if the stockholder attends such meeting
without objecting at the beginning of the meeting to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any meeting of the
stockholders or any adjourned session thereof need be specified in any written
waiver of notice.
2.5. QUORUM OF STOCKHOLDERS. At any meeting of the stockholders a
quorum as to any matter shall consist of a majority of the votes entitled to be
cast on the matter, except where a larger quorum is required by law, by the
certificate of incorporation or by these by-laws. Any meeting may be adjourned
from time to time by a majority of the votes properly cast upon the question,
whether or not a quorum is present. If a quorum is present at an original
meeting, a quorum need not be present at an adjourned session of that meeting.
Shares of its own stock belonging to the corporation or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or indirectly, by the corporation,
shall neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of any corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
2.6. ACTION BY VOTE. When a quorum is present at any meeting, a
plurality of the votes properly cast for election to any office shall elect to
such office and a majority of the votes properly cast upon any question other
than an election to an office shall decide the question, except when a larger
vote is required by law, by the certificate of incorporation or by these
by-laws. No ballot shall be required for any election unless requested by a
stockholder present or represented at the meeting and entitled to vote in the
election
2.7. ACTION WITHOUT MEETINGS. Unless otherwise provided in the
certificate of incorporation, any action required or permitted to be taken by
stockholders for or in connection with any corporate action may be taken without
a meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be delivered to the
corporation by delivery to its registered office in Delaware by hand or
certified or registered mail, return receipt requested, to its principal place
of business or to an officer or agent of the corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Each such
written consent shall bear the date of signature of each stockholder who signs
the consent. No written consent shall be effective to take the corporate action
referred to therein unless written consents signed by a number of stockholders
sufficient to take such action are delivered to the corporation in the manner
specified in this paragraph within sixty days of the earliest dated consent so
delivered.
If action is taken by consent of stockholders and in accordance with
the foregoing, there shall be filed with the records of the meetings of
stockholders the writing or writings comprising such consent.
If action is taken by less than unanimous consent of stockholders,
prompt notice of the taking of such action without a meeting shall be given to
those who have not consented in writing and a certificate signed and attested to
by the secretary that such notice was given shall be filed with the records of
the meetings of stockholders.
In the event that the action which is consented to is such as would
have required the filing of a certificate under any provision of the General
Corporation Law of the State of Delaware, if such action had been voted upon by
the stockholders at a meeting thereof, the certificate filed under such
provision shall state, in lieu of any statement required by such provision
concerning a vote of stockholders, that written consent has been given under
Section 228 of said General Corporation Law and that written notice has been
given as provided in such Section 228.
2.8. PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for him by proxy in all matters in which a stockholder
is entitled to participate, whether by waiving notice of any meeting, objecting
to or voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by his
attorney-in-fact No proxy shall be voted or acted upon after three years from
its date unless such proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and, if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally. The authorization of a proxy may but need
not be limited to specified action, provided, however, that if a proxy limits
its authorization to a meeting or meetings of stockholders, unless otherwise
specifically provided such proxy shall entitle the holder thereof to vote at any
adjourned session but shall not be valid after the final adjournment thereof.
2.9. INSPECTORS. The directors or the person presiding at the meeting
may, but need not, appoint one or more inspectors of election and any substitute
inspectors to act at the meeting or any adjournment thereof. Each inspector,
before entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors, if any,
shall determine the number of shares of stock outstanding and the voting power
of each, the shares of stock represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all stockholders, Notwithstanding the foregoing, in the
event that a stockholder seeks to nominate one or more directors pursuant to
Section 3.3 of these by-laws, the directors shall appoint two inspectors, who
shall not be affiliated with the Corporation, to determine whether a stockholder
has complied with Section 3.3 of these by-laws. If the inspector shall determine
that a stockholder has not complied with Section 3.3 of these by-laws, the
inspectors shall direct the person presiding over the meeting to declare to the
meeting that a nomination was not made in accordance with the procedures
prescribed by the by-laws; and the person presiding over the meeting shall so
declare to the meeting and the defective nomination shall be disregarded. On
request of the person presiding at the meeting, the inspectors shall make a
report in writing of any challenge, question or matter determined by them and
execute a certificate of any fact found by them.
2.10. LIST OF STOCKHOLDERS. The secretary shall prepare and make, at
least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at such meeting, arranged in alphabetical order
and showing the address of each stockholder and the number of shares registered
in his name. The stock ledger shall be the only evidence as to who are
stockholders entitled to examine such list or to vote in person or by proxy at
such meeting.
SECTION 3. BOARD OF DIRECTORS
3.1 NUMBER. The number of directors which shall constitute the whole
board shall not be less than seven (7) nor more than nine (9) in number. The
exact number of directors shall be fixed from time to time by a resolution
adopted by a unanimous vote of directors then serving. Until otherwise fixed by
the directors, the number of directors constituting the entire board of
directors shall be seven (7). The number of directors may be decreased to any
number permitted by the foregoing at any time by the directors by vote of a
majority of the directors then in office, but only to eliminate vacancies
existing by reason of the death, resignation or removal of one or more
directors. Directors need not be stockholders.
3.2. TENURE. At each annual meeting of the stockholders, directors
shall be elected to hold office for a term expiring at the next annual meeting
of stockholders. The Secretary shall have the power to certify at any time as to
the number of directors authorized. Except as otherwise provided by law, by the
certificate of incorporation or by these by-laws, each director shall hold
office until the successors of such directors are elected and qualified, or
until he sooner dies, resigns, is removed or becomes disqualified.
3.3. NOMINATION. Nominations of persons for election to the board of
directors may only be made by or at the direction of the board of directors or
by any stockholder beneficially owning (as defined by Rule 13d-3 of the
Securities Exchange Act of 1934, as amended) of record at least one percent (1
%) of the issued and outstanding capital stock of the corporation. Nominations
of persons to be elected to the Board of Directors at any special meeting of
stockholders shall be made pursuant to timely notice in writing to the
Secretary. To be timely, a stockholder's notice (which shall only be required
with respect to a special meeting of stockholders) shall be delivered to or
mailed and received at the principal executive offices of the corporation not
less than 45 days nor more than 90 days prior to the meeting; provided, however,
that in the event that less than 55 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the date on which such notice of the date of
the meeting was mailed or such public disclosure was made. Such stockholder's
notice (which shall only be required with respect to a special meeting of
stockholders) shall set forth (A) as to each person whom the stockholder
proposes to nominate for election or reelection as a director, (i) the name,
age, business address and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number of shares of
the capital stock of the corporation which are beneficially owned by such person
and (iv) any other information relating to such person that would be required to
be disclosed in solicitations of proxies for election of directors, or would be
otherwise required, in each case pursuant to Regulation 14A promulgated under
the Securities Exchange Act of 1934, as amended (including without limitation
such person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); and (B) as to the stockholder giving
the notice (i) the name and address of such stockholder and (ii) the class and
number of shares of the capital stock of the corporation which are beneficially
owned (as defined by Rule 13d-3 of the Securities Exchange Act of 1934, as
amended) by
such stockholder. If requested in writing by the Secretary at least 15 days in
advance of the annual meeting, a stockholder whose shares are not registered in
the name of such stockholder on the corporation's books shall provide the
Secretary, within ten days of such request, with documentary support for such
claim of beneficial ownership. At the request of the board of directors, any
person nominated by the board of directors for election as a director shall
furnish to the Secretary that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee
3.4. POWERS. The business and affairs of the corporation shall be
managed by or under the direction of the board of directors who shall have and
may exercise all the powers of the corporation and do all such lawful acts and
things as are not by law, the certificate of incorporation or these bylaws
directed or required to be exercised or done by the stockholders.
3.5. VACANCIES. Vacancies and any newly created directorships resulting
from any increase in the number of directors may be filled by vote of the
stockholders at a meeting called for the purpose, or by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. When one or more directors shall resign from the board, effective at a
future date, a majority of the directors then in office, including those who
have resigned, shall have power to fill such vacancy or vacancies, the vote or
action by writing thereon to take effect when such resignation or resignations
shall become effective. The directors shall have and may exercise all their
powers notwithstanding the existence of one or more vacancies in their number,
subject to any requirements of law or of the certificate of incorporation or of
these by-laws as to the number of directors required for a quorum or for any
vote or other actions.
3.6. COMMITTEES. The board of directors may, by vote of a majority of
the whole board, (a) designate, change the membership of or terminate the
existence of any committee or committees, each committee to consist of one or
more of the directors; (b) designate one or more directors as alternate members
of any such committee who may replace any absent or disqualified member at any
meeting of the committee; and (c) determine the extent to which each such
committee shall have and may exercise the powers of the board of directors in
the management of the business and affairs of the corporation, including the
power to authorize the seal of the corporation to be affixed to all papers which
require it and the power and authority to declare dividends or to authorize the
issuance of stock; excepting, however, such powers which by law, by the
certificate of incorporation or by these by-laws they are prohibited from so
delegating. In the absence or disqualification of any member of such committee
and his alternate, if any, the member or members thereof present at any meeting
and not disqualified from voting, whether or not constituting a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Except as the
board of directors may otherwise determine, any committee may make rules for the
conduct of its business, but unless otherwise provided by the board or such
rules, its business shall be conducted as nearly as may be in the same manner as
is provided by these by-laws for the conduct of business by the board of
directors. Each committee shall keep regular minutes of its meetings and report
the same to the board of directors upon request.
3.7. REGULAR MEETINGS. Regular meetings of the board of directors may
be held without call or notice at such places within or without the State of
Delaware and at such times as the board may from time to time determine,
provided that notice of the first regular meeting following any such
determination shall be given to absent directors. A regular meeting of the
directors may be held without call or notice immediately after and at the same
place as the annual meeting of the stockholders.
3.8. SPECIAL MEETINGS. Special meetings of the board of directors may
be held at any time and at any place within or without the State of Delaware
designated in the notice of the meeting, when called by the chairman of the
board, if any, the president, or by one-third or more in number of the
directors, reasonable notice thereof being given to each director by the
secretary or by the chairman of the board, if any, the president or any one of
the directors calling the meeting.
3.9. NOTICE. It shall be reasonable and sufficient notice to a director
to send notice by mail at least forty-eight hours or by facsimile at least
twenty-four hours before the meeting addressed to him at his usual or last known
business or residence facsimile number or to give notice to him in person or by
telephone at least twenty-four hours before the meeting. Notice of a meeting
need not be given to any director if a written waiver of notice, executed by him
before or after the meeting, is filed with the records of the meeting, or to any
director who attends the meeting without protesting prior thereto or at its
commencement the lack of notice to him. Neither notice of a meeting nor a wavier
of a notice need specify the purposes of the meeting.
3.10. QUORUM. Except as may be otherwise provided by law, by the
certificate of incorporation or these by-laws, at any meeting of the directors a
majority of the directors then in office shall constitute a quorum; a quorum
shall not in any case be less than one-third of the total number of directors
constituting the whole board. Any meeting may be adjourned from time to time by
a majority of the votes cast upon the question, whether or not a quorum is
present, and the meeting may be held as adjourned without further notice.
3.11. ACTION BY VOTE. Except as may be otherwise provided by law, by
the certificate of incorporation or by these by-laws, when a quorum is present
at any meeting the vote of a majority of the directors present shall be the act
of the board of directors.
3.12. ACTION WITHOUT A MEETING. Any action required or permitted to be
taken at any meeting of the board of directors or a committee thereof may be
taken without a meeting if all the members of the board or of such committee, as
the case may be, consent thereto in writing, and such writing or writings are
filed with the records of the meetings of the board or of such committee. Such
consent shall be treated for all purposes as the act of the board or of such
committee, as the case may be.
3.13. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. Members of the
board of directors, or any committee designated by such board, may participate
in a meeting of such board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other or by any other means permitted by law. Such
participation shall constitute presence in person at such meeting.
3.14. COMPENSATION. In the discretion of the board of directors, each
director may be paid such fees for his services as director and be reimbursed
from his reasonable expenses incurred in the performance of his duties as
director as the board of directors from time to time may determine. Nothing
contained in this section shall be construed to preclude any director from
serving the corporation in any other capacity and receiving reasonable
compensation therefor.
