AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 1998
REGISTRATION NO. 333-23471
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACCLAIM ENTERTAINMENT, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 38-2698904
(STATE OR OTHER JURISDICTION OF (I.R.S. Employer
INCORPORATION OR ORGANIZATION) Identification Number)
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ONE ACCLAIM PLAZA
GLEN COVE, NEW YORK 11542
(516) 656-5000
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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GREGORY E. FISCHBACH
CHIEF EXECUTIVE OFFICER
ACCLAIM ENTERTAINMENT, INC.
ONE ACCLAIM PLAZA
GLEN COVE, NEW YORK 11542
(516) 656-5000
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
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Copy to:
JAYSHREE PARTHASARATHY, ESQ.
ROSENMAN & COLIN LLP
575 MADISON AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 940-8800
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
reinvestment plans, please check the following box. /x/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT
TO BE AGGREGATE AGGREGATE OF
TITLE OF SHARES TO BE REGISTERED REGISTERED PRICE PER SHARE(1) OFFERING PRICE(2) REGISTRATION FEE
Common stock, par value $0.02 per share.... 1,775,400 shares $3.97 to $4.0625 $7,212,562.50 $2,128
(1) Of the 1,775,400 shares being offered, 200,000 of the shares are being
offered at an exercise price of $3.97 per share. The remaining shares
are being offered based upon prevailing market prices.
(2) Estimated pursuant to Rule 457(c) promulgated under the Securities Act of
1933, solely for the purpose of determining the registration fee, based
on the average of high and low prices of the Common Stock as quoted on
The NASDAQ Stock Market on January 21, 1998.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THAT THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JANUARY 28, 1998
PROSPECTUS
1,775,400 SHARES
ACCLAIM ENTERTAINMENT, INC.
COMMON STOCK
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Of the 1,775,400 shares of common stock, par value $0.02 per share (the
'Common Stock') of Acclaim Entertainment, Inc. ('Acclaim' and, together with its
subsidiaries, the 'Company') covered by this Prospectus, up to 900,000 shares
(the 'Primary Shares') are to be issued by the Company in connection with the
settlement of certain litigations and claims, including but not limited to
matters involving the Selling Stockholder and Digital Pictures, Inc. The Company
will not receive any proceeds from the issuance of the Primary Shares. See
'Settlements.'
The remaining 875,400 shares (the 'Resale Shares') are being offered and
sold by the selling stockholders named herein. 575,400 of such shares (the
'Metos Shares') of Common Stock were originally issued by the Company to George
C. Metos ('Metos') in a privately-negotiated transaction; 100,000 of such shares
(the 'Ocean Shares') are issuable by the Company to Ocean of America, Inc.
('Ocean') in connection with the settlement of a litigation; the remaining
200,000 shares (the 'BNY Shares') of Common Stock are issuable by the Company
from time to time upon the exercise of outstanding and currently exercisable
warrants (the 'Warrants') granted to BNY Financial Corporation ('BNY'; Metos,
Ocean and BNY are collectively herein referred to as the 'Selling
Stockholders'). The Warrants entitle BNY to purchase the BNY Shares for a
purchase price of $3.97 per share. See 'Selling Stockholders' and 'Plan of
Distribution.' The Company will not receive any proceeds from the sale of any of
the Resale Shares. The proceeds of any exercise of the Warrants will be added to
the Company's working capital.
The Selling Stockholders have advised the Company that they may from time
to time sell all or a portion of the Resale Shares on The NASDAQ Stock Market or
in any other securities market on which the Common Stock is then listed or
traded, in negotiated transactions or otherwise, at prices then prevailing or
related to the then current market price or in private transactions at
negotiated prices and on terms to be determined at the time of sale. The Resale
Shares may be sold directly, through agents designated from time to time or
through broker-dealers designated from time to time. To the extent required, the
number of Resale Shares to be sold, the purchase price, the name of any such
agent or broker-dealer and any applicable commissions, discounts or other items
constituting compensation to such agents or broker-dealers with respect to a
particular offering will be set forth in a supplement or supplements to this
Prospectus. The Selling Stockholders may also sell all or a portion of the
Resale Shares pursuant to Rule 144 promulgated under the Securities Act of 1933
(the 'Securities Act'), to the extent that such sales may be made in compliance
with such Rule. See 'Plan of Distribution.' The Company knows of no selling
arrangement between any agent or broker-dealer and any of the Selling
Stockholders.
The Selling Stockholders and any broker-dealers or agents who participate
with the Selling Stockholders in the distribution of any Resale Shares may be
deemed to be 'underwriters' as such term is defined under the Securities Act and
any discount or commission received by them and any profit on the sale of the
Resale Shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act.
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SEE 'RISK FACTORS' ON PAGE 6 FOR A DISCUSSION OF CERTAIN RISK FACTORS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE SHARES OF COMMON STOCK
OFFERED HEREBY.
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The Common Stock is traded on The NASDAQ Stock Market National Market
System under the symbol 'AKLM.' On January 26, 1998, the last reported sale
price of the Common Stock was $4.125 per share.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The offering is subject to withdrawal and cancellation at any time, without
notice.
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The date of this Prospectus is January , 1998.
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY SELLING STOCKHOLDER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER
TO BUY ANY OF THE SECURITIES OFFERED HEREBY TO ANY PERSON IN ANY JURISDICTION IN
WHICH IT IS UNLAWFUL TO MAKE SUCH AN OFFERING OR SOLICITATION TO SUCH PERSON.
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TABLE OF CONTENTS
PAGE
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Available Information.......................... 2
Information Incorporated by Reference.......... 3
The Company.................................... 4
Risk Factors................................... 6
Use of Proceeds................................ 16
Legal Matters.................................. 18
Experts........................................ 18
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the Securities
Exchange Act of 1934 (the 'Exchange Act'). When used in this Prospectus, the
words 'believe,' 'anticipate,' 'think,' 'intend,' 'plan,' 'will be,' 'strategy'
and similar expressions identify such forward-looking statements. Such
statements regarding future events and/or the future financial performance of
the Company are subject to certain risks and uncertainties, including those
discussed in 'RISK FACTORS' on pages 6 to 15, which could cause actual events or
the actual future results of the Company to differ materially from any
forward-looking statement. In light of the significant risks and uncertainties
inherent in the forward-looking statements included herein, the inclusion of
such statements should not be regarded as a representation by the Company or any
other person that the objectives and plans of the Company will be achieved.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act and in accordance therewith files reports and other information with the
Securities and Exchange Commission (the 'Commission'). Such reports and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the Commission's regional offices at 7 World
Trade Center, 13th floor, New York, New York 10048 and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can be
obtained from the Public Reference Section of the Commission, 40 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. The Commission also maintains
a Web site at 'http://www.sec.gov' that contains reports, proxy and information
statements and other information regarding issuers that file electronically with
the Commission.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
'Registration Statement') under the Securities Act with respect to the
registration of the securities offered hereby. This Prospectus does not contain
all the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. Statements contained herein concerning the contents of any documents
are not necessarily complete and, in each instance, reference is made to the
copy of such document filed as an exhibit to the Registration Statement. Each
such statement is qualified in its entirety by such reference. The Registration
Statement, as well as items of information omitted from this Prospectus but
contained in the Registration Statement and reports and other information filed
by the Company, may be inspected without charge at the public reference
facilities referred to above and copies of all or any part thereof may be
obtained from the Commission upon request and payment of the prescribed fee.
2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
August 31, 1997, filed on November 19, 1997 (File No. 0-16986)
(the 'Form 10-K');
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended November 30, 1997, filed on January 14, 1998 (File No.
0-16986) (the 'Form 10-Q'); and
(c) The information in respect of the Common Stock under the caption
'Description of Registrant's Securities to be Registered'
contained in the Registration Statement on Form 8-A, filed on June
8, 1988 (File No. 0-16986), as amended by the Current Report on
Form 8-K, filed on August 25, 1989 (File No. 33-9460-C), relating
to the one-for-two reverse stock split effected by the Company.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the shares described
herein shall be deemed to be incorporated by reference into this Prospectus and
to be a part hereof from the respective dates of the filings of such documents.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated herein by reference modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company undertakes to provide, without charge, to each person,
including any beneficial owner, to whom this Prospectus is delivered, upon the
written or oral request of such person, a copy of any and all of the documents
incorporated herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference herein). Requests for
such documents should be directed to the Secretary, Acclaim Entertainment, Inc.,
One Acclaim Plaza, Glen Cove, New York 11542. Telephone requests for such copies
should be directed to the Secretary at (516) 656-5000.
