0001011438-01-500211.txt : 20011009 0001011438-01-500211.hdr.sgml : 20011009 ACCESSION NUMBER: 0001011438-01-500211 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20010906 ITEM INFORMATION: Other events FILED AS OF DATE: 20010921 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INTERPLAY ENTERTAINMENT CORP CENTRAL INDEX KEY: 0001057232 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 330102707 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-24363 FILM NUMBER: 1741618 BUSINESS ADDRESS: STREET 1: 16815 VON KARMAN AVE CITY: IRVINE STATE: CA ZIP: 92606 BUSINESS PHONE: 9495536655 MAIL ADDRESS: STREET 1: 16815 VON KARMAN AVE CITY: IRVINE STATE: CA ZIP: 92606 8-K 1 form8-k.txt 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported) September 6, 2001 INTERPLAY ENTERTAINMENT CORP. (Exact name of registrant as specified in its charter) Delaware 333-60272 33-0102707 (State or other jurisdiction (Commission File Number) (IRS Employer of incorporation) Identification No.) 16815 Von Karman Avenue, Irvine, CA 92606 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (949) 553-6655 ITEM 5. - OTHER EVENTS On September 11, 2001, Interplay Entertainment Corp. (the "Company") announced the signing by the Company of an agreement (the "Support Agreement") with its largest stockholder, Titus Interactive, S.A. ("Titus"), to nominate a slate of individuals for election as directors at the Company's annual meeting of stockholders held September 18, 2001. As part of the Support Agreement, three of the Company's existing directors resigned, and three new directors nominated by Titus were appointed by the remaining directors to fill the three vacancies. The new Board of Directors consists of five individuals nominated by Titus, and two directors previously nominated by management who will continue to serve until the annual meeting. In addition to agreeing to the change in composition of the Board of Directors, the Company also agreed to retain Europlay 1, LLC as its exclusive advisor to effect a restructuring of Interplay, with compensation to be determined at a level at least equal to the compensation paid to industry leading advisory firms for similar services. As part of the Support Agreement, Titus procured the agreement from its wholly-owned subsidiary, Virgin Interactive Entertainment Ltd., the Company's exclusive distributor in Europe, to waive its rights with respect to distribution of the Company's Neverwinter Nights title in Europe, in exchange for the Company obtaining an advance royalty payment from a particular alternative distributor of at least $2 million. The Company has as yet not reached an agreement with that alternative distributor as to the advance royalty payment, and Virgin Interactive Entertainment Ltd. has agreed to extend its waiver through September 22, 2001. Titus also agreed to cooperate with the Company to raise additional financing, and released any claims against members of the Company's Board of Directors arising from their performance of their duties as directors, with the exception of the Titus nominees. The Company and Titus agreed that, except with respect to existing agreements and the engagement of Europlay 1, LLC as the Company's financial advisor, any material agreement between Interplay and Titus or its affiliates that occurs prior to the closing by Interplay of one or more financings totaling at least $5 million, will require the approval of a committee of disinterested directors. Titus also agreed to use its commercially reasonable efforts to cause Interplay to maintain in effect for five years a directors' and officers' liability policy and a "tail" policy, provided the annual cost to Interplay for such policies is no more than 300% of the annual cost of policies in effect at the time the Support Agreement was executed. The Company also agreed to appoint Nathan Peck as its interim Chief Administrative Officer. Pursuant to the Support Agreement, the Company amended its bylaws to provide that the number of directors may be fixed by a majority of directors, instead of the previously required unanimous vote. The number of directors currently authorized remains at seven, while six are nominated for election at the annual meeting. Robert Sirotek, Richard Lehrberg and Stanley Roach were the resigning directors, while Michel Welter, Nathan Peck and Michel Henri Vulpillat were elected to fill the vacancies, joining continuing directors Brian Fargo, Herve Caen, Eric Caen and Keven Baxter. The slate of individuals nominated by the Board of Directors for election at the annual meeting of stockholders held on September 18, 2001, were Herve Caen, Eric Caen, Nathan Peck, Michel Welter, Brian Fargo and Michel Henri Vulpillat. Page 2 Titus owns 19,496,561 