3.15. INTERESTED DIRECTORS AND OFFICERS.
(a) No contract or transaction between the corporation and
one or more of its directors or officers, or between the corporation and any
other corporation, partnership, association, or other organization in which one
or more of the corporation's directors or officers are directors or officers, or
have a financial interest, shall be void or voidable, solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the board or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if:
(1) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
board of directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative votes of majority of
the disinterested directors, even though the disinterested directors be less
than a quorum; or
(2) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholder entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or ratified by the board
of directors, a committee thereof, or the stockholders.
(b) Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors or
of a committee which authorized the contract or transaction.
SECTION 4. OFFICERS AND AGENTS.
4.1. ENUMERATION; QUALIFICATION. The officers of the corporation shall
be a president, a treasurer, a secretary and such other officers, if any, as the
board of directors from time to time may in its discretion elect or appoint
including without limitation a chairman of the board, one or more vice
presidents and a controller. The corporation may also have such agents, if any,
as the board of directors from time to time may in its discretion choose. Any
officer may be but none need be a director or stockholder. Any two or more
offices may be held by the same person. Any officer may be required by the board
of directors to secure the faithful performance of his duties to the corporation
by giving bond in such amount and with sureties or otherwise as the board of
directors may determine.
4.2. POWERS. Subject to law, to the certificate of incorporation and
to the other provisions of these by-laws, each officer shall have, in addition
to the duties and powers herein set forth, such duties and powers as are
commonly incident to his office and such additional duties and powers as the
board of directors may from time to time designate.
4.3. ELECTION. The officers may be elected by the board of directors
at their first meeting following the annual meeting of the stockholders or at
any other time. At any time or from time to
time the directors may delegate to any officer their power to elect or appoint
any other officer or any agents.
4.4. TENURE. Each officer shall hold office until the first meeting of
the board of directors following the next annual meeting of the stockholders and
until his respective successor is chosen and qualified unless a shorter period
shall have been specified by the terms of his election or appointment, or in
each case until he sooner dies, resigns, is removed or becomes disqualified.
Each agent shall retain his authority at the pleasure of the directors, or the
officer by whom he was appointed or by the officer who then holds agent
appointive power.
4.5. CHAIRMAN OF THE BOARD OF DIRECTORS, PRESIDENT AND VICE PRESIDENT.
The chairman of the board, if any, shall have such duties and powers as shall be
designated from time to time by the board of directors. Unless the board of
directors otherwise specifies, the chairman of the board, or if there is none
the chief executive officer, shall preside, or designate the person who shall
preside, at all meetings of the stockholders and of the board of directors.
Unless the board of directors otherwise specifies, the president shall
be the chief executive officer and shall have direct charge of all business
operations of the corporation and, subject to the control of the directors,
shall have general charge and supervision of the business of the corporation.
Any vice president shall have such duties and powers as shall be set
forth in these by-laws or as shall be designated from time to time by the board
of directors or by the president.
4.6. TREASURER AND ASSISTANT TREASURERS. Unless the board of directors
otherwise specifies, the treasurer shall be the chief financial officer of the
corporation and shall be in charge of its funds and valuable papers, and shall
have such other duties and powers as may be designated from time to time by the
board of directors or by the president. If no controller is elected, the
treasurer shall, unless the board of directors otherwise specifies, also have
the duties and powers of the controller.
Any assistant treasurers shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
treasurer.
4.7. CONTROLLER AND ASSISTANT CONTROLLER. If a controller is elected,
he shall, unless the board of directors otherwise specifies, be the chief
accounting officer of the corporation and be in charge of its books of account
and accounting records, and of its accounting procedures. He shall have such
other duties and powers and may be designated from time to time by the board of
directors, the president or the treasurer.
Any assistant controller shall have such duties and powers as shall be
designated from time to time by the board of directors, the president, the
treasurer or the controller.
4.8. SECRETARY AND ASSISTANT SECRETARIES. The secretary shall record
all proceedings of the stockholders, of the board of directors and of committees
of the board of directors in a book or series of books to be kept therefore and
shall file therein all actions by written consent of stockholders or directors.
In the absence of the secretary from any meeting, an assistant secretary, or if
there be none or he is absent, a temporary secretary chosen at the meeting,
shall record the proceedings thereof. Unless a transfer agent has been appointed
the secretary shall keep or cause to be kept the stock and transfer records of
the corporation, which shall contain the names and record addresses of all
stockholders and the number of shares registered in the name of each
stockholder. He shall have such other duties and powers as may from time to time
be designated by the board of directors or the president.
Any assistant secretaries shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
secretary.
SECTION 5. RESIGNATIONS AND REMOVALS.
5.1. Any director or officer may resign at any time by delivering his
resignation in writing to the chairman of the board, if any, the president, or
the secretary or to a meeting of the board of directors. Such resignation shall
be effective upon receipt unless specified to be effective at some other time,
and without in either case the necessity of its being accepted unless the
resignation shall so state. A director (including persons elected by directors
to fill vacancies in the board) may be removed from office with or without cause
by the vote of the holders of a two-thirds of the shares issued and outstanding
and entitled to vote in the election of directors. The board of directors may at
any time remove any officer either with or without cause. The board of directors
may at any time terminate or modify the authority of any agent. No director of
officer resigning and (except where a right to receive compensation shall be
expressly provided in a duly authorized written agreement with the corporation)
no director or officer removed shall have any right to any compensation as such
director or officer for any period following his resignation or removal, or any
right to damages on account of such removal, whether his compensation be by the
month or by the year or otherwise; unless, in the case of a resignation, the
directors, or, in the case of removal, the body acting on the removal, shall in
their or its discretion provide for compensation.
SECTION 6. VACANCIES.
6.1. If the office of the president or the treasurer or the secretary
becomes vacant, the directors may elect a successor by vote of a majority of the
directors then in office. If the office of any other officer becomes vacant, any
person or body empowered to elect or appoint that officer may choose a
successor. Each such successor shall hold office for the unexpired term, and in
the case of the president, the treasurer and the secretary until his successor
is chosen and qualified or in each case he sooner dies, resigns, is removed or
becomes disqualified. Any vacancy of a directorship shall be filled as specified
in Section 3.5 of these by-laws.
SECTION 7. CAPITAL STOCK.
7.1. STOCK CERTIFICATES. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the series,
if any, of the shares held by him, in such form as shall, in conformity to law,
the certificate of incorporation and the by-laws, be prescribed from time to
time by the board of directors. Such certificate shall be signed by the chairman
or vice chairman of the board, if any, or the president or a vice president and
by the treasurer or an assistant treasurer or by the secretary or an assistant
secretary. Any of or all the signatures on the certificate may be a facsimile.
In case an officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed on such certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he were such
officer, transfer agent, or registrar at the time of its issue.
7.2. LOSS OF CERTIFICATES. In the case of the alleged theft, loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms, including receipt of a bond
sufficient to indemnify the corporation against any claim on account thereof, as
the board of directors may prescribe.
SECTION 8. TRANSFER OF SHARES OF STOCK.
8.1. TRANSFER ON BOOKS. Subject to the restrictions, if any, stated or
noted on the stock certificate, shares of stock may be transferred on the books
of the corporation by the surrender to the corporation or its transfer agent of
the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with necessary transfer
stamps affixed, and with such proof of the authenticity of signature as the
board of directors or the transfer agent of the corporation may reasonably
require. Except as may be otherwise required by law, by the certificate of
incorporation or by these by-laws, the corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to receive notice
and to vote or to give any consent with respect thereto and to be held liable
for such calls and assessments, if any, as may lawfully be made thereon,
regardless of any transfer, pledge or other disposition of such stock until the
shares have been properly transferred on the books of the corporation.
It shall be the duty of each stockholder to notify the corporation of
his post office address.
8.2. RECORD DATE AND CLOSING TRANSFER BOOKS. In order that the
corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, the board of directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the board of directors, and
which record date shall not be more than sixty nor less than ten days before the
date of such meeting. If no such record date is fixed by the board of directors,
the record date for determining the stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the board of
directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the board of
directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the board of
directors. If no such record date has been fixed by the board of directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the board of directors is
required by the General Corporation Law of the State of Delaware, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation by delivery to its
registered office in Delaware by hand or certified or registered mail, return
receipt requested, to its principal place of business or to an officer or agent
of the corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. If no record date has been fixed by the board of
directors and prior action by the board of directors is required by the
General Corporation Law of the State of Delaware, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
board of directors adopts the resolution taking such prior action.
In order that the corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action, the board of
directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record
date shall be not more than sixty days prior to such payment, exercise or other
action. If no such record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the board of directors adopts the resolution relating thereto.
SECTION 9. INDEMNIFICATION.
9.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director officer of the corporation or is or was serving at the request of the
corporation as a director or officer of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director or officer or
in any other capacity while serving as a director or officer, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than such law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a director or officer and shall inure to the benefit of the
indemnitee's heirs, executors and administrators; provided, however, that,
except as provided in this Section 9.1 with respect to proceedings to enforce
rights to indemnification, the corporation shall indemnify any such indemnitee
in connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the board of
directors of the corporation. The right to indemnification conferred in this
Section 9.1 shall be a contract right and shall include the right to be paid by
the corporation the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an "advancement of expenses");
provided, however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including without limitation, service to an
employee benefit plan) shall be made only upon delivery to the corporation of an
undertaking, by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is not further right to appeal that such indemnitee is not entitled
to be indemnified for such expenses under this Section 9 or otherwise
(hereinafter an "undertaking").
9.2. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 9.1
of these by-laws is not paid in full by the corporation within forty-five (45)
days after a written claim has been received by
the corporation, the indemnitee may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim. If successful in
whole or part in any such suit or in a suit brought by the corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) any suit by the corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
the applicable standard of conduct set forth in the Delaware General Corporation
Law. Neither the failure of the corporation (including its board of directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the corporation (including its board of directors,
independent legal counsel, or its stockholders) that the indemnitee has not met
such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right hereunder, or by the corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the indemnitee is not entitled to be indemnified or to
such advancement of expenses under this Section 9 or otherwise shall be on the
corporation.
9.3. NON-EXCLUSIVITY OF RIGHTS. The rights of indemnification and to
the advancement of expenses conferred in this Section 9 shall not be exclusive
of and shall not affect any other right which any person may have or thereafter
acquire under any statue, provision of the Certificate of Incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise, and
shall inure to the benefit of the heirs and legal representatives of such
person.
9.4. INSURANCE. The corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
9.5. INDEMNIFICATION OF EMPLOYEES OR AGENTS OF THE CORPORATION. The
corporation may, to the extent authorized from time to time by the board of
directors, grant rights to indemnification and to the advancement of expenses,
to any employee or agent of the corporation to the fullest extent of the
provisions of this Section 9 with respect to the indemnification and advancement
of expenses of directors or officers of the corporation.
9.6. INDEMNIFICATION CONTRACTS. The board of directors is authorized to
enter into a contract with any director, officer, employee or agent of the
corporation, or any person serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, including employee benefit plans, providing
for indemnification rights equivalent to or, if the board of directors so
determines, greater than, those provided for in this Section 9.
9.7. EFFECT OF AMENDMENT, Any amendment, repeal or modification of any
provision of this Section 9 by the stockholders or the directors of the
corporation shall not adversely affect any right or protection of a director or
officer of the corporation existing at the time of such amendment, repeal or
modification.
SECTION 10. CORPORATE SEAL.
10.1. Subject to alteration by the directors, the seal of the
corporation shall consist of a flat-faced circular die with the word "Delaware"
and the name of the corporation cut or engraved thereon, together with such
other words, dates or images as may be approved from time to time by the
directors.
SECTION 11. EXECUTION OF PAPERS.
11.1. Except as the board of directors may generally or in particular
cases authorize the execution thereof in some other manner, all deeds, leases,
transfers, contracts, bonds, notes, checks, drafts or other obligations made,
accepted or endorsed by the corporation shall be signed by the chairman of the
board, if any, the president, a vice president or the treasurer.
SECTION 12. FISCAL YEAR.
12.1. The fiscal year of the corporation shall end on December 31.
SECTION 13. AMENDMENTS.