3
THE COMPANY
The Company is a developer, publisher and mass marketer of interactive
entertainment software ('Software') for use with dedicated interactive
entertainment hardware platforms ('Entertainment Platforms') and multimedia
personal computer systems ('Multimedia PCs'). The Company operates its own
Software design studios and a motion capture studio, and markets and distributes
its Software in the major territories throughout the world. The Company's
operating strategy is to develop Software for the Entertainment Platforms and
Multimedia PCs that dominate the interactive entertainment market at a given
time or which the Company perceives as having the potential for achieving mass
market acceptance. The Company emphasizes sports simulation and arcade-style
titles for Entertainment Platforms, and fantasy/role-playing, adventure and
sports simulation titles for Multimedia PCs. The Company intends to continue to
support its existing key brands (such as Turok: Dinosaur Hunter, NFL Quarterback
Club '98 and World Wrestling Federation ('WWF') and NBA Jam) with the
introduction of new titles supporting those brands and to develop one or more
additional key brands each year based on its original and licensed properties,
which may then be featured on an annual basis in successive titles.
The Company also engages, to a lesser extent, in: (i) the development and
publication of comic books, which commenced in July 1994 through the acquisition
of Acclaim Comics, Inc. ('Acclaim Comics'); (ii) the distribution of Software
titles developed by other software publishers ('Affiliated Labels'), which
commenced in the first quarter of fiscal 1995; (iii) the marketing of its motion
capture technology and studio services, which commenced in the first quarter of
fiscal 1995; and (iv) the development, marketing and distribution of coin-
operated video arcade games, which commenced in May 1996. See 'Risk Factors--New
Business Ventures.'
The Company believes the Software industry is driven by the size of the
installed base of Entertainment Platforms, such as those manufactured by
Nintendo Co., Ltd. (Japan) (Nintendo Co., Ltd. (Japan) and its subsidiary,
Nintendo of America, Inc., are collectively herein referred to as 'Nintendo'),
Sony Corporation (Sony Corporation and its subsidiary, Sony Computer
Entertainment of America, are collectively herein referred to as 'Sony') and
Sega Enterprises Ltd. ('Sega'), and Multimedia PCs. The industry is
characterized by rapid technological change, resulting in Entertainment Platform
and related Software product cycles. No single Entertainment Platform or system
has achieved long-term dominance in the interactive entertainment market. See
'Risk Factors--Industry Trends; Platform Transition; Technological Change.'
The Company recorded a loss from operations of $274.5 million and $150.9
million and a net loss (on an after-tax basis) of $221.4 million and $159.2
million for fiscal 1996 and 1997, respectively. The net loss for fiscal 1996
reflects write-offs of receivables, the establishment of additional receivables
and inventory reserves, severance charges incurred in connection with the
downsizing of the Company and the reduction of certain deferred costs, as well
as an operating loss for the year resulting primarily from price protection and
similar concessions granted to retailers at greater than anticipated levels in
connection with the Company's 16-bit and 32-bit Software. The net loss for
fiscal 1997 reflects, among other things, a charge of $23.6 million for certain
claims and litigations for which the settlement obligation is currently probable
and estimable, a writedown of $25.2 million to reduce the carrying value of the
goodwill associated with Acclaim Comics to its estimated undiscounted future
cash flows, and downsizing charges of $10 million.
Based on information available in 1994 and based on its historical
experience with respect to the transition from 8-bit to 16-bit platforms, the
Company believed that Software sales for 16-bit platforms would, although
continuing to decrease overall, still dominate the interactive entertainment
market in 1995 and that such sales would remain substantial through the 1996
holiday season. Accordingly, although the Company's strategy for the Christmas
1996 season was to develop Software for multiple Entertainment Platforms and
Multimedia PCs, the Company anticipated that substantially all of its revenues
in fiscal 1995 would be derived from its 16-bit Software sales. The Company also
anticipated that its sales of 32-bit and Multimedia PC Software in fiscal 1996
would grow as compared to fiscal 1995 but that the majority of its revenues in
fiscal 1996 would still be derived from 16-bit Software sales. However, the
16-bit Software market matured much more rapidly than anticipated by the
Company, the Company's Christmas 1995 16-bit Software sales were substantially
lower than anticipated and, by April 1996, the Company derived minimal profits
from such Software sales and made the decision to exit the 16-bit and portable
cartridge markets.
4
As a result of the industry transition to 32- and 64-bit Entertainment
Platforms, the Company's Software sales during fiscal 1996 and fiscal 1997 were
significantly lower than in fiscal 1995. In addition, although the Company had
acquired three Software studios (and had incurred increases in fixed overhead
expenses), due to Software development lead times, the capacity of the studios
to develop titles to be marketed by the Company soon after their acquisition was
limited, and the Company continued to rely on independent studios for the
development of its titles and incurred royalty and other expense relating
thereto. Accordingly, in fiscal 1997, the Company effected certain measures,
including expense reductions and consolidation of certain operations, to align
its operating expenses with anticipated revenues. The Company recorded net
earnings of $8.0 million for the quarter ended November 30, 1997 as compared to
a net loss of $(19.0) million for the quarter ended November 30, 1996. The net
earnings for the first quarter of fiscal 1998 reflect primarily the increase in
sales volume of the Company's Software for Nintendo's 64-bit N64 platform.
The Company believes, based on publicly available information and its own
estimates, that the installed base of 32- and 64-bit Entertainment Platforms was
between approximately 6 and 7 million and between approximately 20 and 22
million units at the end of calendar 1996 and 1997, respectively. Although the
Company anticipates that such installed base will continue to grow in calendar
1998 and that the Company's revenues in fiscal 1998 from sales of Software
therefor will be higher than in fiscal 1997, the Company's revenues from sales
of Software for the new Entertainment Platforms in fiscal 1998 will not be
comparable to its revenues from sales of 16-bit Software in fiscal 1994 or 1995.
No assurance can be given as to the future growth of the installed base of 32-
and 64-bit Entertainment Platforms or Software therefor or of the Company's
results of operations and profitability in future periods. See 'Risk Factors.'
The Company's ability to generate sales growth and profitability will be
primarily dependent on the growth of the Software market for 32- and 64-bit
Entertainment Platforms and Multimedia PCs, the Company's ability to identify,
develop and publish 'hit' Software for Entertainment Platforms with significant
installed bases and Multimedia PCs, the continued success of the Company's cost
reduction efforts and its ability to develop and publish commercially viable
titles after giving effect to such efforts and, to a lesser extent, the
development of, and the generation of revenues from, the Company's other
entertainment operations.
A Delaware corporation, Acclaim was founded in 1987 and has overseas
operations in Japan, France, Germany, Spain and the United Kingdom.
The Company's principal executive offices are located at One Acclaim Plaza,
Glen Cove, New York 11542, and its telephone number is (516) 656-5000.
5
RISK FACTORS
In addition to the other information contained in this Prospectus, the
following factors, among others, should be considered carefully in evaluating
the investment in the Company offered hereby.
Recent Operating Results
The Company's net revenues declined from $566.7 million in fiscal 1995 to
$161.9 million in fiscal 1996 and to $165.4 million in fiscal 1997 and increased
from $53.3 million in the first quarter of fiscal 1997 to $92.3 million in the
first quarter of fiscal 1998. The Company had net earnings of $44.7 million in
fiscal 1995, a net loss of $(221.4) million in fiscal 1996 and a net loss of
$(159.2) million in fiscal 1997 and a loss of $(19.0) million in the first
quarter of fiscal 1997 as compared to net earnings of $8.0 million in the first
quarter of fiscal 1998. The increase in revenues and earnings in the first
quarter of fiscal 1998 reflects increased sales of the Company's Software for
the N64 platform. The loss for fiscal 1997 included, among other things, charges
for litigation settlements and other claims of $23.6 million, a writedown of the
goodwill associated with Acclaim Comics of $25.2 million and downsizing charges
of $10 million. The loss for fiscal 1996 included, among other things, the
second and fourth quarter special cartridge video charges taken by the Company
aggregating approximately $114 million.