shares of common stock, which constitutes approximately 43.4% of the total outstanding common stock of the Company. In addition, Titus holds 383,354 shares of Series A preferred stock, which depending upon the conversion ratio set forth in the Company's Certificate of Designation, upon conversion likely would result in Titus owning a majority of the Company's issued and outstanding shares of common stock. As of September 18, 2001, Titus controls approximately 57.9% of the voting securities of the Company. Copies of the Support Agreement, the Waiver of First Refusal Rights for Neverwinter Nights, and the press release announcing the signing of the Support Agreement, are attached hereto as Exhibits 10.1, 10.2 and 99.1, respectively. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. INTERPLAY ENTERTAINMENT CORP. September 20, 2001 /S/ HERVE CAEN --------------------------------- Herve Caen President Page 3 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION 10.1 Support Agreement, dated as of September 5, 2001, by and between Interplay Entertainment Corp., and Titus Interactive, S.A., and certain directors of Interplay Entertainment Corp. 10.2 Waiver of First Refusal Rights for Neverwinter Nights dated September 12, 2001. 99.1 Press Release dated September 11, 2001. Page 4 EX-10 3 ex10-1.txt EXHIBIT 10.1 EXHIBIT 10.1 SUPPORT AGREEMENT THIS SUPPORT AGREEMENT (this "AGREEMENT") is made and entered into as of September 5, 2001, by and among INTERPLAY ENTERTAINMENT CORP., a Delaware corporation (the "INTERPLAY"), TITUS INTERACTIVE SA, a French corporation ("TITUS"), and each of the Interplay Designated Directors (as defined in Section 1 below). Titus, Interplay and the Interplay Designated Directors are herein collectively referred to as the "PARTIES." RECITALS A. Titus is the record holder of 19,474,761 shares of Common Stock and 383,353 shares of Series A Preferred Stock of Interplay entitled to cast votes at the next Annual Meeting of Stockholders of Interplay scheduled for September 18, 2001 (the "2001 MEETING"). B. Titus has previously nominated five directors for election at the 2001 Meeting and regardless of the number of shares present and voting at the 2001 meeting, may have the ability to elect at least a majority of the Board of Directors at the 2001 Meeting. C. Titus has announced that if it is successful in electing a majority of the Board of Directors at the 2001 Annual Meeting, Titus will attempt to make changes in the senior management of Interplay. D. Titus desires that the composition of the Board of Directors of Interplay (the "Board") be modified in advance of the 2001 Meeting. E. The Parties desire to enter into this Agreement to provide for modification of the composition of the Board of Directors of Interplay in advance of the 2001 Meeting. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and subject to the conditions set forth herein, the parties agree as follows: 1. RELEASE BY TITUS. 1.1 Effective as of and conditional upon the occurrence of the Closing, and subject to the full and complete satisfaction by Interplay of its obligations under this Agreement and the agreements attached to this Agreement, Titus, for itself and for its agents, successors-in-interest and assigns, irrevocably and unconditionally releases and forever discharges Brian Fargo, Robert Sirotek, Richard Lehrberg, Stanley Roach and Keven Baxter (each an "INTERPLAY DESIGNATED DIRECTOR" and collectively, the "INTERPLAY DESIGNATED DIRECTORS"), and each of them, from any and all causes of action, claims, actions, rights, judgments, attorneys' fees, obligations, damages, demands, accountings or liabilities of whatever kind and character, whether now known or unknown, suspected or unsuspected, existing as of the date hereof, which Titus has or may have against the Interplay Designated Directors, and each of them, only with respect to, arising under or in connection with (and none other), the actions and omissions undertaken in their capacity as directors of Interplay prior to and through and including the date of this Agreement. 1.2 Titus agrees that each Interplay Designated Director is a direct beneficiary with respect to each provision of this Agreement applicable to such Interplay Designated Director and may enforce each of these provisions. 1.3 Titus represents and warrants to the Interplay Designated Directors as of the date of this Agreement and as of the Closing Date that it has not assigned nor subrogated any of said rights, claims and causes of action referenced in this SECTION 1, or authorized any other person or entity to assert any of these claims on its behalf. 