13.1. These by-laws may be adopted, amended or repealed by vote of a
majority of the directors then in office (except that any amendment or repeal of
Sections 3.1, 3.3 or 13.1 of these bylaws shall be made only by unanimous vote
of the directors then serving) or by vote of a majority of the stock outstanding
and entitled to vote. Any by-law, whether adopted, amended or repealed by the
stockholders or directors, may be amended or reinstated by the stockholders or
the directors.
EXHIBIT 3.7
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED
BY-LAWS
OF
INTERPLAY ENTERTAINMENT CORP.
The undersigned, Herve Caen, the Chief Executive Officer of Interplay
Entertainment Corp. (the "Corporation"), a corporation organized and existing by
virtue of the General Corporation Law (the "GCL") of the State of Delaware, does
hereby certify pursuant to Article 8 of the Corporation's Amended and Restated
Articles of Incorporation, as amended, and Section 13 of the Corporation's
Amended and Restated By-laws (the "By-laws") as to the following:
1. The name of the Corporation is Interplay Entertainment Corp.
The original Certificate of Incorporation was filed with the Secretary of State
of the State of Delaware on February 27, 1998.
2. Section 3.9 of the By-laws is hereby amended and restated to
read in its entirety as follows:
"3.9. NOTICE. It shall be reasonable and sufficient notice to
a director to send notice by mail, including by electronic
mail at a director's last known electronic address provided
by the director to the corporation, at least forty-eight
hours or by facsimile at least twenty-four hours before the
meeting addressed to him at his usual or last known business
or residence facsimile number or to give notice to him in
person or by telephone at least twenty-four hours before the
meeting. Notice of a meeting need not be given to any
director if a written waiver of notice, executed by him
before or after the meeting, is filed with the records of the
meeting, or to any director who attends the meeting without
protesting prior thereto or at its commencement the lack of
notice to him. Neither notice of a meeting nor a wavier of a
notice need specify the purposes of the meeting."
3. The foregoing amendment of the By-laws of the Corporation has
been duly adopted by the Corporation's Board of Directors in accordance with the
provisions of Section 109 and 141 of the GCL.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment to the By-laws as of the 9th day of March 2004.
TYPE OF OPTION (CHECK ONE): /_/ INCENTIVE /_/ NONQUALIFIED
This Stock Option Agreement (the "Agreement") is entered into as of
__________, by and between Interplay Entertainment Corp., a Delaware corporation
(the "Company") and __________ (the "Optionee") pursuant to the Company's Third
Amended and Restated 1997 Stock Incentive Plan (the "Plan").
1. GRANT OF OPTION. The Company hereby grants to Optionee an
option (the "Option") to purchase all or any portion of a total of
____________shares of the Common Stock of the Company (the "Shares") at a
purchase price of $________Dollars per share (the "Exercise Price"), subject to
the terms and conditions set forth herein and the provisions of the Plan. If the
box marked "Incentive" above is checked, then this Option is intended to qualify
as an "incentive stock option" as defined in Section 422 of the Internal Revenue
Code of l986, as amended (the "Code"). If this Option fails in whole or in part
to qualify as an incentive stock option, or if the box marked "Nonqualified" is
checked, then this Option shall to that extent constitute a nonqualified stock
option.
2. VESTING OF OPTION. Subject to the terms of Section 8 below,
the right to exercise this Option shall vest in installments, in the amounts and
on the dates set forth below, provided that Optionee remains in the "Continuous
Service" (as defined in Section 3 below) of the Company as of the date of
vesting:
[vesting schedule insert]
The "Vesting Start Date" shall be the date of this agreement. No Shares
shall vest after the date of termination of Optionee's Continuous Service, but
this Option shall continue to be exercisable in accordance with Section 3 hereof
with respect to that number of shares that have vested as of the date of
termination of Optionee's Continuous Service.
3. TERM OF OPTION. Optionee's right to exercise this Option shall
terminate upon the first to occur of the following:
(a) the expiration of ten (10) years from the date of
this Agreement;
(b) the expiration of three (3) months from the date of
termination of Optionee's Continuous Service if such termination occurs for any
reason other than Disability (as defined in Section 2.9 of the Plan), death or
Cause (as defined in Section 2.4 of the Plan);
provided, however, that if Optionee dies during such three-month period the
provisions of Section 3(e) below shall apply;
(c) as of the commencement of business on the date of
termination of Optionee's Continuous Service if such termination occurs for
Cause (as defined in Section 2.4 of the Plan);
(d) the expiration of one (1) year from the date of
termination of Optionee's Continuous Service if such termination is due to the
Disability (as defined in Section 2.9 of the Plan) of the Optionee;
(e) the expiration of one (1) year from the date of
termination of Optionee's Continuous Service if such termination is due to
Optionee's death or if death occurs during the three-month period following
termination of Optionee's Continuous Service pursuant to Section 3(b) above, as
the case may be; or
(f) upon the consummation of a "Change in Control" (as
defined in Section 2.5 of the Plan), unless otherwise provided pursuant to
Section 8 below.
As used herein, the term "Continuous Service" means (i) employment by
either the Company or any parent or subsidiary corporation of the Company, or by
a corporation or a parent or subsidiary of a corporation issuing or assuming a
stock option in a transaction to which Section 424(a) of the Code applies, which
is uninterrupted except for vacations, illness (except for Disability, as
defined in Section 2.9 of the Plan), or leaves of absence which are approved in
writing by the Company or any of such other employer corporations, if
applicable, (ii) service as a member of the Board of Directors of the Company
until Optionee resigns, is removed from office, or Optionee's term of office
expires and he or she is not reelected, or (iii) so long as Optionee is engaged
as a consultant or service provider to the Company or other corporation referred
to in clause (i) above.
4. EXERCISE OF OPTION. On or after the vesting of any portion of
this Option in accordance with Sections 2 or 8 hereof, as applicable, and until
termination of the right to exercise this Option in accordance with Section 3
above, the portion of this Option which has vested may be exercised in whole or
in part by the Optionee (or Permitted Transferee, if applicable, or, after his
or her death, by the person designated in Section 5 below) upon delivery of the
following to the Company at its principal executive offices:
(a) a written notice of exercise which identifies this
Agreement and states the number of Shares then being purchased (but no
fractional Shares may be purchased);
(b) a check or cash in the amount of the Exercise Price
(or payment of the Exercise Price in such other form of lawful consideration as
the Administrator may approve from time to time under the provisions of Section
5.3 of the Plan);
(c) a check or cash in the amount reasonably requested by
the Company to satisfy the Company's withholding obligations under federal,
state or other applicable tax laws
2
with respect to the taxable income, if any, recognized by the Optionee in
connection with the exercise of this Option (unless the Company and Optionee
shall have made other arrangements for deductions or withholding from Optionee's
wages, bonus or other compensation payable to Optionee, or by the withholding of
Shares issuable upon exercise of this Option or the delivery of Shares owned by
the Optionee in accordance with Section 10.1 of the Plan, provided such
arrangements satisfy the requirements of applicable tax laws); and
(d) a letter, if requested by the Company, in such form
and substance as the Company may require, setting forth the investment intent of
the Optionee, or person designated in Section 5 below, as the case may be.
5. DEATH OF OPTIONEE; NO ASSIGNMENT. The rights of the Optionee
under this Agreement may not be assigned or transferred except by will or by the
laws of descent and distribution, and may be exercised during the lifetime of
the Optionee only by such Optionee. Any attempt to sell, pledge, assign,
hypothecate, transfer or dispose of this Option in contravention of this
Agreement or the Plan shall be void and shall have no effect. If the Optionee's
Continuous Service terminates as a result of his or her death, and provided
Optionee's rights hereunder shall have vested pursuant to Section 2 or Section 8
hereof, as applicable, Optionee's legal representative, his or her legatee, or
the person who acquired the right to exercise this Option by reason of the death
of the Optionee (individually, a "Successor") shall succeed to the Optionee's
rights and obligations under this Agreement. After the death of the Optionee,
only a Successor may exercise this Option. Notwithstanding any portion of the
foregoing to the contrary, the Administrator, in its sole discretion, may permit
the transfer of a Nonqualified Option as follows: (i) by gift to a member of the
Participant's immediate family or (ii) by transfer by instrument to a trust
providing that the Option is to be passed to beneficiaries upon death of the
trustor (either or both (i) or (ii) referred to as a "Permitted Transferee").
For purposes of this Section, "immediate family" shall mean the Optionee's
spouse (including a former spouse subject to terms of a domestic relations
order); child, stepchild, grandchild, child-in-law; parent, stepparent,
grandparent, parent-in-law; sibling and sibling-in-law, and shall include
adoptive relationships. A Permitted Transferee may not further assign, sell or
transfer the transferred Option, in whole or in part, other than by will or by
operation of the laws of descent and distribution. In addition a Permitted
Transferee shall agree in writing to be bound by the provisions of this
Agreement and the Plan.
6. REPRESENTATIONS AND WARRANTIES OF OPTIONEE.
(a) Optionee hereby represents and warrants that this
Option and, when applicable, the Shares being acquired by Optionee are for
Optionee's personal account, not as a nominee or an agent, and are for
investment purposes only, and not with a present intention of selling or
otherwise disposing of the Option or the Shares or with a view to or for resale
in connection with, any distribution or public offering thereof within the
meaning of the Securities Act of 1933, as amended (the "Securities Act").
(b) Optionee agrees that the Company may issue Shares
upon the exercise of the Option without registering such Shares under the
Securities Act, on the basis of certain exemptions from such registration
requirement. Accordingly, Optionee agrees that his or her
3
exercise of the Option may be expressly conditioned upon his or her delivery to
the Company of an investment certificate including such representations and
undertakings as the Company may reasonably require in order to assure the
availability of such exemptions.
(c) Optionee further agrees that the certificates
evidencing the Shares may bear a legend indicating such non-registration under
the Securities Act and the resulting restrictions on transfer. Optionee
acknowledges that, because Shares received upon exercise of this Option may be
unregistered, Optionee may be required to hold the Shares indefinitely unless
they are subsequently registered for resale under the Securities Act or an
exemption from such registration is available.
(d) Optionee further represents and warrants that
Optionee is either an accredited investor within the meaning of Regulation D
under the Securities Act, or by reason of Optionee's business or financial
experience, or the business or financial experience of its professional advisor,
Optionee has the capacity to protect Optionee's own interests in connection with
this transaction.
(e) Optionee further represents and warrants that
Optionee has been furnished with such materials and has been given access to
such information relating to the Company as Optionee or Optionee's qualified
representative has requested and Optionee has been afforded the opportunity to
ask questions regarding the Company, the Option and the Shares, all as Optionee
has found necessary to make an informed investment decision.
(f) Optionee acknowledges receipt of a copy of the Plan
and understands that all rights and obligations connected with this Option are
set forth in this Agreement and in the Plan.
7. ADJUSTMENTS UPON CHANGES IN CAPITAL STRUCTURE. In the event
that the outstanding shares of Common Stock of the Company are hereafter
increased or decreased or changed into or exchanged for a different number or
kind of shares or other securities of the Company by reason of a
recapitalization, stock split, reverse stock split, combination of shares,
reclassification, stock dividend or other change in the capital structure of the
Company, then appropriate adjustment shall be made by the Administrator to the
number of Shares subject to the unexercised portion of this Option and to the
Exercise Price per share, in order to preserve, as nearly as practical, but not
to increase, the benefits of the Optionee under this Option, in accordance with
the provisions of Section 4.2 of the Plan.
8. CHANGE IN CONTROL. In the event of a Change in Control of the
Company (as defined in Section 2.5 of the Plan), the Plan and the Option shall
terminate, unless the Administrator, to the extent permitted by applicable law,
but otherwise in its sole discretion provides for: (i) the continuation of the
Option (if the Company is the surviving entity); (ii) the assumption of the
Option and the Plan by the surviving entity or its parent; (iii) the
substitution by the surviving entity or its parent of the Option with an option
containing substantially the same terms; (iv) the cancellation of the Option
without payment of any consideration, provided that if such Option would be
canceled in accordance with the foregoing, the Administrator shall cause written
notice of the proposed transaction to be given to the Optionee not less than 15
days
4
prior to the anticipated effective date of the proposed transaction and on or
before the effective date of the proposed transaction, Optionee shall have the
right to exercise the vested portion of the Option; or (v) the acceleration of
vesting or the adjustment of other terms of the Option, provided that if the
Option would be accelerated or otherwise adjusted in accordance with the
foregoing, the Administrator shall cause written notice of the proposed
transaction to be given to the Optionee not less than 15 days prior to the
anticipated effective date of the proposed transaction and on or before the
effective date of the proposed transaction, Optionee shall have the right to
exercise the Option as accelerated or otherwise adjusted.