The Company's revenues and operating results in fiscal 1996 and 1997
reflect principally the transition from 16-bit to 32- and 64-bit Entertainment
Platforms. Based on publicly available information and its own estimates, the
Company believes that the installed base of 32- and 64-bit Entertainment
Platforms was between approximately 6 and 7 million units at the end of calendar
1996 and between approximately 20 and 22 million units at the end of calendar
1997 on a worldwide basis. Although the Company anticipates that such installed
base will continue to grow, no assurance can be given that the installed base of
such Entertainment Platforms will increase substantially or that the Company's
revenues from sales of Software therefor will increase sufficiently to offset
the reduction in revenues derived from sales of 16-bit Software in prior years.
In fiscal 1997, the Company effected a variety of cost reduction measures
to reduce its operating expenses. See '--Liquidity and Bank Relationships'
below. The Company realized the benefits of such measures in the fourth quarter
of fiscal 1997 and in the first quarter of fiscal 1998 in the form of reduced
operating expenses as compared to prior quarters. However, no assurance can be
given that the Company will be able to maintain its operating expenses at their
current level or that the cost reduction measures will not materially adversely
affect the Company's ability to develop and publish commercially viable titles
or that such measures, whether alone or in conjunction with increased revenues,
if any, will be sufficient to generate operating profits in fiscal 1998 and
beyond.
Liquidity and Bank Relationships
The Company's net cash used in operations increased from approximately $7.3
million in fiscal 1995 to approximately $38.3 million in fiscal 1996 and
approximately $29.2 million in fiscal 1997 and derived net cash from operations
of approximately $31.0 million and $7.1 million in the first quarter of fiscal
1997 and 1998, respectively. An income tax refund of approximately $54 million
related to the carryback of the Company's loss for fiscal 1996 was included in
the net cash used in operating activities during the first quarter of fiscal
1997 and the year ended August 31, 1997. Prior to the fiscal 1998 quarter,
without giving effect to the tax refund during the first quarter of fiscal 1997,
the Company has experienced negative cash flow from operations in recent periods
primarily due to its net losses, which were primarily attributable to the
industry transition from 16-bit to 32- and 64-bit Entertainment Platforms and
related Software.
The Company believes, based on the anticipated continued growth of the
installed base of 32- and 64-bit Entertainment Platforms and the cost reduction
efforts effected by the Company, that its cash flows from operations will be
sufficient to cover its operating expenses in fiscal 1998. However, there can be
no assurance that the Company's operating expenses will not materially exceed
cash flows available from the Company's operations in fiscal 1998 and beyond.
To provide liquidity, the Company (i) in fiscal 1997, significantly reduced
the number of its employees and consolidated certain of its studio operations to
reduce their overhead expenses, (ii) on February 26, 1997,
6
consummated a convertible note offering (the 'Convertible Note Offering') and
used approximately $16 million of the net proceeds of the Convertible Note
Offering to retire its term loan from Midland Bank plc ('Midland') and $2
million of such proceeds to pay down its mortgage loan from Fleet Bank ('Fleet')
and (iii) on March 5, 1997, sold substantially all of the assets and certain
liabilities of Acclaim Redemption Games, Inc. (formerly Lazer-Tron Corporation)
('Lazer-Tron') for $6 million in cash. The Company's long-term liquidity will be
materially dependent on its ability to develop and market 'hit' Software for the
hardware platforms that dominate the interactive entertainment market.
As a result of its financial performance in fiscal 1997 and in the first
quarter of fiscal 1998, the Company was in default of various financial and
other covenants under loan agreements with its lead institutional lender, BNY
Financial Corporation ('BNY'), as of the end of each quarter of fiscal 1997 and
in the first quarter of fiscal 1998, which defaults have been waived. There can
be no assurance that additional covenant defaults or a payment default will not
occur in the future. The Company's ability to meet its financial covenants and
its payment obligations can be affected by factors beyond its control. There can
be no assurance that the Company will be able to obtain waivers of any future
default or that the lenders will not exercise their remedies. In such event, the
Company's operations would be materially adversely affected.
Substantial Leverage and Ability to Service Debt
The Company's ability to satisfy its obligations to its lenders will be
dependent upon its future performance, which is subject to prevailing economic
conditions and financial, business and other factors, including factors beyond
the Company's control.
The level of the Company's indebtedness could have important consequences
to investors in the Company, because: (i) a portion of the Company's cash flow
from operations must be dedicated to debt service, including the notes (the
'Notes') issued in the Convertible Note Offering and the Company's existing bank
obligations, and will not be available for other purposes; (ii) the Company's
ability to obtain additional debt financing in the future for working capital,
or to pursue possible expansion of its business or acquisitions, may be limited;
and (iii) the Company's level of indebtedness could limit its flexibility in
reacting to changes in the interactive entertainment industry and economic
conditions generally, making it more vulnerable to adverse economic conditions
and limiting its ability to withstand competitive pressures or take advantage of
business opportunities. Certain of the Company's competitors currently operate
on a less leveraged basis, and are likely to have significantly greater
operating and financing flexibility than the Company.
The Company believes that, based upon current levels of operations, it
should be able to meet its interest obligations on the Notes, and its interest
and principal obligations under its bank agreements, when due. However, if the
Company cannot generate sufficient cash flow from operations to meet its debt
obligations when due, the Company might be required to restructure or refinance
its indebtedness. There can be no assurance that any such restructuring or
refinancing will be effected on satisfactory terms or will be permitted by the
terms of the indenture (the 'Indenture') governing the Notes, or the Company's
existing indebtedness. There can be no assurance that the Company's operating
cash flows will be sufficient to meet its debt service requirements or to repay
the Notes at maturity or that the Company will be able to refinance the Notes or
other indebtedness at maturity. See '--Prior Rights of Creditors' below.
Prior Rights of Creditors
The Company has outstanding long-term debt (including current portions) of
$53.3 million at November 30, 1997. The Company's failure to make payments of
interest or principal on such indebtedness when due may result in defaults under
its agreements with respect to such indebtedness and under the Indenture.
Certain of such indebtedness is secured by liens on substantially all of the
assets of the Company.
In addition, the Indenture provides that, upon the occurrence of certain
events (each a 'Repurchase Event'), the Company may be obligated to repurchase
all or a portion of the outstanding Notes. If a Repurchase Event were to occur
and the Company did not have, or could not obtain, sufficient financial
resources to repurchase the Notes, such failure to repurchase the Notes would
constitute an event of default under the Indenture. The occurrence of certain
Repurchase Events would also constitute a default under certain of the Company's
current loan agreements, including the Company's main credit facility with BNY,
and may constitute an event of default
7
under the terms of future agreements with respect to the Company's borrowings.
The default under the Indenture for the Company's failure to effect a repurchase
of the Notes would also constitute an event of default under certain of the
Company's existing loan agreements.
Further, the Company's ability to meet its debt service obligations are, in
part, dependent upon its receipt of dividends and other advances and transfers
of funds from its subsidiaries. The ability of the Company's subsidiaries to pay
such dividends and make such advances will be subject to applicable state and
foreign law regulating the payment of dividends and the terms of the Company's
existing bank agreements and the Indenture.
A significant portion of the Company's assets, operations, trade payables
and other indebtedness are located at subsidiaries of the Company and the
creditors of such subsidiaries would generally recover from the assets of such
subsidiaries on the obligations owed to them by such subsidiaries prior to any
recovery by creditors of the Company and prior to any distribution of remaining
assets to equity holders of the Company.
An event of default with respect to the Company's current bank agreements
may result in acceleration of the Company's obligations under such bank
agreements or demand by the lenders for immediate repayment and would entitle
any secured creditor in respect of such debt to proceed against the collateral
securing such defaulted loan. An event of default under the Indenture may result
in actions by IBJ Schroder Bank & Trust Company, as trustee (the 'Trustee'), on
behalf of the holders of the Notes. In the event of such acceleration by the
Company's creditors or action by the Trustee, holders of indebtedness would be
entitled to payment out of the assets of the Company. If the Company becomes
insolvent, is liquidated or reorganized, it is possible that there will not be
sufficient assets remaining after payment to such creditors for any distribution
to holders of Common Stock.