1.4 Effective as of and conditional upon the occurrence of the Closing, Titus agrees and covenants never to, and, except as required by law or judicial process, agrees and covenants that is shall not assist or encourage third parties in any manner to, file a lawsuit, arbitration proceeding or any other administrative proceeding against any Interplay Designated Director for any causes of action, claims, actions, rights, judgments, obligations, damages, demands, accountings or liabilities of whatever kind and character released and discharged by such party pursuant to this Agreement. 1.5 It is the intention of Titus that this Agreement shall be effective as a full and final accord and satisfaction and release of all of the claims and judgments specifically released pursuant to SECTION 1 of this Agreement. Titus hereby acknowledges that it has read and is familiar with California Civil Code Section 1542 which states as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEAS E, WHICH IF KNOWN TO HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." Effective as of and conditional upon the occurrence of the Closing, Titus does hereby expressly waive and relinquish all rights and benefits which it has or may have under California Civil Code Section 1542 (or any similar law of any other country, state, territory or jurisdiction) to the fullest extent that it may lawfully waive such rights and benefits. In connection with the waiver and relinquishment set forth in this SECTION 1, Titus acknowledges that it is aware that it may hereafter discover facts in addition to and/or different from those now known or believed to be true with respect to the subject matter of this Agreement, but that notwithstanding that fact, it is Titus' intention hereby to fully, finally, and forever release all of the claims released herein, known or unknown, suspected or unsuspected, which now exist, may in the future exist or heretofore have existed between each respective party, on the one hand, and those parties, persons and entities granted releases by it, on the other hand, and that in furtherance of such intention, the releases given herein shall be and remain in effect as full and complete releases, notwithstanding the discovery or existence of any such additional or different facts. 2. ADDITIONAL COVENANTS OF INTERPLAY. Effective as of and conditional upon the occurrence of the Closing, and subject to the full and complete satisfaction by Titus of its obligations under this Agreement, Interplay covenants and agrees with Titus as follows: Page 2 2.1 PROXY STATEMENT. Interplay shall file with the Securities and Exchange Commission and mail to stockholders of Interplay a Notice of Annual Meeting for the 2001 Meeting as soon as possible but in any event no later than Friday, September 7, 2001, which notice shall be accompanied by a Proxy Statement and Proxy Card that solicits from Interplay stockholders proxies for the election of the Continuing Directors (as defined below), among other matters. Interplay shall cause the proxy identified in the Proxy Card to vote the shares that are the subject of such stockholder proxies which have indicated a vote "FOR" the Continuing Directors, for the election of the Continuing Directors at the 2001 Meeting. 2.2 FURTHER ASSURANCES. Interplay agrees that it shall at its own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to carry out the intent and purposes of this Agreement and to cause the timely satisfaction on or before 7:00 p.m. Pacific time on September 5, 2001 of each of the conditions to the obligations of Titus set forth in SECTION 4.2 below. 2.3 ENGAGEMENT OF EUROPLAY. Interplay hereby engages Europlay 1, LLC ("EUROPLAY") as its exclusive advisor to assist the Board of Directors to effect a restructuring of Interplay following the Closing, including assistance with respect to hiring a new executive team, reductions in staff, analysis and development of restructuring plans, debt restructure advice, oversight of the LaSalle relationship, negotiations with licensors to assist in the preservation of key Interplay licenses, review and development of a new business plan, and the introduction of investment banks and underwriters to Interplay to assist in the private placement of equity securities. Interplay will provide indemnification to Europlay, and the liability of Europlay to Interplay will be equivalent to the most favorable terms of indemnification and limitation of liability as have been provided by Interplay to any investment banking firm engaged by Interplay during the twelve months preceding the date hereof. Europlay's compensation shall be negotiated by Interplay and Europlay as soon as practicable following the Closing, but in any event within 5 days following the Closing, and shall be at least equal to the compensation paid to industry leading advisory firms for similar services; provided, however, that if a majority of the Board of Directors of Interplay is unable to agree on the level of compensation payable to Europlay for such services consistent with the terms hereof, such compensation shall be determined by a panel of three of investment banks, one selected by Europlay, one selected by Interplay, and the third selected by two investment banks selected by each of Europlay and Interplay. Europlay shall be deemed to be a third party beneficiary with respect to the terms of this SECTION 2.3 and shall have the right to enforce this SECTION 2.3 as if a party to this Agreement. 