9. NO EMPLOYMENT CONTRACT CREATED. Neither the granting of this
Option nor the exercise hereof shall be construed as granting to the Optionee
any right with respect to continuance of employment by the Company or any of its
subsidiaries. The right of the Company or any of its subsidiaries to terminate
at will the Optionee's employment at any time (whether by dismissal, discharge
or otherwise), with or without cause, is specifically reserved.
10. RIGHTS AS STOCKHOLDER. The Optionee (or transferee of this
option by will or by the laws of descent and distribution or any Permitted
Transferee) shall have no rights as a stockholder with respect to any Shares
covered by this Option until the date of the issuance of a stock certificate or
certificates to him or her for such Shares, notwithstanding the exercise of this
Option.
11. "MARKET STAND-OFF" AGREEMENT. Optionee agrees that, if
requested by the Company or the managing underwriter of any proposed public
offering of the Company's securities, Optionee (or a Successor or Permitted
Transferee as applicable) will not sell or otherwise transfer or dispose of any
Shares held by Optionee (or a Successor or Permitted Transferee as applicable)
without the prior written consent of the Company or such underwriter, as the
case may be, during such period of time, not to exceed 180 days following the
effective date of the registration statement filed by the Company with respect
to such offering, as the Company or the underwriter may specify.
12. INTERPRETATION. This Option is granted pursuant to the terms
of the Plan, and shall in all respects be interpreted in accordance therewith.
The Administrator shall interpret and construe this Option and the Plan, and any
action, decision, interpretation or determination made in good faith by the
Administrator shall be final and binding on the Company and the Optionee. As
used in this Agreement, the term "Administrator" shall refer to the committee of
the Board of Directors of the Company appointed to administer the Plan, and if
no such committee has been appointed, the term Administrator shall mean the
Board of Directors.
13. NOTICES. Any notice, demand or request required or permitted
to be given under this Agreement shall be in writing and shall be deemed given
when delivered personally or three (3) days after being deposited in the United
States mail, as certified or registered mail, with postage prepaid, and
addressed, if to the Company, at its principal place of business, Attention: the
Chief Financial Officer, and if to the Optionee, at his or her most recent
address as shown in the employment or stock records of the Company.
5
14. ANNUAL AND OTHER PERIODIC REPORTS. During the term of this
Agreement, the Company will furnish or make available to the Optionee copies of
all annual and other periodic financial and informational reports that the
Company distributes generally to its stockholders.
15. GOVERNING LAW. The validity, construction, interpretation, and
effect of this Option shall be governed by and determined in accordance with the
laws of the State of California.
16. SEVERABILITY. Should any provision or portion of this
Agreement be held to be unenforceable or invalid for any reason, the remaining
provisions and portions of this Agreement shall be unaffected by such holding.
17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall be deemed one instrument.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
INTERPLAY ENTERTAINMENT CORP. "OPTIONEE"
By:
-------------------------------- -----------------------------------
[name] Name
Chief Executive Officer
EXHIBIT 10.44
AMENDMENT NUMBER 2 OF INTERNATIONAL DISTRIBUTION AGREEMENT
This Amendment Number 2 of International Distribution Agreement (this
"Amendment") is entered into as of January 1, 2000, by Interplay Entertainment
Corp., a Delaware corporation ("Interplay") and Virgin Interactive Entertainment
Limited, a corporation formed under the laws of England and Wales ("Virgin"),
with reference to the following facts:
A. The parties have entered into that certain International
Distribution Agreement dated February 10, 1999, subsequently amended under that
certain Amendment Number 1 of International Distribution Agreement dated July 1,
1999 (collectively, the "Agreement"), under which Virgin obtained from Interplay
the right to distribute Interplay products in certain territories.
B. The parties desire to amend the Agreement.
Therefore, the parties agree as follows:
I. Section 5(e) of the Agreement is deleted in its entirety and replaced
with the following:
"(e) NO RESERVES. Virgin shall not deduct or retain
reserves from payments due to Interplay under this Agreement.
Within ten business days after the date of this Amendment,
Virgin shall pay to Interplay any reserves that Virgin
currently retains, to the extent that such currently-retained
reserves exceed the amount of markdown allowances, returns,
or credits as of December 31, 1999, that have not already
been accounted for through a deduction from the amount of
Virgin's payments owed or paid to Interplay."
II. Section 5(f) of the Agreement is deleted in its entirety and replaced
with the following:
"(f) RETURNS. Virgin may not grant any markdown
allowance, price protection or other credit for Products
without the prior written consent of Interplay, not to be
unreasonably withheld or delayed. For any calendar month
during the term of this Agreement, the amount of any
Interplay-approved markdown allowances and returns resulting
from Virgin's distribution of Products may be deducted by
Virgin from its payments to Interplay under EXHIBIT `B' for
that month; PROVIDED, HOWEVER, that (i) any allowances and
returns so deducted shall have been processed by Virgin
during that month, and (ii) Virgin shall provide Interplay
with a statement of any such markdown allowances and returns,
itemized by Product and customer."
III. Section 13 (a) of the Agreement is deleted in its entirety and replaced
with the following:
"(a) TERM. This Agreement shall become effective on
the date hereof, and unless sooner terminated pursuant to the
terms of this Agreement, shall continue in full force and
effect until February 10, 2007, on which date this Agreement
shall expire."
IV. Section 1 of Exhibit "B" of the Agreement is deleted in its entirety
and replaced with the following:
"1. VIRGIN SALES TARGETS AND PAYMENTS TO INTERPLAY.
(a) For each calendar year, Virgin and Interplay
shall agree upon a target amount of Net Sales (as defined
below) for the year. Such target amount of Net Sales shall be
referred to herein as the 'Base Plan Net Sales' and shall be
set forth on Schedule `B-1' attached hereto.
(b) Virgin shall pay to Interplay, in the time and
manner set forth in subsection (c) below, a percentage of Net
Sales (such payment to Interplay shall be referred to herein
as the 'Pass-Through Amount') based upon whether, and to what
extend, Virgin has exceeded the Base Plan Net Sales for the
year. The Pass- Through Amount shall be calculated as
follows:
THE PASS-THROUGH AMOUNT
FOR NET SALES IN A CALENDAR YEAR THAT ARE: SHALL BE:
--------------------------------------------------------------------------------
100% of BPNS* or less 85% of such Net Sales
In excess of 100% of BPNS but not more
than 105% of BPNS 84% of such Net Sales
In excess of 105% of BPNS but not more
than 110% of BPNS 83% of such Net Sales
In excess of 110% of BPNS but not more
than 115% of BPNS 82% of such Net Sales
In excess of 115% of BPNS but not more
than 120% of BPNS 81% of such Net Sales
In excess of 120% of BPNS 80% of such Net Sales
*'BPNS' means the Base Plan Net Sales for the applicable year.
(c) Within 50 days after the end of each calendar
month during the term of this Agreement, Virgin shall pay
Interplay the Pass-Through Amount for Net Sales during the
month.
(d) 'Net Sales' shall mean the gross wholesale price
of the Products invoiced or shipped by Virgin in the
distribution of the Products less:
(i) Any applicable taxes on the sale or
license of the Products, other than taxes based
solely on Virgin's income and tax withholdings to
the extent creditable by Virgin.
(ii) Any Interplay-authorized markdown
allowances and/or retroactive discounts and rebates,
on the terms set forth in Section 5(f) of this
Agreement.
(iii) Amounts for returns, such as credits
or defectives, on the terms set forth in Section
5(f) of this Agreement.
(iv) Agency commissions on Products sold in
Austria and Spain."
V. Section 2 of Exhibit "B" of the Agreement is deleted in its entirety
and replaced with the following:
"2. COGS AND MARKETING REIMBURSEMENT. Within 10 days after
the end of each calendar month during the term of this
Agreement, Virgin shall deliver to Interplay an itemized
statement of Virgin's cost of goods sold (including shipping,
handling and insurance) with respect to Products sold during
that month and marketing expenses paid during that month.
Within 60 days of Interplay's receipt of such statement,
Interplay shall either pay to Virgin the amount stated, or
state specific reasons for deduction or denial. If Interplay
states deductions or a denial Virgin may request an audited
verification under SECTION 6 of this Agreement. With the sole
exception of credits for returns and markdowns in accordance
with SECTION 5(F) of this Agreement, Virgin shall not deduct
from its payments to Interplay any of its costs, including,
without limitation, the cost of goods sold and marketing
costs."
VI. Section 3 of Exhibit "B" of the Agreement is deleted in its entirety
and replaced with the following: "Intentionally deleted."
VII. Section 4 of Exhibit "B" of the Agreement, is deleted in its entirety
and replaced with the following: "Intentionally deleted."
VIII. Section 5 of Exhibit "B" of the Agreement is deleted in its entirety,
and replaced with the following:
"5. As of the date of this Amendment, the
previously-applicable provision for Interplay's payment of
Minimum Distribution Fee is eliminated. For purposes of
clarification only, the provision applicable during 1999 for
a 4,5 million British Pound Minimum Distribution Fee is
prorated for the 46 weeks out of the 52 week year during
which Virgin performed distribution services for Interplay
under this Agreement, resulting in a Minimum Distribution Fee
for 1999 of 3.98 million British Pounds."
IX. Section 6 of Exhibit "B" of the Agreement is added, as follows:
"6. CREDIT FOR COMPENSATION CONTRIBUTION. Virgin
shall credit Interplay for any compensation contribution due
after December 31, 1999 under Section 16.4 of that certain
February 10, 1999 Amended and Restated Operating Agreement
between VIE Acquisition Holdings LLC and Interplay, as
amended."
X. MISCELLANEOUS. The Agreement and this Amendment constitute the entire
agreement between the parties on the subject matter hereof and thereof, and no
amendment of the terms
herein or therein shall be valid unless made in a writing signed by the parties.
California law shall govern the interpretation and enforcement of this Amendment
without regard to conflicts of laws principles. Unless otherwise defined herein,
terms used herein shall bear the same respective meanings ascribed to such terms
in the Agreement. Except as amended hereby, the Agreement remains in full force
and effect. This Amendment may be executed in counterparts.
Wherefore, the parties hereto have executed this Amendment as of the
date first written above.
'VIRGIN'
Virgin Interactive Entertainment Limited
BY: [Illegible]
ITS:
"INTERPLAY"
INTERPLAY ENTERTAINMENT CORP.
BY: /S/ BRIAN FARGO
------------------------
Brian Fargo
ITS: CEO
Schedule B-1
BASE PLAN NET SALES
YEAR BPNS INTERPLAY SIGNATURE VIRGIN SIGNATURE
2000 $48,000,000
2001 $____________
2002 $____________
2003 $____________
2004 $____________
2005 $____________
2006 $____________
2007 $____________
EXHIBIT 10.45
AMENDMENT TO INTERNATIONAL DISTRIBUTION AGREEMENT
This Amendment to International Distribution Agreement (this
"AGREEMENT"), is entered into as of April _, 2001, by and between INTERPLAY
ENTERTAINMENT CORP., a Delaware corporation whose principal place of business is
at 16815 Von Karman Avenue, Irvine, California 92606 (hereinafter "INTERPLAY"),
and VIRGIN INTERACTIVE ENTERTAINMENT LIMITED, a corporation formed under the
laws of England and Wales whose principal place of business is at 74A Charlotte
St., London, England, W1P 1LR (hereinafter "VIRGIN"), with respect to the
following recitals:
RECITALS
A. Interplay and Virgin are parties to that certain Settlement
and Release Agreement, dated as of the date hereof (the "SETTLEMENT AGREEMENT"),
which Settlement Agreement provides for the execution and delivery of this
Agreement as a condition precedent to the consummation of the parties'
respective obligations there under.
