As Filed with the Securities and Exchange Commission on June 28, 2002
Registration No. 333-60272
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 5 to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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INTERPLAY ENTERTAINMENT CORP.
(Exact name of registrant as specified in its charter)
Delaware 33-0102707
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
16815 Von Karman Avenue, Irvine, California 92606
(949) 553-6655
(Address, including zip code, and telephone number,
including area code of registrant's principal executive offices)
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Herve Caen
Interplay Entertainment Corp.
16815 Von Karman Avenue
Irvine, California 92606
(949) 553-6655
(Name, address, including zip code, and telephone number,
including area code of agent for service)
Copy to:
John J. McIlvery, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
2029 Century Park East, 24th Floor
Los Angeles, CA 90067
(310) 209-1000
Approximate date of commencement of proposed sale to 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 interest
reinvestment plans, 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, 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. [_]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE TIME 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 COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
Page 2
SUBJECT TO COMPLETION - JUNE 28, 2002
PROSPECTUS
INTERPLAY ENTERTAINMENT CORP.
28,715,970 Shares of Common Stock
($0.001 par value)
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This prospectus relates to the offer and sale from time to time of up to
28,715,970 shares of our Common Stock that are held by Titus Interactive S.A.,
Universal Studios, Inc. and Liolios Group, Inc. The shares of our Common Stock
offered pursuant to this prospectus were originally issued to the selling
stockholders in connection with private placements of our shares, pursuant to
the exercise of warrants to purchase Common Stock or pursuant to the conversion
of shares of our Series A Preferred Stock issued to the selling stockholders in
private placement transactions. See our Certificate of Designation of Series A
Preferred Stock for more information about our Series A Preferred Stock. See
Exhibits 10.33, 10.34 and 10.35 to our Form 10-K for the fiscal year ended
December 31, 1999.
The prices at which such stockholders may sell the shares in this offering
will be determined by the prevailing market price for the shares or in
negotiated transactions. We will not receive any of the proceeds from the sale
of the shares. We will bear all expenses of registration incurred in connection
with this offering. The stockholders whose shares are being registered hereby
will bear all selling and other expenses.
Concurrent with the filing of the registration statement of which this
prospectus is a part, we have filed Amendment No. 5 to our registration
statement on Form S-3 (File No. 333-59088) relating to the offer and sale of up
to 12,283,020 shares of our common stock. We currently have an effective
registration statement on Form S-3 (File No. 333-50252) relating to the offer
and sale of up to 11,256,511 shares of our Common Stock. The aggregate number of
shares being offered, assuming the effectiveness of each of our registration
statements, is 52,255,501. The completion of this offering and the concurrent
offerings do not depend on each other.
Our Common Stock is traded on the Nasdaq SmallCap Market under the symbol
"IPLY." On June 26, 2002, the last reported sale price of our Common Stock was
$0.41 per share.
See "Risk Factors" beginning on page 4 to read about the risks you should
consider carefully before buying shares of our Common Stock.
---------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
---------
The date of this Prospectus is June 28, 2002.
TABLE OF CONTENTS
Page
ABOUT INTERPLAY...............................................................2
RECENT DEVELOPMENTS...........................................................3
RISK FACTORS..................................................................6
WHERE YOU CAN FIND ADDITIONAL INFORMATION....................................18
USE OF PROCEEDS..............................................................19
SELLING STOCKHOLDERS.........................................................19
PLAN OF DISTRIBUTION.........................................................28
LEGAL MATTERS................................................................28
EXPERTS......................................................................28
SOME OF THE STATEMENTS CONTAINED IN THIS PROSPECTUS DISCUSS FUTURE
EXPECTATIONS, CONTAIN PROJECTIONS OF RESULTS OF OPERATIONS OR FINANCIAL
CONDITION OR STATE OTHER "FORWARD-LOOKING" INFORMATION. SUCH STATEMENTS CAN BE
IDENTIFIED BY THE USE OF "FORWARD-LOOKING" TERMINOLOGY, SUCH AS "MAY," "WILL,"
"EXPECT," "ANTICIPATE," "ESTIMATE," "CONTINUE" OR OTHER SIMILAR WORDS. THESE
STATEMENTS ARE SUBJECT TO KNOWN AND UNKNOWN RISKS AND UNCERTAINTIES AND OTHER
FACTORS THAT COULD CAUSE OUR ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE
CONTEMPLATED BY THE STATEMENTS. FACTORS THAT MIGHT CAUSE SUCH A DIFFERENCE
INCLUDE, BUT ARE NOT LIMITED TO, THOSE DISCUSSED IN "RISK FACTORS" ON PAGE 4.