3. ADDITIONAL COVENANTS OF TITUS. Effective as of and conditional upon the occurrence of the Closing, and subject to the full and complete satisfaction by Interplay of its obligations under this Agreement, Titus covenants and agrees with Interplay as follows: 3.1 FINANCING ASSISTANCE. Titus will cooperate with Interplay and work diligently with Interplay and its management to conclude a private placement by Interplay of its debt or equity securities as soon as possible following the Closing. Titus will advise the Board of Directors of Interplay from time to time of the status of its financing efforts on Interplay's behalf, and will timely provide the Board of Directors with all material information concerning Titus' financing efforts. 3.2 INDEPENDENT DIRECTOR COMMITTEE. Titus agrees that, except for carrying out executory transactions in accordance with agreements currently existing (PROVIDED, that any material Page 3 amendment or material waiver of existing agreements or the terms thereof do require the approval of the committee as set forth herein) between Interplay and Titus or its affiliates, including Virgin Interactive Entertainment Limited ("VIRGIN"), the approval of a committee of disinterested directors shall be required for any transaction involving Interplay, on the one hand, and Titus or its affiliates, including Virgin, on the other hand, that occurs prior to the closing by Interplay of one or more sales of its debt and/or equity securities which raises aggregate gross proceeds to Interplay of at least $5,000,000. Prior to the 2001 Meeting, the committee shall be comprised of Michel Welter and Keven Baxter, and after the 2001 Meeting the committee shall be comprised of Michel Welter and Brian Fargo. Notwithstanding the foregoing, the approval of the committee of disinterested directors shall not be required with respect to matters related to the engagement by Interplay of Europlay as a financial advisor. 3.3 D&O INSURANCE. Provided that Titus is able to elect a majority of the Board of Directors of Interplay, Titus will use its commercially reasonable efforts to cause Interplay to maintain in effect, and Interplay agrees to maintain in effect, for a period of 5 years from the Closing a directors' and officers' liability insurance policy with coverage equal to or better than that provided by the Interplay policy as currently in effect, as well as a "tail" policy for an extended reporting period covering claims arising from incidents occurring during the coverage period for the current or last effective policy, provided that the annual cost to Interplay for such policies is no more than 300% of the annual cost of the Interplay policy as currently in effect. 3.4 FURTHER ASSURANCES. Titus agrees that it shall at its own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to carry out the intent and purposes of this Agreement and to cause the timely satisfaction on or before 7:00 p.m. Pacific time on September 5, 2001 of each of the conditions to the obligations of Interplay set forth in SECTION 4.3 below. 4. CLOSING AND CLOSING CONDITIONS. 4.1 CLOSING. The closing of the transactions contemplated by this Agreement (the "Closing") shall take place on the day that the conditions to the Closing set forth in SECTIONS 4.2 and 4.3 of this Agreement shall have been satisfied or waived (by the party entitled to waive the same), or at such other place or time as Titus and Interplay shall mutually agree. The date of the Closing is referred to in this Agreement as the "CLOSING DATE." 4.2 CONDITIONS TO TITUS' OBLIGATIONS. The obligations of Titus under this Agreement are subject to the satisfaction of the following conditions, any of which may be waived in writing in whole or in part by Titus: 4.2.1 Robert Sirotek, Richard Lehrberg and Stanley Roach shall have resigned from the Board of Directors of Interplay immediately prior to the Closing. 4.2.2 The By-Laws of Interplay shall have been amended, conditional upon the Closing, to provide that the number of directors may be fixed by the vote of a majority of the directors. Page 4 4.2.3 Michel Welter, Nathan Peck and Michel Henri Vulpillat shall have been appointed to the Board of Directors of Interplay to fill the vacancies created by the resignations of Messrs. Sirotek, Lehrberg and Roach. 