B. Pursuant to SECTION 14(B) of that certain International
Distribution Agreement, entered into effective February 10, 1999 (the "ORIGINAL
AGREEMENT"), between Virgin and Interplay, Virgin and Interplay are amending the
Original Agreement as set forth herein. All capitalized terms used in this
Agreement and not defined herein shall have the meanings given such terms in the
Original Agreement,
C. The parties intend this Agreement to be an amendment,
effective as of the date first set forth above, of the Original Agreement, and
not a novation.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements and promises set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. PAYMENTS. Subject to Section 2 below, Exhibit B to the
Original Agreement is hereby amended as follows:
1.1 THE MINIMUM MONTHLY OVERHEAD FEE. Section 3 of
Exhibit B of the Original Agreement is hereby amended as follows:
1.1.1 Interplay shall pay to Virgin an aggregate
Minimum Monthly Overhead Fee of $1,500,000 for the period from April 1, 2001
through June 30, 2002, which amount shall be paid by Interplay to Virgin as
follows:
(a) $1,000,000 shall be payable in nine
(9) consecutive equal monthly installments of $111,111.11 each on the fifteenth
(15th) day of the month, with the first installment payable on the later of (i)
April 15, 2001 and (ii) the "Closing" (as defined in the Settlement Agreement);
and
(b) $500,000 shall be payable in six
(6) consecutive equal monthly installments of $83,333.33 each on the fifteenth
(15th) day of the month, with the first installment payable on January 15, 2002.
1.1.2 Notwithstanding SECTION 1.1.1 to the
contrary, if the Original Agreement is terminated by either party for any
reason, including as of a result of breach by either party, all unpaid amounts
provided for in SECTION 1.1.1, in addition to any other amounts that may be
payable by Interplay as a result of such termination, shall be immediately due
and payable, without notice, as of the date of such termination.
1.1.3 For the period from July 1, 2002 through
termination or expiration of the Original Agreement, no Minimum Monthly Overhead
Fee shall be payable by Interplay to Virgin, and Section 3 of Exhibit B of the
Original Agreement shall cease to have any further force or effect.
1.2 RIGHT OF OFFSET. Each of Virgin and Interplay shall
have the right to set off against any amounts payable by one such party (the
"First Party") to the other such party (the "Second Party") under the Original
Agreement all or any portion of any amounts then payable by the Second Party to
the First Party under the Original Agreement, as amended by this Agreement,
including, without limitation, the Minimum Monthly Overhead Fee.
1.3 ADJUSTMENT OF THE MINIMUM MONTHLY OVERHEAD FEE.
Section 4 of Exhibit B of the Original Agreement is hereby deleted in its
entirety. The parties agree that any prior purported amendments to the
Distribution Agreement are void.
1.4 MINIMUM DISTRIBUTION FEE. Section 5 of Exhibit B of
the Original Agreement is hereby deleted in its entirety.
2. MARKETING. The Original Agreement, including, without
limitation, Section 4 and Sections 5(b), (c), (d) and (j), is hereby amended to
the maximum extent necessary to provide that from and after July 1, 2001,
Interplay shall be solely responsible for and shall provide all marketing,
advertising, promotion, localization and testing (of packaging, Products and
advertising) of the Products in the Territory.
3. ADDITIONAL AUDIT RIGHTS. In addition to the rights and
obligations of the parties provided for in Section 6(c) of the Original
Agreement, a certified public accountant (or the European equivalent thereof)
appointed by Interplay may, at Interplay's expense and to Interplay's
satisfaction, examine Virgin's books and records for the purpose of verifying
the accuracy of any charges made by Virgin to Interplay for reimbursement of
expenses incurred by Virgin on Interplay's behalf. These additional audit rights
shall be subject to the other terms and conditions of Section 6(c).
Additionally, Section 6(c) is hereby amended to provide that, if Virgin
disagrees with the results of any audit conducted pursuant to Section 6(c),
Interplay shall have the right to obtain copies of all relevant backup documents
prepared or reviewed by the auditors in connection with the audit only to the
extent such documents relate to the Products. Additionally, the parties agree to
cooperate in any audit conducted pursuant to Section 6(c).
4. RETURNS; ETC. Sections 5(e) and (f) of the Original Agreement
are hereby amended to provide that Virgin shall not have the right to retain
from the payments due to Interplay under the
Original Agreement any reserve against Returns. Interplay shall, however, be
responsible for actual Returns, which amounts shall be determined on a monthly
basis during the Term and credited against any payments thereafter due to
Interplay under the Original Agreement if during the term of this Agreement, and
paid by Interplay to Virgin upon demand if such amount exists at or after
termination of the Original Agreement.
5. PAYMENTS BY THE PARTIES.
5.1 By Virgin. Section 1 of Exhibit B to the Original
Agreement is hereby amended to provide that all payments to be made by Virgin to
Interplay pursuant to Section 1 of Exhibit B shall be paid within fifty (50)
days after the end of the month in which the Products with respect to which such
payments relate are invoiced by Virgin to its customers. If Virgin fails to pay
any amounts due under this Section 1 when due, Interplay may withhold such
amounts from payments due under Section 2 of Exhibit B for the duration of such
non-payment by Virgin.
5.2 By Interplay. Section 2 of Exhibit B to the Original
Agreement is hereby amended to provide that, in lieu of Virgin deducting the
amounts provided for in such section from the amounts payable by Virgin to
Interplay under Section 1 of Exhibit B, Interplay shall pay such amounts to
Virgin within sixty (60) days after the date of the invoice for such obligation.
Notwithstanding the immediately preceding sentence to the contrary, if Virgin is
required to pay any amount set forth in Section 2 of Exhibit B before the sixty
(60) day period referred to above, Interplay shall pay Virgin such amount on or
before the day such invoice is payable by Virgin. If Interplay fails to pay any
amounts when due, Virgin may withhold such amounts from the payments due
Interplay under Section 1 of Exhibit B for the duration of such non-payment by
Interplay.
6. CONSOLE PRODUCTS. Section 5(k)(C) of the Original Agreement is
hereby amended to provide that, with respect to Products on video game console
systems (e.g., PlayStation, N64, Dreamcast), Interplay shall be responsible for
ordering the Products from the system licensor and the payment of the cost of
goods and royalties to such system licensors. Interplay shall not have any right
to utilize Virgin's line of credit with any of the system licensors to
facilitate ordering Products from such system licensors. If requested by
Interplay, Virgin shall have the right, at its option (and without the
obligation to do so), to order Products on video game console systems from the
system licensors and pay any amounts to the system licensors agreed to by
Interplay and Virgin, and otherwise arrange for the production and delivery of
such Products to Virgin's facilities. If Virgin orders such Products at
Interplay's request, Virgin shall have the right to set off against any amounts
due Interplay by Virgin the full cost and expense incurred by Virgin in
connection with the order by Virgin of such console Products, including, without
limitation, any cost of goods and royalties paid to such system licensors and
all shipping costs, taxes and other amounts incurred in the delivery of such
Products to Virgin.
7. MISCELLANEOUS. Except as expressly set forth in this
Agreement, all of the terms of the Original Agreement shall remain in full force
and effect. This Agreement shall be governed by and construed in accordance with
the laws of the State of California applicable to contracts made in, and to be
performed within, said state.
8. CONDITION TO EFFECTIVENESS. This Agreement shall become
effective upon, and not before the "Closing" (as defined in the Settlement
Agreement.), and if such Closing does not occur on or prior to April 30, 2001,
this Agreement shall be void and of no effect ab initio*
IN WITNESS WHEREOF, this Agreement has been made and entered into as of
the day and year first set forth above.
INTERPLAY ENTERTAINMENT CORP.,
a Delaware corporation
By: /S/ BRIAN FARGO
---------------------------
Brian Fargo
Its: Chief Executive Officer
VIRGIN INTERACTIVE ENTERTAINMENT LIMITED,
a corporation formed under the laws of
England and Wales
By:
Its:
EXHIBIT 10.46
AMENDMENT NUMBER 4 OF INTERNATIONAL DISTRIBUTION AGREEMENT
This Amendment Number 4 of the International Distribution Agreement
dated February 10, 1999 (this "Amendment") is entered into as of August 6, 2003
but is retroactively effective as of January 1st, 2002 (the "Effective Date"),
by Interplay Entertainment Corp., a Delaware corporation ("INTERPLAY") and
Avalon Interactive Group Limited, a corporation formed under the laws of England
and Wales ("AVALON"), with reference to the following facts:
RECITALS
A. Avalon Interactive Group Ltd is the successor in interest to
Virgin Interactive Entertainment ("Virgin"). For the purpose of reading
Agreements and associated papers these two names are one and the same and
constitute one and the same company.
B. The parties entered into an International Distribution
Agreement dated February 10, 1999, subsequently amended on July 1, 1999, January
1, 2000, and April 9, 2001 (collectively, the "Agreement"), under which Avalon
obtained from Interplay the right to distribute Interplay products in certain
territories.
C. The parties desire to amend the Agreement further.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements and promises
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
I. Section l(b) of the Agreement is augmented with the following
provision: Prior to entering into any of the following:
Any sublicensing of any rights granted to Avalon under the Agreement
Any deal not covered within the Distribution Agreement
Avalon shall seek approval from Interplay in writing by using the form attached
hereto, entitled "Contract Authorization Request". Section I of the Contract
Authorization Request form shall be properly filled out and sent to Interplay
for approval; if approved by Interplay, Avalon may enter into the deal, but must
resubmit the Contract Authorization Request form with Section III completed for
Interplay's records. Interplay shall not be obligated to provide Avalon, or the
third party to the deal, any relevant materials or documents necessary to
execute the agreement between Avalon and such third party until all elements of
the Contract Authorization Request form process are completed.
II. Section 4(d) of the Agreement is deleted in its entirety and replaced
with the following:
"(d) EXPENSE REIMBURSEMENTS. Interplay shall pay for
the direct costs of manufacturing the Products (which shall,
for the avoidance of doubt, include the costs of goods and
any expenses generated for the creation of the Products,
including but not limited to, the creation of packaging,
manuals, inserts, labels, translations, and agency
commissions (Agency commission solely in Austria and
Portugal)) or having the Products manufactured
and shipped to Avalon's warehouse under Section 5. In each
case, such payment will be made in accordance with Section
5(k)(C) of the Agreement, with respect to Products on video
game console systems, or Section 2 of Exhibit B of the
Agreement, as amended, with respect to personal computer
Products. Interplay shall not have any obligation to pay any
other fee, expense or other amount to Avalon or Avalon's
vendors for the services to be provided by Avalon under
Section 5 or otherwise, except as expressly provided in
Exhibit B."
III. Section 4(f) of the Agreement is deleted in its entirety and replaced
with the following: "Intentionally deleted."
IV. Section 5(c) of the Agreement is deleted in its entirety and replaced
with the following:
"(c) MARKETING. Avalon shall provide marketing and
public relations for the Products in the Territory on behalf
of Interplay in accordance with the following:
(A) MARKETING PLANS
(i) INTERPLAY TO PROVIDE EUROPEAN
RELEASE SCHEDULE AND LIST OF MARKETING ELEMENTS TO
AVALON Interplay shall provide to Avalon a full
European release schedule and the list of main
marketing Elements available to be mentioned in the
general marketing and product plans on an annual
basis. For the purpose of Marketing Plans "Elements"
shall be understood to be, but not limited to,
marketing materials such as Box Art, Screen Shots,
Texts, Graphic designs, Pictures, Gameplay Outline,
Cheat Codes, etc... Interplay shall deliver its
first full European release schedule and the list of
main marketing Elements available to be mentioned in
the general marketing and product plans to Avalon
within ten (10) business days from the actual
signing of this Amendment 4, irrespective of the
Effective Date of this Amendment. Updates of the
European release schedule are to be provided by
Interplay to Avalon on a bi-weekly basis.