ABOUT INTERPLAY Interplay Entertainment Corp. is a leading developer and
publisher of interactive entertainment software for both core gamers and the
mass market. We were incorporated in the State of California in 1982 and were
reincorporated in the State of Delaware in May 1998. We are most widely known
for our titles in the action/arcade, adventure/role playing game (RPG), and
strategy/puzzle categories. We have produced titles for many of the most popular
interactive entertainment software platforms, and currently balance our
publishing and distribution business by developing interactive entertainment
software for PCs and next generation video game consoles, such as the Sony
PlayStation 2, Microsoft Xbox and Nintendo GameCube. We seek to publish
interactive entertainment software titles that are, or have the potential to
become, franchise software titles that can be leveraged across several releases
and/or platforms, and have published many such successful franchise titles to
date. In addition, we hold licenses to use popular brands, such as Advanced
Dungeons and Dragons, Star Trek and Caesars Palace, for incorporation into
certain of our products. Our executive offices are located at 16815 Von Karman
Avenue, Irvine, California 92606, and our telephone number is (949) 553-6655.
Page 2
RECENT DEVELOPMENTS
RECENT DEVELOPMENTS IN OUR BUSINESS
SALE OF SHINY ENTERTAINMENT, INC. AND RELATED MATTERS
On April 30, 2002, we consummated the sale of our majority owned
subsidiary, Shiny Entertainment, Inc. to Infogrames, Inc. pursuant to the terms
of a Stock Purchase Agreement, dated April 23, 2002, as amended, among
Interplay, Infogrames, Shiny, David Perry and Shiny Group, Inc. Pursuant to the
Purchase Agreement, Infogrames acquired all of the outstanding common stock of
Shiny for approximately $47.2 million, which was paid to or for the benefit of
Interplay as follows:
o $2,983,561 in cash paid to us at closing;
o $10,809,076 paid to us pursuant to a promissory note of Infogrames
providing for scheduled payments with the final payment due July 31,
2002;
o $26,145,925 paid directly to certain of our third party creditors; and
o $7,250,000 was paid to David Perry and Shiny Group, Inc. for their
common stock of Shiny that was issued to such parties to settle claims
relating to our original acquisition of Shiny.
Concurrently with the closing of the sale of Shiny, we settled our legal
dispute with Vivendi Universal Games, Inc., the distributor of our video games
in North America and certain other territories, relating to the parties'
distribution agreement. We also settled our legal disputes with LaSalle Business
Credit, Inc., our former bank, and Brian Fargo, our founder and former Chief
Executive Officer, relating to our April 2001 credit facility with LaSalle that
was partially guaranteed by Mr. Fargo. The disputes with Vivendi, LaSalle and
Mr. Fargo were dismissed, with prejudice, following consummation of the sale of
Shiny.
Additionally, in connection with the sale of Shiny, we issued to Warner
Bros., a division of Time Warner Entertainment Company, L.P., a Secured
Convertible Promissory Note, due April 30, 2003, in the principal amount of
$2,000,000. The note was issued in partial payment of amounts due Warner Bros.
under the parties' license agreement for the video game based on the motion
picture THE MATRIX, which is being developed by Shiny. The note is secured by
all of our assets, and may be converted by the holder thereof into shares of our
common stock on the maturity date or, to the extent there is any proposed
prepayment, within the 30 day period prior to such prepayment. The conversion
price is equal to the lower of (a) $0.304 and (b) an amount equal to the average
closing price of a share of our common stock for the five business days ending
on the day prior to the conversion date. We agreed to register with the
Securities and Exchange Commission the resale by the note holder of shares of
common stock issued upon conversion of the note.