4.2.4 If there are any other resignations of directors on the Board of Directors, the vacancy created thereby either shall remain vacant or shall be filled by the remaining members of the Board of Directors. 4.2.5 Interplay shall have appointed Nathan Peck as its interim Chief Administrative Officer. 4.2.6 The Board of Directors of Interplay shall have nominated each of Herve Caen, Eric Caen, Nathan Peck, Michel Welter, Brian Fargo and Michel Henri Vulpillat (the "CONTINUING DIRECTORS") for election as directors at the 2001 Meeting, and the Board resolutions approving such nominees for election at the 2001 Meeting shall provide that any change in the nominees will be effective only with the unanimous approval of the Board of Directors. 4.2.7 Titus shall have received a certificate from the Secretary of Interplay certifying to the satisfaction of the conditions set forth in this Section 4.2. 4.3 CONDITION TO INTERPLAY'S OBLIGATIONS. The obligations of Interplay under this Agreement are subject to the satisfaction of the following conditions, any of which may be waived in writing in whole or in part by Interplay: 4.3.1 NEVERWINTER NIGHTS. Titus shall have procured the agreement of Virgin to waive Virgin's refusal rights with respect to the distribution by Infogrames, Inc. of the Neverwinter Nights title in the territory that is the subject of Interplay's International Distribution Agreement with Virgin on terms that provide for the payment by Infogrames, Inc. to Interplay on or before September 10, 2001 of an advance against royalties of at least $2,000,000. Titus acknowledges that the cash amount received from Infogrames may be net of amounts owed by Interplay to Infogrames. 5. TERMINATION. This Agreement may be terminated and the transactions herein contemplated may be abandoned at any time: 5.1 by Titus if any of the conditions in SECTION 4.2 have not been satisfied on or before 7:00 p.m. Pacific time on September 5, 2001 (the "EXPIRATION DATE") (other than through the failure of Titus to comply with its obligations under this Agreement) and Titus has not expressly waived such condition in writing on or before the Expiration Date; or 5.2 by Interplay if any of the conditions in SECTION 4.3 have not been satisfied on or before the Expiration Date (other than through the failure of Interplay to comply with its obligations under this Agreement) and Interplay has not expressly waived such condition in writing on or before the Expiration Date. 6. MISCELLANEOUS. 6.1 NOTICES. All notices, requests, demands and other communications (collectively, "NOTICES") given pursuant to this Agreement shall be in writing, and shall be delivered Page 5 by personal service, courier, facsimile transmission (which must be confirmed) or by United States first class, registered or certified mail, postage prepaid, to the following addresses: (a) if to Titus, to: Titus Interactive SA c/o Titus Software Corporation 20432 Corisco Street Chatsworth, California 91311 Attention: Mr. Herve Caen, Chairman and Chief Executive Officer Telecopier: (818) 709-6537 with copies to: Titus Interactive SA Parc de l'esplanade 12, Rue Enrico Fermi Saint Thibault des Vignes 77462 Lagny sur Marne Cedex France Attention: Mr. Eric Caen, President Telecopier: 011-33-1-60-31-59-60 and Murray Markiles, Esq. Akin, Gump, Strauss, Hauer & Feld, L.L.P. 2029 Century Park East - 24th Floor Los Angeles, California 90067-3010 Telecopier: (310) 728-2233 (b) if to Interplay, to: Interplay Entertainment Corp. 16815 Von Karman Avenue Irvine, California 92606 Attention: Mr. Brian Fargo, Chairman and Chief Executive Officer Telecopier: (949) 252-0667 with a copy to: K.C. Schaaf, Esq. Stradling Yocca Carlson & Rauth, a professional corporation 660 Newport Center Drive, Suite 1600 Newport Beach, California 92660 Telecopier: (949) 725-4100 Any Notice, other than a Notice sent by registered or certified mail, shall be effective when received; a Notice sent by registered or certified mail, postage prepaid return receipt requested, shall be Page 6 effective on the earlier of when received or the third day following deposit in the United States mails. Any party may from time to time change its address for further Notices hereunder by giving notice to the other parties in the manner prescribed in this Section. 6.2 ENTIRE AGREEMENT. This Agreement contains the sole and entire agreement and understanding of the parties with respect to the entire subject matter of this Agreement, and any and all prior discussions, negotiations, commitments and understandings, whether oral or otherwise, related to the subject matter of this Agreement are hereby merged herein. 