Going Concern Considerations
The report of KPMG Peat Marwick LLP, independent auditors for the Company,
includes an explanatory paragraph relating to substantial doubt as to the
ability of the Company to continue as a going concern. The Company incurred
significant losses from operations in fiscal 1997 and has working capital and
stockholders' deficiencies at November 30, 1997 and August 31, 1997. A 'going
concern' explanatory paragraph could have a material adverse effect on the terms
of any bank financing or capital the Company may seek.
NASDAQ Delisting and Liquidity of Common Stock
In order to maintain the listing of the Common Stock on the NASDAQ National
Market System (the 'NMS'), at May 31, 1997, the Company was required, among
other things, to maintain net tangible assets of at least $1 million. At May 31,
1997, the Company did not meet this requirement. Based on its review of certain
information provided by the Company, NASDAQ informed the Company that it had
determined that the Common Stock remain listed on the NMS pending NASDAQ's
review of the Company's status upon filing of the Company's Annual Report on
Form 10-K for the year ended August 31, 1997. Upon such review, NASDAQ informed
the Company that it has determined that the Common Stock remain listed on the
NMS until February 1998, at which time the NASDAQ Stock Market's new maintenance
criteria for securities listed on the NMS are anticipated to become effective.
Under such criteria, the Company is required, among other things, to maintain a
minimum bid price of $5 per share of Common Stock. The Company does not
currently meet this criteria (although the Company's performance as of August
31, 1997 does meet the other quantitative maintenance criteria). Accordingly, no
assurance can be given that the Common Stock will not be delisted from trading
on the NMS.
If the Common Stock were to be delisted from trading on the NMS, in order
to obtain relisting of the Common Stock on the NMS, the Company must satisfy
quantitative designation criteria, including a minimum net tangible assets
requirement which it does not currently meet. No assurance can be given that the
Company will meet such relisting criteria in the near future.
If the Common Stock were to be delisted from trading on the NMS, the
Company may seek to have the Common Stock listed for trading on the NASDAQ
Small-Cap Market. Although the Company meets the current listing criteria for
the NASDAQ Small-Cap Market (other than a minimum bid price of $4 per share of
Common Stock), no assurance can be given as to the Company's ability to obtain
listing for the Common Stock on the NASDAQ Small-Cap Market or as to the
Company's ability to meet the maintenance requirements thereof.
8
If the Common Stock were to be delisted from trading on the NMS and were
neither relisted thereon nor listed for trading on the NASDAQ Small-Cap Market,
trading, if any, in the Common Stock may continue to be conducted on the OTC
Bulletin Board or in the non-NASDAQ over-the-counter market. Delisting of the
Common Stock would result in limited release of the market price of the Common
Stock and limited news coverage of the Company and could restrict investors'
interest in the Common Stock and materially adversely affect the trading market
and prices for the Common Stock and the Company's ability to issue additional
securities or to secure additional financing. In addition, if the Common Stock
were not listed and the trading price of the Common Stock were less than $5.00
per share, the Common Stock could be subject to Rule 15g-9 under the Securities
Exchange Act of 1934 which, among other things, requires that broker/dealers
satisfy special sales practice requirements, including making individualized
written suitability determinations and receiving a purchaser's written consent
prior to any transaction. In such case, the Common Stock could also be deemed to
be a 'penny stock' under the Securities Enforcement and Penny Stock Reform Act
of 1990, which would require additional disclosure in connection with trades in
the Common Stock, including the delivery of a disclosure schedule explaining the
nature and risks of the penny stock market. Such requirements could severely
limit the liquidity of the Common Stock.
Litigation
In conjunction with certain claims and litigations for which the settlement
obligation is currently probable and estimable, the Company recorded a charge of
$23.6 million in the year ended August 31, 1997. No assurance can be given that
the Company will not be required to record additional material charges in future
periods in conjunction with the various litigations to which the Company is a
party. Any additional charges to earnings arising from an adverse result in such
litigations or an inadequacy in its charge recorded in fiscal 1997 could have a
material adverse effect on the financial condition and results of operations of
the Company. A portion of any settlement or judgment in one or more of the
litigations to which the Company is a party may be covered by the Company's
insurance.
Industry Trends; Platform Transition; Technological Change
The interactive entertainment industry is characterized by, and the Company
anticipates that it will continue to undergo, rapid technological change due in
large part to (i) the introduction of Entertainment Platforms incorporating more
advanced processors and operating systems, (ii) the impact of technological
changes embodied in Multimedia PCs and Software therefor, (iii) the development
of electronic and wireless delivery systems and (iv) the entry and participation
of new companies in the industry. These factors have resulted in hardware
platform and Software life cycles.
No single hardware platform or system has achieved long-term dominance.
Accordingly, the Company must continually anticipate and adapt its Software
titles to emerging hardware platforms and systems and evolving consumer
preferences. There can be no assurance that the Company will be successful in
developing and marketing Software for new hardware platforms. The process of
developing Software titles such as those offered by the Company is extremely
complex and is expected to become more complex and expensive in the future as
consumers demand more sophisticated and elaborate features and as new platforms
and technologies are introduced.
Development of Software for emerging hardware platforms requires
substantial investments in research and development for new and improved
technologies in the areas of graphics, sound, digitized speech, music and video.
Such research and development must occur well in advance of the release of new
hardware platforms in order to allow sufficient lead time to develop and
introduce new Software titles on a timely basis. This generally requires the
Company to predict the probable success of hardware platforms as much as 12 to
24 months prior to the release of compatible Software.
Substantially all of the Company's revenues in fiscal 1997 and in the first
quarter of fiscal 1998 were derived from the sale of titles designed to be
played on the Nintendo N64, Sony PlayStation, Sega Saturn and various Multimedia
PCs. At any given time, the Company has expended significant development and
marketing resources on product development for platforms (such as the 16-bit
SNES and Sega Genesis platforms) that could have shorter life cycles than the
Company expected, as in fiscal 1996, or on Software titles designed for new
9
platforms (such as the Sony PlayStation and Nintendo N64) that have not yet
achieved large installed bases. If the Company does not accurately predict the
success, size of the installed base and life cycle of existing or future
hardware platforms due to, among other things, the long Software development
lead times involved, it could be in the position, as it was in fiscal 1996 and
1997, of marketing Software for (i) new hardware platforms that have not yet
achieved significant market penetration and/or (ii) hardware platforms that have
become or are becoming obsolete due to the introduction or success of new
hardware platforms. There can be no assurance that the Company will be able to
predict accurately such matters, and its failure to do so would have a material
adverse effect on the Company.
Failure to develop Software titles for hardware platforms that achieve
significant market acceptance, discontinuance of development for a platform that
has a longer than expected life cycle, development for a platform that does not
achieve a significant installed base or continued development for a platform
that has a shorter than expected life cycle, may have a material adverse effect
on the Company's business, financial condition and operating results.
The Company's results of operations and profitability have been materially
adversely affected during the fiscal years ended August 31, 1996 and 1997 by the
material decline in sales of the Company's 16-bit Software and the transition to
the new hardware platforms described herein. The Company is currently developing
Software for Multimedia PCs, the Sony PlayStation and the Nintendo N64. There
are a significant number of Software titles for the Entertainment Platform
market competing for limited shelf space. In addition, the 32- and 64-bit
Entertainment Platforms have not yet achieved market penetration similar to that
of the 16-bit Entertainment Platforms (Nintendo SNES and Sega Genesis);
accordingly, the number of units of each Software title sold for these newer
Entertainment Platforms is significantly less than the number of units of a
title generally sold during 1993, 1994 and 1995 for the 16-bit Entertainment
Platforms. Based on the dates of introduction of the 32- and 64-bit
Entertainment Platforms, publicly available information and its own estimates,
the Company believes that the installed base of 32- and 64-bit Entertainment
Platforms was between approximately 6 and 7 million and between approximately 20
and 22 million units at the end of calendar 1996 and 1997, respectively.
Although the Company anticipates that such installed base will continue to grow
calendar 1998, no assurance can be given that the installed base of any of the
new Entertainment Platforms will grow substantially or that any of them will
achieve market penetration similar to that achieved by the Nintendo SNES and
Sega Genesis Entertainment Platforms.