SALE OF PUBLISHING RIGHTS TO NEVERWINTER NIGHTS
In January 2002, we sold to Infogrames Interactive, Inc. for $5.6 million,
our publishing rights to the NEVERWINTER NIGHTS video game that was being
developed for us by Bioware Corp. The proceeds from the sale represented 36.4
percent of our total revenue for the three months ended March 31, 2002, which
represented a significantly higher percentage of our total revenues from sales
and licensing of publishing rights when compared to the same period in fiscal
year 2001 and for fiscal
Page 3
years 2000 and 2001. We will not realize any future revenue from the sale or
other commercial exploitation of the NEVERWINTER NIGHTS game, except in
connection with certain rights we retained to distribute the product in South
Korea. We do not presently anticipate that our licensing and sales of publishing
rights will represent as significant a percentage of our total revenues during
the remainder of fiscal 2002.
In addition to developing and selling finished software products to
distributors, retail stores and end users, we license to others the right to
publish our software products for use on those computer platforms and video game
consoles that were not the subject of our publishing efforts. For instance, we
may publish a software title for use on the Sony PlayStation 2 video game
console and license to a third party the right to publish the same software
title for use on Nintendo GameBoy Advance or Apple Macintosh. We may license
rights to products currently in development, as well as rights to our inventory
of previously published software products. We also sell to others all of our
rights, including publishing rights, to a software product, including a software
product that is currently in development. In this instance, we my not retain any
further rights to the product, including any rights to receive royalties or
other income upon the sale of the product to end-users, such as in the case of
our sale of publishing rights to NEVERWINTER NIGHTS.
We license and sell publishing rights to finished software products and
software products in development based on several considerations, including
whether the proceeds from the license or sale to a third party would likely
exceed the net revenues we would realize if we published the software product,
our product development budget, and the likely success of the product and the
impact of such success on our reputation in the industry. We decided to sell our
publishing rights to the NEVERWINTER NIGHTS game after considering these and
other factors.
SETTLEMENT WITH BIOWARE CORP.
On January 24, 2001, Interplay and BioWare Corp. reached a settlement
ending the dispute between the two companies. Pursuant to the agreement,
Neverwinter NightsTM, developed by BioWare, will be published worldwide by
Infogrames, Inc. subject to certain of our pre-existing licenses.
RECENT DEVELOPMENTS IN OUR RELATIONSHIP WITH TITUS
Our largest stockholder, Titus Interactive, S.A., recently gained a
majority of our stockholders' voting power, providing Titus with the ability to
control the outcome of votes on proposals presented to our stockholders, as well
as the ability to elect a majority of our directors. The events relating to
Titus' gaining of majority voting power are as follows:
On September 5, 2001, we entered into a Support Agreement with Titus
providing for the nomination to our Board of Directors of a slate of six
individuals mutually acceptable to Titus and us for election as directors at our
2001 annual meeting of stockholders, and designating Nathan Peck as our Chief
Administrative Officer. Also on September 5, 2001, as part of the Support
Agreement, three of our existing directors resigned and three new directors
acceptable to Titus were appointed by the remaining directors to fill the three
vacancies. As a consequence, from September 6, 2001 until the 2001 annual
meeting, the Board of Directors consisted of five individuals nominated by
Titus, and two directors previously nominated by management.
Page 4
On September 13, 2001, our Board of Directors established an Executive
Committee, consisting of Herve Caen, our President, and Nathan Peck, to
administer and oversee all aspects of our day-to-day operations, including,
without limitation, (a) our relationship with lenders, including LaSalle
Business Credit, Inc.; (b) relations with Europlay 1, LLC, consultants retained
to effect our restructuring; (c) capital raising efforts; (d) our relationships
with vendors and licensors; (e) management of employment of officers and
employees; (f) retaining and managing outside professionals and consultants; and
(g) directing our management.
Our 2001 annual meeting was held on September 18, 2001. At the annual
meeting, the five Titus nominees and Brian Fargo, one of the directors
previously nominated by management, were elected to continue to serve as
directors. Mr. Fargo subsequently resigned from the Board and from all other
positions with the Company in January 2002.