6.3 ASSIGNMENT. No party may assign this Agreement, and any attempted or purported assignment or any delegation of any party's duties or obligations arising under this Agreement to any third party or entity shall be deemed to be null and void, and shall constitute a material breach by such party of its duties and obligations under this Agreement. 6.4 WAIVER AND AMENDMENT. No provision of this Agreement may be amended or waived unless in writing signed by Interplay, Titus and at least a majority of the Interplay Designated Directors, and waiver of any one provision of this Agreement shall not be deemed to be a waiver of any other provision. 6.5 SURVIVAL. The agreements contained herein which by their terms survive the Closing shall survive the Closing and Closing Date in accordance with their terms, are intended to benefit each of Titus, Interplay and the Interplay Designated Directors, and shall be binding on all successors and assigns of Interplay and Titus and shall be enforceable by each of the Parties and its or his heirs and representatives. 6.6 GOVERNING LAW; JURISDICTION. This Agreement has been made and entered into in the State of California and shall be construed in accordance with the laws of the State of California without giving effect to the principles of conflicts of law thereof. In the event of any action, suit or proceeding brought under or in connection with this Agreement exclusive venue and jurisdiction shall lie with the state and federal courts sitting in the County of Orange, State of California. 6.7 SEVERABILITY. Whenever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be or become prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. 6.8 CAPTIONS. The various captions of this Agreement are for reference only and shall not be considered or referred to in resolving questions of interpretation of this Agreement. 6.9 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. 6.10 COSTS AND ATTORNEYS' FEES. If any action, suit, arbitration or other proceeding is instituted to remedy, prevent or obtain relief from a default in the performance by any party to this Agreement of its obligations under this Agreement, the prevailing party shall recover all of such party's attorneys' fees incurred in each and every such action, suit, arbitration or other Page 7 proceeding, including any and all appeals or petitions therefrom. As used in this Section, attorneys' fees shall be deemed to mean the full and actual costs of any legal services actually performed in connection with the matters involved calculated on the basis of the usual fee charged by the attorney performing such services and shall not be limited to "reasonable attorneys' fees" as defined in any statute or rule of court. 6.11 JUDICIAL INTERPRETATION. Should any provision of this Agreement require judicial interpretation, it is agreed that a court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against any person by reason of the rule of construction that a document is to be construed more strictly against the person who itself or through its agent prepared the same, it being agreed that all parties have participated in the preparation of this Agreement. 6.12 FORCE MAJEURE. If any party to this Agreement is delayed in the performance of any of its obligations under this Agreement or is prevented from performing any such obligations due to causes or events beyond its control, including, without limitation, acts of God, fire, flood, earthquake, strike or other labor problem, injunction or other legal restraint, present or future law, governmental order, rule or regulation, then such delay or nonperformance shall be excused and the time for performance thereof shall be extended to include the period of such delay or nonperformance. (SIGNATURES ON FOLLOWING PAGE) Page 8 IN WITNESS WHEREOF, this Agreement has been made and entered into as of the date and year first above written. INTERPLAY ENTERTAINMENT CORP., a Delaware corporation By: /S/ BRIAN FARGO ------------------------- Brian Fargo Its: Chief Executive Officer TITUS INTERACTIVE SA, a French corporation By: /S/ HERVE CAEN ------------------------- Herve Caen Its: Chief Executive Officer INTERPLAY DESIGNATED DIRECTORS: /S/ STANLEY ROACH -------------------------------- Stanley Roach /S/ ROBERT SIROTEK -------------------------------- Robert Sirotek /S/ RICHARD LEHRBERG -------------------------------- Richard Lehrberg /S/ KEVEN BAXTER -------------------------------- Keven Baxter /S/ BRIAN FARGO -------------------------------- Brian Fargo Page 9 EX-10 4 ex10-2.txt EXHIBIT 10.2 EXHIBIT 10.2 September 12, 2001 Nathan Peck Chief Administrative Officer Interplay Entertainment