(ii) AVALON TO SUPPLY MARKETING PLANS
FOR INTERPLAY'S APPROVAL. Avalon shall provide to
Interplay two types of marketing plans: 1) a twelve
(12) month general marketing plan for each calendar
year (January through December) during the term of
this agreement (or with respect to the general plan
for 2003, from the date this amendment is signed by
the parties through December 2003); and 2) a
product-specific marketing plan for each Product,
detailing Avalon's proposed country by country
marketing efforts. The general marketing plan shall
include, without limitation, all projected sales,
promotional activities (including, among other
things, advertising, public relations, trade shows
and direct mailings, for all Products and detailed
by countries under this Agreement. Each product
specific marketing plan shall include the specific
list of Elements, expected from Interplay, which
condition its proper realization. The first Avalon
general marketing plan and product specific
marketing plan shall be provided by Avalon to
Interplay within thirty (30) days from Interplay's
delivery of the European release schedule and the
list of main marketing Elements available to be
mentioned in the general marketing and
product-specific plans. Each general and
product-specific
marketing plan shall be updated on a quarterly basis
and the changes submitted for Interplay's written
approval.
(iii) In the event Interplay does not
provide to Avalon the said schedule and list of
Elements, Avalon shall no longer be bound by the
specific content of the said marketing and product
plans. In the event Interplay does not provide,
within a reasonable time frame around the agreed
date, to Avalon the specific Elements that are
agreed upon in the marketing plan submitted by
Avalon and approved by Interplay, then Avalon shall
not be bound by the specific content of the said
marketing and product plan.
(iv) APPROVAL PROCESS: Each marketing
plan identified above shall be submitted to
Interplay for its review prior to implementation and
no marketing plan may be implemented until Avalon
receives Interplay's prior written approval.
Interplay must either approve or reject these plans
within ten (10) business days of receipt of the
submitted plans. In the event Interplay fails to
either give its approval or reject a marketing plan
within the ten business day time period, the plans
shall be deemed approved. In the event of a
rejection, Interplay shall forthwith provide Avalon
with the grounds for such rejection.
(v) Avalon shall be responsible for
and shall provide all marketing, advertising,
promotion and public relations for the Products in
the Territory in accordance with the Marketing
Plans. All costs and charges of marketing,
advertising and promotion of the Products,
including, without limitation, third party costs and
charges associated with implementation of the
Marketing Plans, shall be the responsibility of, and
paid for directly by, Avalon pursuant to Section
5(c)(B) below.
(B) With respect to the Products under this
Agreement, Avalon agrees to spend a minimum of eleven percent
(11% )(for the period beginning on January 1, 2002 and ending
on June 30, 2003, the minimum marketing allowance is 10%) of
the projected Net Sales (as defined below in Section III of
this Amendment), which shall be determined and mutually
agreed to in advance in writing by and between Avalon and
Interplay, on marketing, advertising and public relations
in the Territory (the "MINIMUM MARKETING ALLOWANCE") subject
to adjustment to actual net sales at the end of a quarter.
The Minimum Marketing Allowance to be allocated as follows:
(i) three percent (3%) of the Minimum Marketing Allowance
shall be applied towards internal marketing costs in
connection with the personnel engaged in the marketing,
advertising and public relations a the Products as well as
other internal costs ("INTERNAL MINIMUM MARKETING
ALLOWANCE")(for the period beginning January 1, 2002, and
ending July 31, 2003, the Internal Minimum Marketing
Allowance shall be 2%); and (ii) the remaining eight percent
(8%) of the Minimum Marketing Allowance shall be applied
towards all marketing, advertising and public relations costs
incurred in favor of third parties by or on behalf of Avalon
in the Territory, including, without limitation, print,
television, radio and other advertising and co-op and MDF
funds ("External Minimum Marketing Allowance"). The parties
agree that only actual, out of pocket costs incurred by
Avalon shall be applied toward meeting Avalon's
Minimum Marketing Allowance obligation. It is expressly
understood and acknowledged between Interplay and Avalon,
that in the event Avalon exceeds its Minimum Marketing
Allowance obligations at any time during the Term of this
Agreement, Interplay shall not have any obligation to pay any
fees, expenses or reimburse Avalon for such excesses. Any
portion of the External Minimum Marketing Allowance not spent
by Avalon during any quarter during the Term of this
Agreement (hereinafter defined as "UNEXPLOITED MINIMUM
MARKETING ALLOWANCE") shall be added to the External Minimum
Marketing Allowance for the following quarter. For purposes
of the preceding sentence, expenditures shall be deemed to
have occurred at the time the marketing activity to which the
expenditure is applied is invoiced, not when the cost thereof
is actually paid. In the event there is any Unexploited
Minimum Marketing Allowance remaining at the end of each
calendar year during the Term, Avalon shall pay to Interplay
within thirty (30) days after the end of such calendar year,
the total Unexploited Minimum Marketing Allowance for such
calendar year. Furthermore, upon termination or expiration of
this Agreement, Avalon shall pay to Interplay within thirty
(30) days of the termination or expiration of this Agreement,
any and all Unexploited Minimum Marketing Allowance. The
Internal Minimum Marketing Allowance shall be reviewed by
Interplay and Avalon at the end of each twelve (12) month
period from the execution of this Amendment. After review by
Interplay and Avalon, the parties may mutually agree in
writing to amend the Internal Minimum Marketing Allowance."
Notwithstanding anything contained herein or in the
Agreement, the parties hereby mutually agree and acknowledge
that although the formalities set forth hereinabove above
under paragraph (A) with respect to the general marketing
plan and product specific plan were not followed by Avalon or
Interplay prior to August 2003, the parties tacitly agreed
upon all aspects in relation to the said general marketing
plan and product specific marketing plan. Accordingly, for
the sake of clarity, the parties hereby agree that Minimum
Marketing Allowance hereinabove set forth shall apply to
Avalon for the year 2002. Any Unexploited Minimum Marketing
Allowance shall be imputed to the year 2003. Within 30 days
of the execution of this Amendment, Avalon shall provide to
Interplay, all marketing information and expenditures for the
period January 1, 2002 through December 31, 2002, that are
necessary to calculate the amount of any, Unexploited Minimum
Marketing Allowance for that period.
(C) Within ten (10) days after the end of each
quarter during the Term, Avalon shall provide Interplay with
monthly reports detailing expenses incurred for each Product
under the Marketing Plans, together with supporting
documentation thereof, and these are to be reconciled on a
quarterly basis."
V. Section 5(d) of the Agreement is deleted in its entirety and replaced
with the following:
"(d) ADVERTISING AND PROMOTION. On behalf of
Interplay and at its direction, Avalon shall promote the sale
of Products throughout the Territory in accordance with the
applicable Marketing Plans and Interplay's reasonable
directions."
VI. Section 5(j) of the Agreement is deleted in its entirety and replaced
with the following:
"(j) PUBLIC RELATIONS. Avalon shall provide public
relations for the Products in the Territory on behalf of
Interplay in accordance with the Marketing Plan. Avalon
agrees to maintain and manage a public relations
infrastructure throughout the Territory of a size and quality
consistent with industry standards."
VII. Section 6 of the Agreement as amended remains in full force and effect.
VIII. Section 1 of Exhibit "B" of the Agreement is deleted in its entirety
and replaced with the following:
"1. PAYMENT. For the period beginning January 1, 2002 and
ending June 30, 2003, Avalon shall pay to Interplay
seventy-five percent (75%) of the Net Sales (as defined
below) for Products Sold under this Agreement. Avalon shall
retain the remaining twenty-five percent (25%) of the Net
Sales ("AVALON PROCEEDS"). For the period beginning July 1,
2003 through the balance of the term of the agreement, Avalon
shall pay to Interplay seventy-four percent (74%) of the Net
Sales (as defined below) for Products Sold under this
Agreement and Avalon shall retain the remaining twenty-six
percent (26%) of the Net Sales ("AVALON PROCEEDS"). All such
payments shall be paid to Interplay on the 20th day of the
second month immediately following the month in which the
Products are shipped or invoiced by Avalon to its customers,
whichever is earlier. (For example: if Product is shipped or
invoiced in the month of January, payment will be due on the
20th of March). Avalon shall bear the risk of the bad debt of
its customers.
"Net Sales" shall mean the gross wholesale price of
the Products invoiced or shipped by Avalon in the
distribution of the Products less:
(i) Any applicable taxes on the sale or license
of the Products, other than taxes based solely on Avalon's
income and tax withholdings to the extent creditable by
Avalon.
(ii) Any Interplay-authorized markdown
allowances and/or retroactive discounts and rebates, on the
terms set forth in Section 5(f) of this Agreement.
(iii) Amounts for returns, such as credits or
defectives, on the terms set forth in Section 5(f) of this
Agreement."
IX. Notwithstanding anything to the contrary in the Agreement, Interplay
shall no longer be responsible for and shall not provide marketing, advertising,
public relations and promotion of the Products. For purposes of clarity, any and
all costs of such marketing, advertising, public relations and promotion of the
Products (collectively, "Marketing Costs") shall be paid by Avalon pursuant to
Section 5(c)(B) of the Agreement. Avalon shall not deduct from its payments to
Interplay any of its past or current Marketing Costs.
X. Section 2. to the Amendment to International Distribution Agreement
dated April 9th of 2001
is deleted in its entirety.
XI. MISCELLANEOUS. The Agreement and subsequent written Amendments
constitute the entire agreement between the parties on the subject matter hereof
and thereof, and no amendment of the terms herein or therein shall be valid
unless made in a written document signed by the parties. California law shall
govern the interpretation and enforcement of this Amendment without reference to
conflicts of laws principles. Unless otherwise defined herein, terms used herein
shall bear the same respective meanings ascribed to such terms in the Agreement.
Except as amended hereby, the Agreement remains in full force and effect. This
Amendment may be executed in counterparts and may be delivered by facsimile,
each of which shall be deemed an original, but ALL of which together shall
constitute one and the same instrument. This Amendment shall not be binding
until signed by both parties.
Wherefore, the parties hereto have executed this Amendment as of the
date first written
"AVALON"
AVALON INTERACTIVE GROUP LIMITED
BY:
ITS:
Date:
"INTERPLAY*
Interplay Entertainment Corp
BY:
ITS: CEO
Date: April 14, 2003
SECTION I
REQUEST FOR APPROVAL TO SUBLICENSE OR ENTER INTO AN AGREEMENT: The International
Distribution Agreement dated February 10, 1999, as amended (the "International
Distribution Agreement"), by and between Interplay and Avalon, prohibits Avalon
from entering into any kind of agreement such as sublicensing its rights
thereunder without the consent of Interplay. Avalon hereby requests Interplay's
consent to consider the following proposal with respect to the product(s)
described below in accordance with the terms described below and otherwise
subject to the terms of the International Distribution Agreement.
DEAL INFORMATION:
CONTRACTING PARTIES:
THIRD PARTY CONTACT INFORMATION:
TERM:
TERRITORY:
EXCLUSIVITY:
PRODUCES) AND PLATFORMS):
CASH INFLOWS AND TIMING:
i. Advances/Guarantees:
ii. Royalties:
CASH OUTFLOWS:
DETAILED SUMMARY OF PROPOSED CONTRACT AND PARTY
RIGHTS/RESPONSIBILITIES: DOCUMENTS AND MATERIALS NEEDED FROM INTERPLAY
DURING EXECUTION OF THE PROPOSED CONTRACT: TERMINATION PROVISIONS:
ASSIGNMENT/TRANSFER PROVISIONS: LAW VENUE:
SUBMITTED BY: _________ of Avalon Date:
SECTION II
INTERPLAY AUTHORIZATION: With the signatures below, Interplay authorizes Avalon
to enter into the above described contract negotiation and agreement, provided
that: (i) such agreement expressly provides that in the event Avalon loses its
rights to the Product(s) for any reason, such agreement shall terminate
immediately upon the loss of such rights; (ii) Avalon shall be expressly
prohibited from cross-collateralizing and/or offsetting any amounts due with
respect to this agreement as against any amounts due pursuant to any other
agreements between Interplay, on the one hand, and Avalon, on the other hand,
including without limitation the International Distribution Agreement; (iii)
notwithstanding the terms of the International Distribution Agreement,
Interplay's royalties with respect to the Product(s) shall be as follows:
__________________________; and (iv) Interplay shall have the right to review
and approve (which approval Interplay shall not unreasonably withhold or delay)
the final form of such agreement prior to execution.