The execution of the Support Agreement and the election to the Board of
Directors of individuals designated by Titus were the culmination of our
extensive negotiations with Titus that began in April 2001, following
termination of our stockholder agreement with Titus. Upon termination of the
stockholder agreement, Titus was no longer subject to restrictions on its
ability to vote its shares of our securities, including in connection with the
election of directors to our Board of Directors.
On May 15, 2001, we entered into an agreement with Titus, Herve Caen, our
President and an officer and director of Titus, and Brian Fargo, our Chief
Executive Officer, to govern our conduct pending the election of successors to
the members of our Board of Directors. In the May 15, 2001 agreement, we agreed,
among other things, to fix June 19, 2001 as the record date for our 2001 annual
meeting of stockholders and to hold the 2001 annual meeting no later than August
15, 2001. Herve Caen agreed not to call a special meeting of our stockholders
for the purpose of electing directors before June 1, 2001.
On July 2, 2001, pursuant to our Amended and Restated Bylaws, Titus
nominated four individuals for election to our Board of Directors at the 2001
annual meeting. On July 16, 2001, Titus nominated a fifth individual for
election to the Board of Directors.
On July 13, 2001, Titus commenced litigation in the Delaware Court of
Chancery seeking an order to require the Company to hold the 2001 annual meeting
as called for by our May 15, 2001 agreement. As a consequence of this action, we
entered into a Stipulation and Order with the court and Titus where we agreed,
among other things, to set August 13, 2001 as the record date for the meeting,
to deliver notice of the meeting to our stockholders on or before August 21,
2001, and to hold the meeting on September 18, 2001. On August 20, 2001, the
Stipulation and Order was amended to allow us to deliver notice of the meeting
by August 24, 2001.
On August 13, 2001, Titus converted 336,070 of its shares of our Series A
Preferred Stock into 6,679,306 shares of our Common Stock. Prior to the
conversion, Titus owned 719,424 shares of Series A Preferred Stock. As of the
close of business on August 13, 2001, the record date of our 2001 annual meeting
of stockholders, Titus held securities representing 51.5% of our outstanding
voting stock. As a consequence, Titus had the ability to elect at least a
majority of the directors of our Board of Directors at the 2001 annual meeting.
On March 15, 2002, Titus converted its remaining 383,354 shares of Series A
Preferred Stock into approximately 47.5 million shares of our common stock.
Titus now owns approximately 67 million shares of common stock, which represents
approximately 72 percent of our outstanding common stock immediately following
the conversion.
Page 5
We entered into the Support Agreement with Titus because of the inevitable
change in the composition of the Board of Directors that would occur at the 2001
annual meeting, and to assist in the transition of representation on the Board
in a manner that was in the best interests of the Company and its stockholders.
We anticipate that the election of a new Board of Directors will result in
changes in internal management policies and further changes to management as the
Board continues to evaluate the performance of existing personnel and performs a
thorough review of company operations. These changes could, in the short term,
result in discontinuities in our business as our new management policies are
implemented and new personnel are integrated into our operations.
RISK FACTORS
Our future operating results depend upon many factors and are subject to
various risks and uncertainties. Some of the risks and uncertainties which may
cause our operating results to vary from anticipated results or which may
materially and adversely affect our operating results are as follows:
WE CURRENTLY HAVE A NUMBER OF OBLIGATIONS THAT WE ARE UNABLE TO MEET WITHOUT
GENERATING ADDITIONAL REVENUES OR RAISING ADDITIONAL CAPITAL. IF WE CANNOT
GENERATE ADDITIONAL REVENUES OR RAISE ADDITIONAL CAPITAL IN THE NEAR FUTURE, WE
MAY BECOME INSOLVENT AND OUR STOCK WOULD BECOME ILLIQUID OR WORTHLESS.