Revenue and Earnings Fluctuations; Seasonality
The Company has historically derived substantially all of its revenues from
the publication and distribution of Software for then dominant hardware
platforms. The Company's revenues are subject to fluctuation during transition
periods, as occurred in fiscal 1996 and 1997, when new hardware platforms have
been introduced but none has achieved mass market penetration. In addition, the
Company's earnings are materially affected by the timing of release of new
Software titles produced by the Company. Product development schedules are
difficult to predict due, in large part, to the difficulty of scheduling
accurately the creative process and, with respect to Software for new hardware
platforms, the use of new development tools and the learning process associated
with development for new technologies. Earnings may also be materially impacted
by other factors including, but not limited to, (i) the level and timing of
market acceptance of Software titles, (ii) increases or decreases in development
and/or promotion expenses for new titles and new versions of existing titles,
(iii) the timing of orders from major customers and (iv) changes in shipment
volume.
A significant portion of the Company's revenues in any quarter is generally
derived from sales of new Software titles introduced in that quarter or in the
immediately preceding quarter. If the Company were unable to commence volume
shipments of a significant new product during the scheduled quarter, the
Company's revenues and earnings would likely be materially and adversely
affected in that quarter. In addition, because a majority of the unit sales for
a product typically occur in the first 90 to 120 days following the introduction
of the product, the Company's earnings may increase significantly in a period in
which a major product introduction occurs and may decline in the following
period or in periods in which there are no major product introductions. Certain
operating expenses are fixed and do not vary directly in relation to revenue.
Consequently, if net revenue is below expectations, the Company's operating
results are likely to be materially and adversely affected.
10
The interactive entertainment industry is highly seasonal. Typically, net
revenues are highest during the last calendar quarter (which includes the
holiday buying season), decline in the first calendar quarter, are lower in the
second calendar quarter and increase in the third calendar quarter. The seasonal
pattern is due primarily to the increased demand for Software during the
year-end holiday buying season. The Company's earnings, however, vary
significantly and are largely dependent on releases of major new titles and, as
such, may not necessarily reflect the seasonal patterns of the industry as a
whole. The Company expects that its operating results will continue to fluctuate
significantly in the future.
Dependence on Entertainment Platform Manufacturers; Need for License Renewals
In fiscal 1995, 1996 and 1997, the Company derived 47%, 29% and 41% of its
gross revenues, respectively, from sales of Nintendo-compatible titles and 46%,
36% and 12% of its gross revenues, respectively, from sales of Sega-compatible
titles. In addition, in fiscal 1996 and 1997, the Company derived 19% and 28%,
respectively, of its gross revenues from sales of Sony-compatible titles. In the
quarters ended November 30, 1996 and 1997, the Company derived 13% and 75% of
its gross revenues, respectively, from sales of Nintendo-compatible Software,
48% and 15% of its gross revenues, respectively, from sales of Software for the
Sony PlayStation and 19% and less than 1% of its gross revenues, respectively,
from sales of Sega-compatible Software. Accordingly, the Company is
substantially dependent on Sony, Sega and Nintendo as the sole manufacturers of
the Entertainment Platforms marketed by them and as the sole licensors of the
proprietary information and technology needed to develop Software for those
Entertainment Platforms. The Entertainment Platform manufacturers have in the
past and may in the future limit the number of titles that the Company can
release in any year, which may limit any future growth in sales.
The Company has historically been able to renew and/or negotiate extensions
of its Software license agreements with Entertainment Platform developers.
However, there can be no assurance that, at the end of their current terms, the
Company will continue to be able to do so or that the Company will be successful
in negotiating definitive license agreements with developers of new hardware
platforms. The Company has executed license agreements with Sony with respect to
the PlayStation platform in North America, Japan, Asia and Europe and with
Nintendo with respect to the N64 platform in North and South America and Japan.
Currently, the Company and Sega are operating in the ordinary course under the
terms of an agreement that expired in December 1995 and, with respect to the
Saturn platform, under an oral agreement and other arrangements. The inability
to negotiate agreements with developers of new Entertainment Platforms or the
termination of all of the Company's license agreements or other arrangements
will, and the termination of any one of the Company's license agreements or
other arrangements could, have a material adverse effect on the Company's
financial position and results of operations.
The Company depends on Nintendo, Sega and Sony for the protection of the
intellectual property rights to their respective Entertainment Platforms and
technology and their ability to discourage unauthorized persons from producing
Software for the Entertainment Hardware platforms developed by each of them. The
Company also relies upon the Entertainment Platform manufacturers for the
manufacture of certain cartridge and CD-based read-only memory ('ROM') Software.
Reliance on New Titles; Product Delays
The Company's ability to maintain favorable relations with retailers and to
receive the maximum advantage from its advertising expenditures is dependent in
part on its ability to provide retailers with a timely and continuous flow of
product. The life cycle of a Software title generally ranges from less than
three months to upwards of twelve months, with the majority of sales occurring
in the first 90 to 120 days after release. The Company generally actively
markets its 10 to 15 most recent releases. Accordingly, the Company is
constantly required to develop, introduce and sell new Software in order to
generate revenue and/or to replace declining revenues from previously released
titles. In addition, consumer preferences for Software are difficult to predict,
and few Software titles achieve sustained market acceptance. There can be no
assurance that new titles introduced by the Company will be released in a timely
fashion, will achieve any significant degree of market acceptance, or that such
acceptance will be sustained for any meaningful period. Competition for retail
shelf space, consumer preferences and other factors could result in the
shortening of the life cycle for older titles and increase the importance of the
Company's ability to release titles on a timely basis.
11
The Company's current production schedules contemplate that the Company
will commence shipment of a number of new titles in the remainder of fiscal
1998. Shipment dates will vary depending on the Company's own quality assurance
testing, as well as that by the applicable dedicated platform manufacturer, and
other development factors. The Company generally submits new games to the
dedicated platform manufacturers and other intellectual property licensors for
approval prior to development and/or manufacturing. Rejection as a result of
bugs in Software or a substantial delay in the approval of a product by an
Entertainment Platform manufacturer or licensor could have a material adverse
effect on the Company's financial condition and results of operations. In the
past, the Company has experienced significant delays in the introduction of
certain new titles. There can be no assurance that such delays will not occur or
materially adversely affect the Company in the future. It is likely that in the
future certain new titles will not be released in accordance with the Company's
internal development schedule or the expectations of public market analysts and
investors. A significant delay in the introduction of, or the presence of a
defect in, one or more new titles could have a material adverse effect on the
ultimate success of such product. If the Company is not able to develop,
introduce and sell new competitive Software titles on a timely basis, its
results of operations and profitability would be materially adversely affected.
Reliance on 'Hit' Titles
The market for Software is 'hits' driven and, accordingly, the Company's
future success is dependent in large part on its ability to develop and market
'hit' titles for hardware platforms with significant installed bases. During the
fiscal year ended August 31, 1997, sales of the Company's top title accounted
for approximately 33% of the Company's gross sales for that period and, during
the quarter ended November 30, 1997, sales of the Company's top three titles
accounted for approximately 71% of the Company's gross sales for that period.
There can be no assurance that the Company will be able to publish 'hit' titles
for hardware platforms with significant installed bases and, if it is unable to
do so for any reason, its financial condition, results of operations and
profitability could be materially adversely affected, as they were in fiscal
1996 and 1997.
Inventory Management; Risk of Product Returns
The Company is generally not contractually obligated to accept returns,
except for defective product. However, the Company may permit its customers to
return or exchange inventory and may provide price protection or other
concessions for excess or slow-moving inventory. Management must make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting periods.
Among the more significant of such estimates are allowances for estimated
returns, price concessions and other discounts. At the time of shipment, the
Company establishes reserves in respect of such estimates taking into account
the potential for product returns and other discounts based on historical return
rates, seasonality, retail inventories and other factors. In fiscal 1996, price
protection, returns and exchanges were materially higher than the Company's
reserves therefor, as a result of which the Company's results of operations and
liquidity in fiscal 1996 were materially adversely affected. The Company
believes that, at November 30, 1997, it has established adequate reserves for
future price protection, returns, exchanges and other concessions but there can
be no assurance that the Company's reserves therefor will not be exceeded, which
event would have a material adverse effect on the Company's financial condition
and results of operations.
In addition, the Company has offered and anticipates that it will continue
to offer stock-balancing programs for its PC Software. The Company has
established reserves for such programs, which have not been material to date. No
assurance can be given that future stock-balancing programs will not become
material and/or will not exceed the Company's reserves for such programs and, if
so exceeded, the Company's results of operations and financial condition could
be materially adversely affected.