Interplay Management
EXHIBIT 10.47
MUTUAL RELEASES AND SETTLEMENT AGREEMENT
It is hereby agreed by and among the parties herein as follows:
1.0 PARTIES & EFFECTIVE DATE OF SETTLEMENT
1.1 This Settlement Agreement is entered into between and among
Plaintiff Warner Bros. Entertainment Inc. ("Plaintiff), on the one hand, and
Defendant Interplay Entertainment Corporation, ("Defendant"), on the other hand.
The above parties are sometimes referred to in this Settlement Agreement as "the
Parties." This Settlement Agreement is effective as of October 13,2003.
2.0 Background Facts
This Settlement Agreement is made in light of the following facts:
2.1 On or about October 9, 2003, Plaintiff filed a Complaint
captioned WARNER BROS. ENTERTAINMENT INC. V. INTERPLAY ENTERTAINMENT
CORPORATION, AND DOES 1 THROUGH 20, INCLUSIVE, Los Angeles County Superior
Court, case no. BC 303844. Defendant has not filed an Answer. The case referred
to in this paragraph is referred to herein as the "Action."
2.2 The Action arises from Defendant's default on a certain
Amended and Restated Secured Convertible Promissory Note, dated as of April
30,2002 ("Promissory Note") with an original principal sum of Two Million
Dollars ($2,000,000.00). Said Promissory Note was secured by certain collateral
as defined in a certain Security Agreement, dated as of April 30,2002, (the
"Security Agreement")
3.0 Purpose of this Settlement Agreement
3.1 This Settlement Agreement is entered into in good faith by the
Parties to settle all rights, duties, claims, accounts and liabilities between
and among them in relation to all claims arising from or relating in any way to
any and all facts, issues, claims, causes of action and defenses raised by the
Action referenced in paragraph 2.1 above. The settlement evidenced
by this Settlement Agreement is not to be deemed an admission of liability or an
admission of the merit or lack of merit of any claims released herein.
3.2 In light of the foregoing, the Parties have agreed to settle
and finally resolve the Action by payment to Warner Bros. of the remaining
principle in the amount of $1,333,333.34 plus interest pursuant to the terms of
a Stipulated Judgment as described below, mutual releases, and a dismissal of
the Action with prejudice.
4.0 Agreements and Undertakings
4.1 EXECUTION OF STIPULATION FOR ENTRY OF JUDGMENT
4.1.1 Concurrently with the execution of this Settlement
Agreement, the Parties herein shall execute a Stipulation for Entry of Judgment.
A true and correct copy of this Stipulation for Entry of Judgment is attached
hereto as Exhibit "A" and incorporated herein as though set forth in full. This
Stipulation will not be filed with the Court except in the event of a default by
Defendant as described below.
4.2 PAYMENT BY DEFENDANT
In light of the foregoing and in consideration for the
contingent agreement of Plaintiff to dismiss its Complaint against Defendant
with prejudice as set forth in P. 4.4.1 below, Defendant agrees and stipulates
as follows:
4.2.1 Defendant will pay to Plaintiff the sum of One
Million Three Hundred Thirty-Three Thousand, Three Hundred Thirty-Three Dollars
and Thirty-Four cents ($1,333,333.34) plus interest as follows:
PAYMENT DUE DATE PRINCIPLE INTEREST TOTAL
---------------- --------- -------- -----
October 31,2003 $87,222.23 112,777.77 200,000.00
November 28,2003 $415,370.37 6,230.56 421,600.93
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198-75 SETTLEMENT AGREEMENT
December 31,2003 $415,370.37 4,153.70 421,600.93
January 30, 2004 $415,370.37 2,076.85 419,524.07
4.2.1 All payments set forth above shall be made payable to
"Warner Bros. Entertainment Inc." and mailed to Plaintiff at 4000 Warner Blvd.,
Burbank, California, 91522, Attn: General Counsel.
4.3 DEFAULT BY DEFENDANT
4.3.1 If Defendant fails to make any of the payments within
five (5) days of the dates specified above, Defendant will be in default of this
Settlement Agreement. Plaintiff may give Defendant written notice of such
default, sent by facsimile and first class mail to Interplay Entertainment
Corp., 16815 Von Karman Avenue, Irvine, California, 92606, Attn: Corporate
Counsel.
4.3.2 If the payment has not been made within five (5) days
from the date of sending of such default notice, as set forth in P. 4.3.1 above,
Defendant will be in default under this Settlement Agreement, and Plaintiff can
file the Stipulation for Entry of Judgment, in the form of Exhibit "A" hereto by
EX PARTE Application. The Stipulated Judgment will be entered against Defendant
in the amount of $1,457,444.45, less any payments made pursuant to the
Settlement Agreement. Interest shall accrue on the Stipulated Judgment at the
rate of 10% per annum, calculated from the date the Stipulated Judgment is
entered and until the date the Stipulated Judgment is paid in full.
4.3.3 Once the Stipulated Judgment is entered, Plaintiff
may record the Stipulated Judgment and proceed with any available legal remedy
to collect the Stipulated Judgment including enforcement of its right under the
Promissory Note and the Security Agreement dated as of April 30, 2002. Plaintiff
will be entitled to recover all actual attorneys' fees and costs incurred in
enforcing the Stipulated Judgment.
4.4 DISMISSAL BY PLAINTIFF
4.4.1 Within twenty (20) days of the receipt of the final
payment specified above, Plaintiff agrees to file with the Clerk of the Superior
Court a request for dismissal with prejudice of the Complaint.
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198-75 SETTLEMENT AGREEMENT
5.0 RELEASES
5.1 Except as explicitly set forth in this Settlement Agreement,
and with the exception of any and all remedies authorized by law with respect to
this Settlement Agreement, Interplay Entertainment Corp., and each and all of
its successors in interest, predecessors in interest, parent companies,
divisions, affiliates, subsidiaries, partners, officers, directors,
shareholders, employees, heirs, assigns, beneficiaries, agents and
representatives, will, and hereby do, release, discharge and covenant not to sue
Warner Bros. Entertainment, Inc. and its successors in interest, predecessors in
interest, parent companies, subsidiaries, affiliates, divisions, officers,
directors, shareholders, partners, representatives, insurers, heirs, assigns,
beneficiaries, attorneys, employees and agents, and each of them, from any and
all claims, losses, debts, charges, damages, demands, obligations, causes of
action, lawsuits, liabilities, breaches of duty, misfeasance, malfeasance,
promises, controversies, contracts, judgments, awards, penalties, costs, and
expenses, of whatever nature, type, kind, description or character, whether
known or unknown, which have ever existed or which do exist, arising from or
relating in any way to any and all facts, issues, claims, causes of action and
defenses raised by or in, or that could have been raised by or in, the Action
referenced in P. 2.1.
5.2 Except as explicitly set forth in this Settlement Agreement,
and with the exception of any and all remedies authorized by law with respect to
this Settlement Agreement, and contingent on compliance by Interplay with the
obligations set forth in paragraph 4.2 herein, Warner Bros. Entertainment Inc.,
and each and all of its successors in interest, predecessors in interest, parent
companies, divisions, affiliates, subsidiaries, partners, officers, directors,
shareholders, employees, heirs, assigns, beneficiaries, agents and
representatives, will, and hereby do, release, discharge and covenant not to sue
Interplay Entertainment Corp. and its successors in interest, predecessors in
interest, parent companies, subsidiaries, affiliates, divisions, officers,
directors, shareholders, partners, representatives, insurers, heirs, assigns,
beneficiaries, attorneys, employees and agents, and each of them, from any and
all claims, losses, debts, charges, damages, demands, obligations, causes of
action, lawsuits, liabilities, breaches of duty, misfeasance, malfeasance,
promises, controversies, contracts, judgments, awards, penalties,
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198-75 SETTLEMENT AGREEMENT
costs, and expenses, of whatever nature, type, kind, description or character,
whether known or unknown, which have ever existed or which do exist, arising
from or relating in any way to any and all facts, issues, claims, causes of
action and defenses raised by or in, or that could have been raised by or in,
the Action referenced in P. 2.1.
6.0 Matters Not Released Herein
6.1 Notwithstanding anything else in this Settlement Agreement to
the contrary, the Parties hereto do not release any matters relating to
adherence to and the enforcement of this Settlement Agreement. Nor does Warner
Bros, release any of its rights under the Promissory Note, including its
conversion rights, or its rights under the Security Agreement, both of which
remain in full force and effect until Interplay has satisfied its obligations
under the Promissory Note in full.
7.0 Waiver of Rights Under Civil Code Section 1542
7.1 The Parties declare that they understand the full nature,
extent, and import of Section 1542 of the California Civil Code and of this
entire Settlement Agreement, and have sought and obtained the advice of counsel
with respect to that statute and this Settlement Agreement. Accordingly, with
respect to the released matters, the Parties hereby waive and relinquish any and
all rights or benefits that they may have under the provisions of Section 1542
of the California Civil Code, which reads as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in its favor at the
time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
7.2 In connection with this waiver and relinquishment, each of the
Parties acknowledges that it may later be discovered that there are facts in
addition to or different from those that it now knows or believes to be true
with respect to the subject matter of this Settlement Agreement. The Parties
also recognize the possibility that, in the future, damages may be suffered
related to the subject matter of this Settlement Agreement that are not
currently known. Fully recognizing these possibilities, it is the Parties'
intention to fully, finally, and forever settle
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198-75 SETTLEMENT AGREEMENT
and release all disputes and differences, known or unknown, suspected or
unsuspected, that now exist, may exist, or heretofore have existed with respect
to the released matters. In furtherance of this intention, the releases given in
this Settlement Agreement, once effective, shall be and shall remain in effect
as a full and complete general release of the released matters notwithstanding
the discovery or existence of such additional or different facts or damages. The
Parties agree that this Settlement Agreement shall not be subject to termination
or rescission by virtue of any difference in facts.
8.0 WARRANTIES OF AUTHORITY AND NONASSIGNMENT
8.1 Each of the Parties to this Settlement Agreement warrants that
said Party has full authority to enter into this Settlement Agreement, to make
the Releases set forth in this Settlement Agreement, and to enter into the
undertakings and obligations set forth in this Settlement Agreement. The Parties
hereby warrant that they have not assigned their respective claims to any other
party or person.
8.2 Each of the Parties to this Settlement Agreement hereby
warrants and represents that the person executing this Settlement Agreement on
its behalf is fully authorized to do so, and that the authorized agents of each
Party have taken all steps required by law or the Parties' bylaws to grant the
signatory said authority.
9.0 FURTHER REPRESENTATIONS AND WARRANTIES
9.1 In entering into this Settlement Agreement, the Parties
represent and warrant that they have fully discussed and reviewed all aspects of
this Settlement Agreement with their counsel; that they have carefully reviewed
and understand all of the provisions of this Settlement Agreement; and that they
are freely, knowingly, and voluntarily entering into this Settlement Agreement
without any form of duress.
10.0 PERFORMANCE OF AGREEMENT
10.1 The Parties each agree to do all the things necessary or
convenient to carry out and effectuate the terms of this Settlement Agreement,
and agree not to do or fail to do anything, directly or indirectly, that will
interfere with the terms and conditions thereof.
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198-75 SETTLEMENT AGREEMENT
11.0 CONTINUING JURISDICTION
11.1 The Parties agree and acknowledge that, pursuant to California
Code of Civil Procedure Section 664.6, the Los Angeles County Superior Court
shall retain continuing jurisdiction over this action for the purpose of
enforcing any and all terms of this Settlement Agreement. Any breach of any
provision of this Settlement Agreement shall be subject to appropriate relief,
as determined by the Court, and any Party may institute an action with the Court
for enforcement of any provision of this Settlement Agreement. In the event that
any such action for enforcement of this Settlement Agreement becomes necessary,
the prevailing Party shall be entitled to its reasonable attorney's fees and
costs.
12.0 SUCCESSORS IN INTEREST
12.1 This Settlement Agreement, including the Releases herein
contained, shall be binding upon and inure to the benefit of each of the Parties
hereto and each of their successors in interest, including heirs, assigns, and
beneficiaries.
13.0 MUTUALLY DRAFTED SETTLEMENT AGREEMENT
13.1 Each of the Parties hereto has been fully and competently
represented by counsel of its own choosing in the negotiations and drafting of
this Settlement Agreement. Accordingly, the Parties agree that the rule of
construction of contracts resolving any ambiguities against the drafting Party
shall be inapplicable to this Settlement Agreement. Further, each Party hereto
acknowledges that it has read this entire Settlement Agreement and fully
understands its terms, conditions and effects.