Corp. 16815 Von Karman Ave. Irvine, CA 92606 Re: WAIVER OF FIRST REFUSAL RIGHTS FOR NEVERWINTER NIGHTS Dear Mr. Peck: We are in receipt of the Heads of Agreement (Software Distribution and Sales), dated July 25, 2001, between Interplay Entertainment Corp. ("Interplay") and Infogrames, Inc. ("Infogrames"), and are familiar with the terms of the option (the "Option") contained in Section 9 of the Heads of Agreement. As you are aware, under the terms of our International Distribution Agreement, dated February 10, 1999, between Interplay and Virgin Interactive Entertainment Limited ("Virgin"), as amended (the "Distribution Agreement"), Virgin has a first refusal on any sale by Interplay or exclusive license by Interplay involving North America and Europe of up two (2) "Products" (as defined in the Distribution Agreement) in any twelve (12) months period. You have requested that we decline to exercise our first refusal rights so that you may offer to make available to Infogrames the title "Neverwinter Nights" for distribution by them in the Virgin Territory (as defined in the Heads of Agreement accordance with the terms of the Option. Virgin will decline to exercise its first refusal rights on the terms contained herein. Virgin hereby declines to exercise its first refusal rights with respect to the license by Interplay to Infogrames of exclusive distribution rights to the title "Neverwinter Nights" in the Virgin Territory in accordance with the terms of the Option, provided, however, that this waiver shall only be effective if Infogrames exercises the Option for the entire Virgin Territory before 5:00 p.m. on Saturday, September 22, 2001. If these conditions are not satisfied, this waiver shall have no force or effect, and Virgin reserves the right (but shall not have any obligation) to exercise its first refusal rights for Neverwinter Nights in accordance with its agreement with Interplay. The terms of this letter shall be construed and enforced in accordance with California law, without regard to conflicts of laws principles. If the above terms set forth our complete agreement on this subject matter, please counter-sign this letter below and deliver the countersigned letter to me by facsimile. Signed: VIRGIN INTERACTIVE ENTERTAINMENT LIMITED By: /S/ HERVE CAEN -------------------------- Its: Director ------------------------- Agreed: INTERPLAY ENTERTAINMENT CORP. By: /S/ NATHAN PECK -------------------------- Its: CAO ------------------------ EX-99 5 ex99-1.txt EXHIBIT 99.1 EXHIBIT 99.1 FOR IMMEDIATE RELEASE INTERPLAY ANNOUNCES CHANGE IN BOARD COMPOSITION AND RETENTION OF ADVISOR TO EFFECT RESTRUCTURING OF COMPANY. IRVINE CALIFORNIA, SEPT 11, 2001: Interplay Entertainment Corp. (IPLY) today announced a change in the composition of its Board of Directors and additions to its senior management team in advance of its annual meeting of stockholders scheduled for September 18, 2001. In addition to agreeing to the change in composition of the Board of Directors, the Company also retained Europlay 1, LLC as its exclusive advisor to effect a restructuring of Interplay. Under an agreement reached following negotiations with Interplay's largest stockholder, Titus Interactive, S.A., a French video games publisher that trades on the Nouveau Marche, Interplay has nominated a slate of individuals for election as directors at Interplay's annual meeting of stockholders. As part of the agreement, three of the Company's existing directors resigned, and three new directors nominated by Titus were elected to fill the vacancies. The new Board of Directors consists of five individuals nominated by Titus, and two directors, including Brian Fargo, previously nominated by management, who will continue to serve until the annual meeting. Europlay 1, an advisory firm lead by senior executives with over 30 years of experience in the interactive entertainment business, has been provided a mandate to undertake a restructuring of the company and oversee enhancement of the management team of Interplay. "The new team brings tremendous expertise and management skills which we expect will enhance the ability of Interplay to improve its operating results, relations with distributors, licensors, developers and talented employees," according to Herve Caen, Interplay's President. According to Phil Adam, Vice President of Business Development "the Company has several promising high-profile products in development. I believe the development talent available to Interplay is second-to-none, and the new personnel and new perspectives we have added will help us to exploit our key properties going forward." Gary Dawson, Vice President of Sales and Marketing, adds "demand for our products has always been strong, with our new