Increased Product Development Costs
In order to manage its Software development process and to ensure access to
a pool of Software developers, development tools and engines in an increasingly
competitive market, the Company acquired three Software studios in calendar
1995. The result of such acquisitions was that the Company's fixed Software
development
12
and overhead costs were significantly higher in fiscal 1996 and 1997 as compared
to historical levels and such costs were not offset by revenues from Software
developed by the studios. These costs further contributed to the Company's
results of operations and profitability being materially adversely affected in
fiscal 1996 and 1997. No assurance can be given that such costs will not
continue to have a material adverse effect on the Company's operations in future
periods.
Competition
The market for consumer Software titles is highly competitive. Only a small
percentage of titles introduced in the Software market achieve any degree of
sustained market acceptance. Competition is based primarily upon quality titles
price, access to retail shelf space, product enhancements, ability to operate on
popular platforms, availability of titles (including 'hits'), new product
introductions, marketing support and distribution systems.
The Company competes with a variety of companies which offer products that
compete directly with one or more of the Company's Software titles. Typically,
the Company's chief competitor on an Entertainment Platform is the hardware
manufacturer of the platform, to whom the Company pays royalties and, in some
cases, manufacturing charges. Accordingly, the hardware manufacturers have a
price, marketing and distribution advantage with respect to Software marketed by
them and such advantage is particularly important in a mature or declining
market which supports fewer full-priced titles and is characterized by customers
who make purchasing decisions on titles based primarily on price (as compared to
developing markets with limited Software titles, when price has been a less
important factor in Software sales). The Company's competitors vary in size from
very small companies with limited resources to very large corporations with
greater financial, marketing and product development resources than the Company,
such as Nintendo, Sega and Sony. The Company's competitors also include a number
of independent Software publishers licensed by the hardware manufacturers.
Additionally, the entry and participation of new industries and companies,
including diversified entertainment companies, in markets in which the Company
competes may adversely affect the Company's performance in such markets. The
availability of significant financial resources has become a major competitive
factor in the Software industry, principally as a result of the technical
sophistication of advanced Entertainment Platform and Multimedia PC game
products requiring substantial investments in research and development. In
particular, many of the Company's competitors are developing on-line interactive
computer games and interactive networks that will be competitive with the
Company's Software. As competition increases, significant price competition and
reduced profit margins may result. In addition, competition from new
technologies may reduce demand in markets in which the Company has traditionally
competed. Prolonged price competition or reduced demand as a result of competing
technologies would have a material adverse effect on the Company's business,
financial condition and operating results. No assurance can be given that the
Company will be able to compete successfully.
Intellectual Property Licenses and Proprietary Rights
To date, most of the Company's Software incorporates for marketing purposes
properties or trademarks owned by third parties, such as the WWF, the National
Basketball Association, the National Football League or their respective
players' associations, which properties are licensed to the Company. In
addition, the Company in the past has obtained agreements with independent
developers for the development of a significant portion of its Software and, in
such cases, the Company usually acquires copyrights to the underlying Software
and obtains the exclusive right to such Software for a period of time and may
have a limited period in which to market and distribute Software. To the extent
future product releases are not derived from the Company's proprietary
properties, the Company's future success will also be dependent upon its ability
to procure licenses for additional popular intellectual properties. There is
intense competition for such licenses, and there can be no assurance that the
Company will be successful in acquiring additional intellectual property rights
with significant commercial value. There can be no assurance that such licenses
will be available on reasonable terms or at all.
The Company relies primarily on a combination of copyrights, trade secret
laws, patent and trademark laws, nondisclosure agreements and other copy
protection methods to protect its product and proprietary rights. It is the
Company's policy that all employees and third-party developers sign
nondisclosure agreements. There can be no assurance that these measures will be
sufficient to protect the Company's intellectual property rights against
13
infringement. The Company has 'shrinkwrap' license agreements with the end users
of its PC titles, but the Company relies on the copyright laws to prevent
unauthorized distribution of its other Software. Existing copyright laws afford
only limited protection. However, notwithstanding the Company's rights to its
Software, it may be possible for third parties to copy illegally the Company's
titles or to reverse engineer or otherwise obtain and use information that the
Company regards as proprietary. Illegal copying occurs within the Software
industry, and if a significant amount of illegal copying of the Company's
published titles or titles distributed by it were to occur, the Company's
business, operating results and financial condition could be materially
adversely affected. Policing illegal use of the Company's titles is difficult,
and Software piracy can be expected to be a persistent problem. Further, the
laws of certain countries in which the Company's titles are or may be
distributed do not protect the Company and its intellectual property rights to
the same extent as the laws of the United States.
The Company believes that its Software titles, trademarks and other
proprietary rights do not infringe on the proprietary rights of third parties.
However, as the number of Software titles in the industry increases, the Company
believes that claims and lawsuits with respect to Software infringement will
increase. From time to time, third parties have asserted that features or
content of certain of the Company's titles may infringe upon intellectual
property rights of such parties, and the Company has asserted that third parties
have likewise infringed the Company's proprietary rights; certain of these
claims have resulted in litigation by and against the Company. To date, no such
claims have had an adverse effect on the Company's ability to develop, market or
sell its titles. There can be no assurance that existing or future infringement
claims by or against the Company will not result in costly litigation or require
the Company to license the intellectual property rights of third parties.
The owners of intellectual property licensed by the Company generally
reserve the right to protect such intellectual property against infringement.
International Sales
International sales represented approximately 25%, 41% and 50% of the
Company's net revenues in fiscal 1995, 1996 and 1997, respectively and
approximately 53% and 41% of the Company's net revenues for the quarter ended
November 30, 1996 and 1997, respectively. The Company expects that international
sales will continue to account for a significant portion of its net revenues in
future periods. International sales are subject to inherent risks, including
unexpected changes in regulatory requirements, tariffs and other economic
barriers, fluctuating exchange rates, difficulties in staffing and managing
foreign operations and the possibility of difficulty in accounts receivable
collection. Because the Company believes exposure to foreign currency losses is
not currently material, the Company currently has no formal financial
instruments in place as a hedge against foreign currency risks. In some markets,
localization of the Company's titles is essential to achieve market penetration.
The Company may incur incremental costs and experience delays in localizing its
titles. These or other factors could have a material adverse effect on the
Company's future international sales and, consequently, on the Company's
business, operating results and financial condition.
New Business Ventures
Commencing in July 1994, the Company has completed acquisitions, or has
commenced operations, of various new businesses including (i) the publication of
comic books, (ii) the distribution of Affiliated Labels Software, (iii) the
marketing of its motion capture technology and studio services and (iv) the
distribution of coin-operated video games. The Company also acquired three
Software studios in calendar 1995. The Company made significant investments and
incurred significant expenses in connection with the acquisition/ establishment
of such businesses in fiscal 1995, 1996 and 1997, and anticipates that it will
continue to incur significant expenses in connection with certain of the
operations thereof. To date, except for sales of Affiliated Labels Software
(which accounted for approximately 11% of the Company's gross revenues in fiscal
1997 and for approximately 9% and 8% of the Company's gross revenues in the
quarter ended November 30, 1996 and 1997, respectively) and sales of titles
developed by the studios, none of such new businesses has generated significant
revenues and there can be no assurance that such businesses will generate
significant revenues or the timing thereof. To the extent the Company continues
to incur material expenses in connection with such ventures during periods when
they do not generate significant revenues, the Company's results of operations
and profitability will be materially adversely affected.
14
Dependence on Key Personnel and Employees
The interactive entertainment industry is characterized by a high level of
employee mobility and aggressive recruiting among competitors for personnel with
technical, marketing, sales, product development and management skills. The
ability to identify, hire and retain such personnel is essential to the
Company's success. No assurance can be given that the Company will be able to
attract and retain such personnel or that it will not experience significant
cost increases in order to do so.
In particular, the Company is highly dependent upon the management services
of Gregory Fischbach, Co-Chairman of the Board and Chief Executive Officer, and
James Scoroposki, Co-Chairman of the Board and Senior Executive Vice President,
of the Company. The loss of the services of any of the Company's senior
management could have a material adverse effect on the Company's business,
operating results and financial condition. Although the Company has employment
agreements with Messrs. Fischbach and Scoroposki, there can be no assurance that
such employees will not leave or compete with the Company. The Company's failure
to attract additional qualified employees or to retain the services of key
personnel could materially and adversely affect the Company's business,
operating results and financial condition.