As of March 31, 2002, our cash balance was approximately $61,000 and our
outstanding accounts payable and current debt totaled approximately $54.0
million. On April 30, 2002, in connection with the sale of Shiny, we received a
cash payment of approximately $3 million and a promissory note in the principal
amount of approximately $10.8 million payable over three months, and applied
additional proceeds to repay approximately $26.1 million in accounts payable and
current debt. Even with the proceeds we received in the Shiny sale, we will need
to raise additional financing. If we do not receive sufficient financing we may
(i) liquidate assets, (ii) seek or be forced into bankruptcy and/or (iii)
continue operations, but incur material harm to our business, operations or
financial condition. These measures could have a material adverse effect on our
ability to continue as a going concern. Additionally, because of our financial
condition, our Board of Directors has a duty to our creditors that may conflict
with the interests of our stockholders. When a Delaware corporation is operating
in the vicinity of insolvency, the Delaware courts have imposed upon the
corporation's directors a fiduciary duty to the corporation's creditors. If we
cannot obtain additional capital and become unable to pay our debts as they
become due, our Board of Directors may be required to make decisions that favor
the interests of creditors at the expense of our stockholders to fulfill its
fiduciary duty. For instance, we may be required to preserve our assets to
maximize the repayment of debts versus employing the assets to further grow our
business and increase shareholder value.
WE HAVE A HISTORY OF LOSSES, MAY NEVER GENERATE POSITIVE CASH FLOW FROM
OPERATIONS AND MAY HAVE TO FURTHER REDUCE OUR COSTS BY CURTAILING FUTURE
OPERATIONS.
For the three months ended March 31, 2002, our net income was $1.5 million
and for the year ended December 31, 2001, our net loss was $46.3 million. Since
inception, we have incurred significant losses and negative cash flow, and as of
March 31, 2002 we had an accumulated deficit of $149 million. Our ability to
fund our capital requirements out of our available cash and cash
Page 6
generated from our operations depends on a number of factors. Some of these
factors include the progress of our product development programs, the rate of
growth of our business, and our products' commercial success. If we cannot
generate positive cash flow from operations, we will have to continue to reduce
our costs and raise working capital from other sources. These measures could
include selling or consolidating certain operations, and delaying, canceling or
scaling back product development and marketing programs. These measures could
materially and adversely affect our ability to publish successful titles, and
may not be enough to permit us to operate profitability, or at all.
WE DEPEND, IN PART, ON EXTERNAL FINANCING TO FUND OUR CAPITAL NEEDS. IF WE ARE
UNABLE TO OBTAIN SUFFICIENT FINANCING ON FAVORABLE TERMS, WE MAY NOT BE ABLE TO
CONTINUE TO OPERATE OUR BUSINESS.
Historically, our business has not generated revenues sufficient to create
operating profits. To supplement our revenues, we have funded our capital
requirements with debt and equity financing. Our ability to obtain additional
equity or debt financing depends on a number of factors including our financial
performance, the overall conditions in our industry, and our credit rating. If
we cannot raise additional capital on favorable terms, we will have to reduce
our costs and sell or consolidate operations.
OUR STOCK PRICE MAY DECLINE SIGNIFICANTLY IF WE ARE DELISTED FROM THE NASDAQ
SMALLCAP MARKET.
On May 16, 2002, the listing of our common stock was moved from the Nasdaq
National Market System to the Nasdaq SmallCap Market System. We currently are
not in compliance with the listing requirements of the Nasdaq SmallCap Market.
If we fail to gain compliance, the Company expects to be notified by Nasdaq that
its securities will be delisted. If this occurs, trading of our common stock may
be conducted in the over-the-counter market on the "pink sheets" or, if
available, the NASD's "Electronic Bulletin Board." In any of those cases,
investors could find it more difficult to buy or sell, or to obtain accurate
quotations as to the value of our common stock. The trading price per share of
our common stock likely would be reduced as a result.
TITUS INTERACTIVE SA CONTROLS A MAJORITY OF OUR VOTING STOCK AND CAN ELECT A
MAJORITY OF OUR BOARD OF DIRECTORS AND PREVENT AN ACQUISITION OF INTERPLAY THAT
IS FAVORABLE TO OUR OTHER STOCKHOLDERS.
On March 15, 2002, Titus converted its remaining 383,354 shares of Series A
Preferred Stock into approximately 47.5 million shares of our common stock.