14.0 CALIFORNIA LAW
14.1 All questions with respect to the construction of this
Settlement Agreement, and the rights and liabilities of the Parties hereto,
shall be governed by the laws of the State of California, and venue shall lie in
Los Angeles County.
15.0 ENTIRE AGREEMENT
15.1 This Settlement Agreement contains the entire agreement of the
Parties and may not be modified or amended except by a further document in
writing and signed by the
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198-75 SETTLEMENT AGREEMENT
Parties. None of the Parties is relying upon any promise, representation or
statement not contained within this Settlement Agreement.
16.0 HEADINGS
16.1 Section Headings are for convenience only and are not part of
the Settlement Agreement.
17.0 COUNTERPARTS
17.1 The Parties may execute this Settlement Agreement in
counterparts, each one of which will be an original or the equivalent thereof.
Signatures by facsimile are binding, and the Parties will exchange duplicate
original signatures promptly after execution of this Agreement.
18.0 SEVERABILITY
18.1 If any provision in this Settlement Agreement is held by a
Court of competent jurisdiction to be invalid, void or unenforceable for
whatever reason, the remaining provisions not so declared shall nevertheless
continue in full force and effect without being impaired in any manner
whatsoever.
19.0 GENDER AND NUMBER
19.1 Wherever the context so requires, the singular shall include
the plural; the plural shall include the singular; the masculine gender shall
include the feminine and neuter genders; the feminine gender shall include the
masculine and neuter genders; and the neuter gender shall include the masculine
and feminine genders.
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198-75 SETTLEMENT AGREEMENT
IN WITNESS WHEREOF, the Parties hereto have agreed to and executed this
Settlement Agreement.
DATED: October 23, 2003 INTERPLAY ENTERTAINMENT CORP.,
a Delaware corporation
By: /s/ Phil Adam
-----------------------
Name: Phil Adam
Its: President
DATED: October 31, 2003 WARNER BROS. ENTERTAINMENT INC.,
a Delaware Corporation
APPROVED AS TO FORM: By: /s/ John A. Schulman
-----------------------
DATED: October 28, 2003 Name: John A. Schulman
Its: Exec. VP & General Counsel
CALDWELL, LESLIE, NEWCOMBE & PETTIT
A Professional Corporation Christopher G.
Caldwell Joan Mack
By /s/ Joan Mack
-----------------------
JOAN MACK
Attorneys for WARNER BROS.
ENTERTAINMENT, INC.
DATED:October 23, 2003
By /s/
-----------------------
Attorneys for INTERPLAY
ENTERTAINMENT CORP.
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198-75 SETTLEMENT AGREEMENT
1 CALDWELL, LESLIE, NEWCOMBE & PETTIT
CHRISTOPHER G. CALDWELL, State Bar No. 106790
2 JOAN MACK, State Bar No. 180451
A Professional Corporation
3 1000 Wilshire Blvd., Suite 600
Los Angeles, California 90017
4 Telephone: (213) 629-9040
5 Facsimile: (213) 629-9022
6 Attorneys for Plaintiff WARNER BROS.
ENTERTAINMENT INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF LOS ANGELES
10
11 WARNER BROS. ENTERTAINMENT INC., Case No. BC 303844
12 Plaintiff,
V. STIPULATION FOR ENTRY OF JUDGMENT
13 INTERPLAY ENTERTAINMENT CORPORATION,
a Delaware corporation, and
14 DOES 1-20,
15
16 Defendants.
IT IS HEREBY STIPULATED by and between Plaintiff Warner Bros.
Entertainment Inc. ("Plaintiff"), on the one hand, and Defendant Interplay
Entertainment Corporation, ("Defendant"), on the other hand, that judgment may
be entered in the above-captioned action without further order or further notice
of hearing in favor of Plaintiff and against Defendant, as follows:
1. The Parties hereto have provided for payment by Defendant to
Plaintiff per that certain Settlement Agreement dated as of October 13, 2003
(the "Settlement Agreement"), as follows: Defendant will pay to Plaintiff(l) Two
Hundred Thousand Dollars ($200,000.00) on or before October 31, 2003; (2) Four
Hundred Twenty-One Thousand Six Hundred Dollars and Ninety-Three Cents
($421,600.93) on or before November 28,2003; (3) Four Hundred Nineteen Thousand
Five Hundred Twenty-Four Dollars and Seven Cents ($419,524.07) on or before
December 31, 2003; and (4) Four Hundred Seventeen Thousand Four Hundred
Forty-Seven Dollars and Twenty-Two Cents ($417,447.22) on or before January
30,2004. Should a default occur under the terms of the Settlement Agreement,
Plaintiff is entitled to recover against Defendants a judgment in the amount of
One Million Four Hundred Fifty-Eight Thousand Five Hundred Seventy-Two Dollars
and Twenty-Two Cents ($ 1,458,572.22), as set forth in the Settlement Agreement,
less credit for any amounts paid pursuant to the terms of the Settlement
Agreement. Simple interest at the rate of 10% per annum shall accrue on the
unpaid principal balance of the judgment calculated from the date the unpaid
amount became due.
2. Plaintiff and Defendant agree that the Stipulated Judgment in
the form attached hereto as Exhibit "1" may be filed with the Court if Defendant
fails to comply with the payment terms of the Settlement Agreement.
3. The Stipulated Judgment referred to herein shall be entered
and become final for all purposes upon entry of judgment, and Defendant
expressly waives any right it may have to appeal therefrom.
4. Defendant waives notice of hearing re entry of judgment and
agrees that Stipulated Judgment can be entered on an EX PARTE application of
Plaintiff supported by a declaration setting forth the amount of the Stipulated
Judgment.
-1-
STIPULATION FOR JUDGMENT
5. In the event the Stipulated Judgment is entered against
Defendant, Plaintiff is entitled to costs and actual attorneys' fees incurred in
obtaining and enforcing the Stipulated Judgment against the party or parties
against whom judgment is entered, the amount of which may be established by
Plaintiff in the declaration submitted in support of any EX PARTE application to
enter judgment. Such costs shall include, but shall not necessarily be limited
to, all items listed under Section 1033.5(a) and Section 1033.5(b) of the
California Code of Civil Procedure in effect on the date of this Settlement
Agreement.
6. The terms and conditions of this Stipulation shall be
enforceable under Code of Civil Procedure ss. 664.6, and the Los Angeles County
Superior Court shall retain continuing jurisdiction over this action for the
purpose of enforcing any and all terms of the Stipulation and Settlement
Agreement.
IT IS SO STIPULATED.
DATED: October 23,2003
INTERPLAY ENTERTAINMENT CORP.
DATED: October 31,2003
WARNER BROS. ENTERTAINMENT INC
-2-
APPROVED AS TO FORM:
DATED: October 23, 2003 By: /s/
---------------------------
Attorneys for INTERPLAY
ENTERTAINMENT CORP.
DATED: October 28, 2003
CALDWELL, LESLIE, NEWCOMBE & PETTIT
A Professional Corporation CHRISTOPHER G.
CALDWELL JOAN MACK
By /s/ Joan Mack
---------------------------
Attorneys for WARNER BROS.
ENTERTAINMENT INC.
-3-
STIPULATION FOR JUDGMENT
EXHIBIT 21.1
INTERPLAY ENTERTAINMENT CORP.
SUBSIDIARIES OF THE COMPANY
STATE OR OTHER JURISDICTION
ENTITY NAME OF INCORPORATION
----------- ----------------
GamesOnline.com, Inc. Delaware
Interplay OEM, Inc. California
Interplay Co. Ltd. Japan
Interplay Productions Limited U.K.
Interplay Productions Pty Ltd. Australia
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Shareholders
Interplay Entertainment Corp. and Subsidiaries
We consent to the incorporation by reference in the registration statements
(Form S-8 No. 333-50254, Form S-8 No. 333-60583, Form S-3 No. 333-50252, Form
S-3 No. 333-59088 and Form S-3 No. 333-60272) of Interplay Entertainment Corp.
and Subsidiaries of our report dated March 25, 2004 relating to the consolidated
financial statements and schedule, which report appears in the December 31, 2003
annual report on Form 10-K of Interplay Entertainment Corp. (a majority-owned
subsidiary of Titus Interactive S.A.) and Subsidiaries for the years ended
December 31, 2003 and 2002.
/S/ SQUAR, MILNER, REEHL & WILLIAMSON, LLP
April 26, 2004
EXHIBIT 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statements
(Form S-8 No. 333-50254) pertaining to the Amended and Restated 1997 Stock
Incentive Plan and Employee Stock Purchase, and (Form S-8 No. 333-60583)
pertaining to the Employee Stock Purchase Plan, Amended and Restated 1997 Stock
Incentive Plan, Incentive Stock Option and Nonqualified Stock Option Plan 1994,
Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase
Plan 1991, and Lehrberg Employment Agreement, and the Registration Statements
and Related Prospectuses (Form S-3 No. 333-50252) pertaining to the registration
of 11,256,511 shares of common stock, (Form S-3 No. 333-59088) pertaining to the
registration of 12,283,020 shares of common stock, and (Form S-3 No. 333-60272)
pertaining to the registration of 28,715,970 shares of common stock of Interplay
Entertainment Corp., of our report dated March 18, 2002, with respect to the
consolidated financial statements and schedule of Interplay Entertainment Corp.
(a majority owned subsidiary of Titus Interactive S.A.) and Subsidiaries for the
year ended December 31, 2001 included in this Annual Report (Form 10-K) for the
year ended December 31, 2003.
/s/ Ernst & Young LLP
Orange County, California
April 26, 2004
EXHIBIT 31.1
Certification of CEO Pursuant to
Securities Exchange Act Rules 13a-14 and 15d-14
as Adopted Pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
I, Herve Caen, certify that:
1. I have reviewed this annual report on Form 10-K of Interplay
Entertainment Corp.;
2. Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as
of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
a) designed such disclosure controls and procedures, or caused
such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure
controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and
c) disclosed in this report any change in the registrant's
internal control over financial reporting that occurred during the registrant's
most recent fiscal quarter (the registrant's fourth fiscal quarter in the case
of an annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial reporting;
5. The registrant's other certifying officers and I have disclosed,
based on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of registrant's
board of directors (or persons performing the equivalent function):
a) all significant deficiencies and material weaknesses in the
design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information; and
b) any fraud, whether or not material, that involves
management or other employees who have a significant role in the registrant's
internal control over financial reporting.
Securities Exchange Act Rules 13a-14 and 15d-14
as Adopted Pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
I, Herve Caen, certify that:
1. I have reviewed this annual report on Form 10-K of Interplay
Entertainment Corp.;
2. Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as
of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and we have:
a) designed such disclosure controls and procedures, or caused
such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this annual report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure
controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and
c) disclosed in this report any change in the registrant's
internal control over financial reporting that occurred during the registrant's
most recent fiscal quarter (the registrants fourth fiscal quarter in the case of
an annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial reporting;
5. The registrant's other certifying officers and I have disclosed,
based on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of registrant's
board of directors (or persons performing the equivalent function):
a) all significant deficiencies and material weaknesses in the
design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control over
financial reporting.
CERTIFICATION
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
(SUBSECTIONS (a) AND (b) OF SECTION 1350, CHAPTER 63 OF TITLE 18,
UNITED STATES CODE)
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a)
and (b) of section 1350, chapter 63 of Title 18, United States Code), the
undersigned officer of Interplay Entertainment Corp., a Delaware corporation
(the "Company"), does hereby certify with respect to the Annual Report of the
Company on Form 10-K for the fiscal year ended December 31, 2003 as filed with
the Securities and Exchange Commission (the "10-K Report") that:
(1) the 10-K Report fully complies with the requirements of section 13(a)
or 15(d) of the Securities Exchange Act of 1934; and
(2) the information contained in the 10-K Report fairly presents, in all
material respects, the financial condition and results of operations
of the Company.
Date: April 26, 2004
/s/ Herve Caen
-------------------------------
Herve Caen
Chief Executive Officer and
Interim Chief Financial Officer
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