Anti-Takeover Provisions
The Company's Board of Directors has the authority (subject to certain
limitations imposed by the Indenture) to issue shares of preferred stock and to
determine the designations, preferences and rights and the qualifications or
restrictions of those shares without any further vote or action by the
stockholders. The rights of the holders of Common Stock will be subject to, and
may be adversely affected by, the rights of the holders of any preferred stock
that may be issued in the future. The issuance of preferred stock, while
providing desirable flexibility in connection with possible acquisitions and
other corporate actions, could have the effect of making it more difficult for a
third-party to acquire a majority of the outstanding voting stock of the
Company. In addition, the Company is subject to the anti-takeover provisions of
Section 203 of the Delaware General Corporation Law (the 'DGCL'). In general,
this statute prohibits a publicly held Delaware corporation from engaging in a
'business combination' with an 'interested stockholder' for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
Employment arrangements with certain members of the Company's management provide
for severance payments upon termination of their employment after a 'change in
control' of the Company as defined in such agreements.
Volatility of Stock Price
There has been a history of significant volatility in the market prices of
companies engaged in the Software industry, including the Company. It is likely
that the market price of the Common Stock will continue to be highly volatile.
Factors such as the timing and market acceptance of product introductions by the
Company, the introduction of products by the Company's competitors, loss of key
personnel of the Company, variations in quarterly operating results or changes
in market conditions in the Software industry generally may have a significant
impact on the market price of the Common Stock. In the past, the Company has
experienced significant fluctuations in its operating results and, if the
Company's future revenues or operating results or product releases do not meet
the expectations of public market analysts and investors, the price of the
Common Stock would likely be materially adversely affected. In addition, the
stock market has experienced and continues to experience extreme price and
volume fluctuations which have affected the market price of Software companies
and companies in the interactive entertainment industry and which have often
been unrelated to the operating performance of these companies.
Because of the foregoing factors, as well as other factors affecting the
Company's operating results and financial condition, past financial performance
should not be considered a reliable indicator of future performance, and
investors should not use historical trends to anticipate results or trends in
future periods.
15
USE OF PROCEEDS
The Company will not receive any proceeds from the issuance or sale of any
shares of Common Stock pursuant to this Prospectus, except upon the exercise of
the Warrants. The net proceeds received by the Company upon the exercise of the
Warrants will be used to increase working capital.
SETTLEMENTS
The Company and certain of its directors and/or executive officers were
sued in an action entitled Digital Pictures, Inc. v. Acclaim Entertainment,
Inc.; Gregory E. Fischbach and Anthony Williams (Case No. 96-3-3301 TC) filed in
December 1996 in the United States Bankruptcy Court in the Northern District of
California. The plaintiff, Digital Pictures, Inc. ('Digital') sought damages
equal to at least $8 million. The Company has reached an agreement in principle
(the 'Settlement') with Digital, which is subject to final documentation and
approval of the United States Bankruptcy Court for the Northern District of
California. Pursuant to the terms of the Settlement, the Company has agreed,
among other things, to issue to Digital such number of shares of Common Stock as
shall have a value on the effective date specified in the settlement agreement
of not less than $1,750,000.00. The Company has also agreed to register the
issuance and/or resale of such shares by the Company to Digital and/or its
assignees.
The Company intends to utilize a portion of the Settlement Shares to
fulfill its obligations to Digital under the Settlement. The Company intends to
utilize any remaining Settlement Shares to fulfill its obligations, if any, to
issue additional shares of Common Stock to Metos pursuant to the terms of the
settlement agreement between the Company and Metos. See 'Selling
Stockholders--Metos Shares.' The number of Settlement Shares issued to Digital
and Metos, if any, will be set forth in a supplement to this Prospectus.
SELLING STOCKHOLDERS
METOS SHARES
The Metos Shares covered by this Prospectus were acquired by George C.
Metos ('Metos') pursuant to a Settlement Agreement among the Company, Sculptured
Software, Inc. and Metos dated October 23, 1997 (the 'Settlement Agreement').
The Settlement Agreement provides that Metos may sell up to 100,000 Metos
Shares from November 23, 1998 through January 7, 1999 and up to an additional
100,000 Metos Shares from November 23, 1999 through January 7, 2000. The parties
have agreed that, based on the market value of the Common Stock after October
23, 2000, either Metos shall be obligated to return some of the Metos Shares to
the Company or the Company shall be obligated to issue additional shares of
Common Stock to Metos. Notwithstanding the foregoing, however, Metos shall in
any event retain not less than 300,000 of the Metos Shares. If and to the extent
the Company is obligated to issue additional shares of Common Stock to Metos,
the Company intends to utilize any remaining Settlement Shares for such purpose.
The Metos Shares are restricted securities within the meaning of the
Securities Act and cannot be offered for sale without an effective registration
statement covering such offer and sale or pursuant to an applicable exemption
from the registration requirements of the Securities Act. Pursuant to the terms
of the Settlement Agreement, the Company filed the Registration Statement (of
which this Prospectus is a part) and will use its best efforts to keep the
Registration Statement effective until all of the Metos Shares are disposed of
by Metos. Expenses of this offering, estimated at $150,000, will be paid by the
Company.
OCEAN SHARES
In January 1997, the Company was sued in an action entitled Ocean of
America, Inc. v. Acclaim Entertainment, Inc. (Index No. 97-445) in the Supreme
Court of the State of New York, County of Nassau. The plaintiff, Ocean of
America, Inc. ('Ocean'), alleged non-payment under a license agreement (the
'License Agreement') entered into between the plaintiff and the Company, and
sought damages in the aggregate amount of approximately $6.5 million plus costs,
expenses and attorneys' fees. In January 1998, the Company entered into a
Settlement Agreement with Ocean dated January , 1997 settling all claims held
by Ocean against the Company (the 'Ocean Agreement'), including but not limited
to those arising under the License Agreement. Pursuant to the terms of the Ocean
Agreement, the Company agreed, among other things, to issue to Ocean 100,000
shares of Common Stock (the 'Ocean Shares'), which issuance is subject to the
exemption from registration provided under Section 4(2) of the Securities Act,
and to register the resale by Ocean of the Ocean Shares.
16
BNY SHARES
The Warrants were granted by the Company to BNY on February 19, 1997 in
connection with BNY's waiver of various defaults by the Company under agreements
between BNY and the Company. The BNY Shares are issuable at any time or from
time to time upon the exercise of the Warrants by BNY at an exercise price of
$3.97 per share and, if not exercised in full prior thereto, expire on February
19, 2006. BNY may exercise the Warrants by delivering to the Company written
notice of exercise, specifying the number of Warrants being exercised, and the
price for the Warrants being exercised, in cash or by certified or bank check
payable to the Company or by wire transfer to the Company.
BENEFICIAL OWNERSHIP AND OTHER INFORMATION
The following table sets forth certain information with respect to the
shares of Common Stock beneficially held by the Selling Stockholders:
BENEFICIAL SHARES BENEFICIALLY
OWNERSHIP SHARES BEING OWNED AFTER
NAME PRIOR TO OFFERING OFFERED THE OFFERING(1)
- -------------------------------------------------------------- ------------------ ------------ -------------------
George C. Metos............................................... 1,738,170 575,400 1,162,770(2)
Ocean of America, Inc......................................... 100,000 100,000 -0-
BNY Financial Corporation..................................... 200,000 200,000 -0-
- ------------------
(1) Assumes that all of the Resale Shares are sold by the Selling Stockholders
pursuant to this Prospectus. The Selling Stockholders may choose to dispose
of none or only a portion of the Resale Shares held by them pursuant to this
Prospectus.
(2) The sale of the remaining 1,162,770 shares of Common Stock held by Metos are
covered by a Registration Statement previously filed by the Company.
Except for the revolving credit facility provided by BNY to the Company,
neither the Company nor any of its affiliates has had any material relationship
with any of the Selling Stockholders within the past three years.