team, we now expect to implement additional management controls that we believe will enhance the timeliness of our shipping." Interplay is a developer, publisher and distributor of interactive entertainment software for both core gamers and the mass market. The Company has been long regarded as a leader in the action/arcade, adventure/RPG and strategy/puzzle category with several franchise video game titles. The Company holds licenses for interactive rights based on popular brands including: Advanced Dungeons and Dragons, Star Trek and Caesars Palace. The Company currently develops and publishes products compatible with multiple variations of the PC platform including Microsoft Windows, and for video game consoles such as the Sony PlayStation and PlayStation 2. The Company also develops and has plans to publish products for the Microsoft Xbox and Nintendo GameCube video game consoles, which are scheduled for release in 2002. Titus owns 100 percent of Virgin Interactive Entertainment, and is developing product under interactive rights licenses to several well-known properties including: Top Gun, Robocop, Xena, and Kasparov, for certain video game platforms. Titus, currently generates half of its turnover in Europe and the other half in north America and Asia, posted annual sales of 172.1 million euros ($156.7 million) in its 2000/01 fiscal year ended June 30, 2001. Interplay releases products through Interplay, Shiny Entertainment, Digital Mayhem, Black Isle Studios, 14 Degrees East, its distribution partners and its wholly owned subsidiary Interplay OEM, Inc. More comprehensive information on Interplay and its products is available through its worldwide web site at HTTP://WWW.INTERPLAY.COM. For investor relations' inquiries, please contact Patrick Sutton (PAT@LIOLIOS.COM) or Christopher Rosgen (CHRIS@LIOLIOS.COM) at Liolios Group, Inc. (949) 574-3860. Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995: Statements contained in this release except for historical information are forward-looking statements that are based on current expectations and involve risks and uncertainties. Without limiting the generality of the foregoing, words such as "may," "will," "expect," "believe," "anticipate," "intend," "could," "estimate," or "continue" or the negative or other variations thereof or comparable terminology are intended to identify forward-looking statements. The risks and uncertainties inherent in such statements may cause actual future events or results to differ materially and adversely from those described in the forward-looking statements. For example, Interplay's ability to continue as a going concern is dependant on securing external sources of funding to continue operations. In addition, there can be no assurance that the Company will be successful in completing any strategic alliances, licensing transactions, and financings, or that the Company's current scheduled titles will ship in the projected time frame or that they will be as popular as the Company presently anticipates, that the Company will be able to achieve its projected continued revenues from its existing titles, or that the Company will be able to increase the number of console titles it releases. Additional important factors that may cause a difference between projected and actual results for Interplay include, but are not limited to, future capital requirements, that equity or bank financing will be available on terms satisfactory to the company or at all, risks of loss of the Company's listing on the Nasdaq National Market, risk of delays in development and introduction of new products, dependence on new product introduction which achieve significant market acceptance and the uncertainties of consumer preferences, risks of product returns and markdown allowances, dependence on third party software developers for a significant portion of new products, risks of rapid technological change and platform change, intense competition, seasonality, risks of product defects and resulting returns, dependence upon licenses from third parties, risks associated with, dependence upon third party distribution, dependence upon key personnel and risks associated with international business, intellectual property disputes and other factors discussed in the Company's filings from time to time with the Securities and Exchange Commission, including but not limited to the Company's annual reports on Form 10-K and the Company's subsequent quarterly filings on Form 10-Q. Interplay disclaims any obligation to revise or update any forward-looking statements that may be made from time to time by it or on its behalf. Note: All trademarks and copyrights are the property of their respective owners. SOURCE: INTERPLAY ENTERTAINMENT CORP.