PLAN OF DISTRIBUTION
The Selling Stockholders have advised the Company that they may from time
to time (a) sell all or a portion of the Resale Shares on The NASDAQ Stock
Market or in any other securities market on which the Common Stock is then
listed or traded, in negotiated transactions or otherwise, at prices then
prevailing or related to the then current market price or at negotiated prices,
and (b) donate a portion of the Resale Shares to charitable institutions and,
thereafter, such Resale Shares may be resold by such charitable institutions.
Sales on or through The NASDAQ Stock Market will be effected at such prices as
may be obtainable and as may be satisfactory to the Selling Stockholders. No
sales or distributions other than as disclosed herein will be effected until
after this Prospectus shall have been appropriately amended or supplemented, if
required, to set forth the terms thereof. Normal commission expenses and
brokerage fees will be paid by the Selling Stockholders. The Resale Shares may
be sold directly or through brokers or dealers, or in a distribution by one or
more underwriters on a firm commitment or best efforts basis. The method by
which the Resale Shares may be sold include (a) a block trade (which may involve
crosses) in which the broker or dealer so engaged will attempt to sell the
securities as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (b) purchases by a broker or dealer as
principal and resale by such broker or dealer for its account pursuant to this
Prospectus; (c) exchange distributions and/or secondary distributions in
accordance with the rules of The NASDAQ Stock Market; (d) ordinary brokerage
transactions in which the broker solicits purchasers; and (e) privately
negotiated transactions. The Selling Stockholders may from time to time deliver
all or a portion of the Resale Shares held by them to cover a short sale or
sales or upon exercise of a put equivalent position. In addition, any Resale
Shares that qualify for sale under Rule 144 or Rule 144A under the Securities
Act may be sold under any such rules rather than pursuant to this Prospectus.
Brokers or dealers may receive commission or discounts from the Selling
Stockholders in amounts to be negotiated immediately prior to the sale. The
Selling Stockholders and any underwriters, dealers or agents that participate in
the distribution of the Resale Shares may be deemed to be 'underwriters' within
the meaning of the Securities Act, and any profit on the resale of the Resale
Shares by them or any discounts, commissions or concessions received by any such
underwriters, dealers or agents may be deemed to be underwriting discounts and
commissions under the Securities Act.
The Company has agreed to indemnify the Selling Stockholders, each
underwriter, if any, of the Resale Shares (including any broker or dealer
through which such shares may be sold) and each person, if any, who
17
controls the Selling Stockholders or any such underwriter within the meaning of
Section 15 of the Securities Act, against certain liabilities, including
liabilities under the Securities Act.
The Selling Stockholders have represented and warranted to, and agreed with
the Company that, during such time as he may be engaged in a distribution of the
Resale Shares, the Selling Stockholders will, among other things, (a) not engage
in any stabilization activity in connection with the Company's securities, (b)
furnish to each broker or dealer through whom or which he offers securities
copies of the Prospectus, as may be required, (c) inform such broker or dealer
as to the number of Resale Shares they are selling, that such securities are
part of a distribution and that they are subject to the provisions of Rule 10b-6
of the General Rules and Regulations under the Exchange Act, (d) report to the
Company any disposition of the Resale Shares if any such disposition shall have
occurred, and (e) not bid for, or purchase, any Company securities other than as
permitted under the Exchange Act.
LEGAL MATTERS
Certain legal matters in respect of the shares offered hereby will be
passed upon for the Company by Rosenman & Colin LLP, 575 Madison Avenue, New
York, New York 10022.
EXPERTS
The consolidated financial statements and schedule of Acclaim
Entertainment, Inc. and its subsidiaries as of and for the years ended August
31, 1997 and 1996 have been incorporated by reference in this Prospectus and in
the registration statement of which it forms a part in reliance upon the report
of KPMG Peat Marwick LLP ('KPMG'), independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing. The report of KPMG contains an explanatory paragraph
that states that the Company's significant losses from operations in fiscal 1997
and 1996 and its working capital and stockholders' deficiencies at August 31,
1997 raise substantial doubt about its ability to continue as a going concern.
The consolidated financial statements do not include any adjustments that might
result from the outcome of that uncertainty. The report also indicates that the
auditors were unable to review the fiscal 1996 selected quarterly data in
accordance with professional standards. The consolidated financial statements
for the year ended August 31, 1995 incorporated by reference in this Prospectus
have been audited by Grant Thornton LLP ('GT'), independent certified public
accountants, as stated in their report incorporated by reference herein. The
report of GT for fiscal 1995 includes an emphasis paragraph as to uncertainty
relating to the eventual outcome of certain class action lawsuits.
18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses of issuance and distribution of the Common Stock (excluding
legal and accounting fees, if any, incurred by the Selling Stockholders, which
will be borne in full by them) are to be paid by the Company. The following
itemized list is an estimate of the expenses:
SEC Registration Fee..................................................................... $ 2,128.00
Legal fees and expenses.................................................................. 75,000.00
Accounting fees and expenses............................................................. 45,000.00
Transfer Agent fees...................................................................... 2,000.00
Blue Sky fees and expenses............................................................... 2,000.00
Miscellaneous............................................................................ 23,872.00
-----------
Total............................................................................... $150,000.00
ITEM 15. INDEMNIFICATION
The Certificate of Incorporation of the Registrant provides that any person
may be indemnified against all expenses and liabilities to the fullest extent
permitted by the General Corporation Law of the State of Delaware.
Section 145 of the General Corporation Law of Delaware, the law of the
state in which the Registrant is incorporated, empowers a corporation within
certain limitations to indemnify any person against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any suit or proceeding to which he
is a party by reason of the fact that he is or was a director, officer, employee
or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, as long as he acted in
good faith and in a manner which he reasonably believed to be in, or not opposed
to, the best interests of the corporation. With respect to any criminal
proceeding, he must have had no reasonable cause to believe his conduct was
unlawful.
The Registrant also has in effect directors' and officers' liability
insurance.
ITEM 16. EXHIBITS
(a) The following documents are filed as a part of this Registration
Statement:
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------------------------------------------------------------------------------------------
3.1 -- Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to
the Company's Registration Statement on Form S-1, filed on April 21, 1989, as amended
(Registration Number 33-28274) (the '1989 S-1'))
3.2 -- Amendment to the Certificate of Incorporation of the Company (incorporated by reference
to Exhibit 3.2 to the 1989 S-1)
3.3 -- Amendment to the Certificate of Incorporation of the Company (incorporated by reference
to Exhibit 4(d) to the Company's Registration Statement on Form S-8, filed on May 19,
1995 (Registration Number 33-59483) (the '1995 S-8')
3.4 -- Amended and Restated By-Laws of the Company (incorporated by reference to Exhibit 4(e) to
the 1995 S-8)
4.1 -- Specimen form of the Company's Common Stock certificate (incorporated by reference to
Exhibit 4.1 to the Company's Annual Report on Form 10-K for the year ended August 31,
1989, as amended (File No. 0-16986))
*5 -- Opinion of Rosenman & Colin LLP
*23.1 -- Consent of KPMG Peat Marwick LLP
*23.2 -- Consent of Grant Thornton LLP
II-1
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------------------------------------------------------------------------------------------
*23.3 -- Consent of Rosenman & Colin LLP (included in Exhibit 5)
24.1 -- Power of Attorney (incorporated by reference to this Registration Statement on Form S-1,
filed on March 17, 1997 (Registration Number 333-23471))
- ------------------
* Filed herewith.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act, and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of Nassau and State of New York on January 22, 1998.
ACCLAIM ENTERTAINMENT, INC.
By: /s/
------------------------------
Gregory E. Fischbach
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------------------- -------------------
/s/ Co-Chairman of the Board; Chief Executive January 22, 1998
- ------------------------------------------ Officer; President; Director
Gregory E. Fischbach
/s/ Co-Chairman of the Board; Senior Executive January 22, 1998
- ------------------------------------------ Vice President; Treasurer; Secretary;
James Scoroposki Acting Chief Financial Officer; Director
/s/ Director January 22, 1998
- ------------------------------------------
Kenneth L. Coleman
/s/ Director January 22, 1998
- ------------------------------------------
Bernard J. Fischbach
/s/ Director January 22, 1998
- ------------------------------------------
Robert H. Groman
/s/ Director January 22, 1998
- ------------------------------------------
James Scibelli
/s/ Director January 22, 1998
- ------------------------------------------
Michael Tannen
II-3