Titus now owns approximately 67 million shares of common stock, which represents
approximately 72 percent of our outstanding common stock, our only voting
security, immediately following the conversion. As a consequence, Titus can
control substantially all matters requiring stockholder approval, including the
election of directors, subject to our stockholders' cumulative voting rights,
and the approval of mergers or other business combination transactions. At our
2001 annual stockholders meeting on September 18, 2001, Titus exercised its
voting power to elect a majority of our Board of Directors. Three of the seven
members of the Board are employees or directors of Titus, and Titus' Chief
Executive Officer serves as our President and interim Chief Executive Officer.
This concentration of voting power could discourage or prevent a change in
control that otherwise could result in a premium in the price of our common
stock.
Page 7
A SIGNIFICANT PERCENTAGE OF OUR REVENUES DEPEND ON OUR DISTRIBUTORS' DILIGENT
SALES EFFORTS AND OUR DISTRIBUTORS' AND RETAIL CUSTOMERS' TIMELY PAYMENTS TO US.
Since February 1999, Virgin has been the exclusive distributor for most of
our products in Europe, the Commonwealth of Independent States, Africa and the
Middle East. Our agreement with Virgin expires in February 2006. In August 2001,
we entered into a Distribution Agreement with Vivendi Universal Games, Inc.,
(formerly known as Vivendi Universal Interactive Publishing North America), or
"Vivendi," pursuant to which Vivendi distributes substantially all our products
in North America, as well as in South America, South Africa, Korea, Taiwan and
Australia. Our agreement with Vivendi expires in December 2002.
Virgin and Vivendi each have exclusive rights to distribute our products in
substantial portions of the world. As a consequence, the distribution of our
products by Virgin and Vivendi will generate a substantial majority of our
revenues, and proceeds from Virgin and Vivendi from the distribution of our
products will constitute a substantial majority of our operating cash flows.
Therefore, our revenues and cash flows could fall significantly and our business
and financial results could suffer material harm if:
o either Virgin or Vivendi fails to deliver to us the full proceeds owed
us from distribution of our products;
o either Virgin or Vivendi fails to effectively distribute our products
in their respective territories; or
o either Virgin or Vivendi otherwise fails to perform under their
respective distribution agreement.
We typically sell to distributors and retailers on unsecured credit, with
terms that vary depending upon the customer and the nature of the product. We
confront the risk of non-payment from our customers, whether due to their
financial inability to pay us, or otherwise. In addition, while we maintain a
reserve for uncollectible receivables, the reserve may not be sufficient in
every circumstance. As a result, a payment default by a significant customer
could cause material harm to our business.
THE TERMINATION OF OUR EXISTING CREDIT AGREEMENT HAS RESULTED IN A SUBSTANTIAL
REDUCTION IN THE CASH AVAILABLE TO FINANCE OUR OPERATIONS.
Pursuant to our credit agreement with LaSalle Business Credit Inc., or
"LaSalle", entered into in April 2001, we agreed to certain covenants. In
October 2001, LaSalle notified us that the credit agreement was being terminated
as a result of our failure to comply with some of those covenants and we would
no longer be able to continue to draw on the credit facility to fund future
operations. Because we depend on a credit agreement to fund our operations,
LaSalle's termination of the credit agreement has significantly impeded our
ability to fund our operations and has caused material harm to our business. We
will need to enter into a new credit agreement to fund our operations. There can
be no assurance that we will be able to enter into a new credit agreement or
that if we do enter into a new credit agreement, it will be on terms favorable
to us.
Page 8
THE UNPREDICTABILITY OF FUTURE RESULTS MAY CAUSE OUR STOCK PRICE TO REMAIN
DEPRESSED OR TO DECLINE FURTHER.
Our operating results have fluctuated in the past and may fluctuate in the
future due to several factors, some of which are beyond our control. These
factors include:
o demand for our products and our competitors' products;
o the size and rate of growth of the market for interactive
entertainment software;
o changes in personal computer and video game console platforms;
o the timing of announcements of new products by us and our competitors
and the number of new products and product enhancements released by us
and our competitors;
o changes in our product mix;
o the number of our products that are returned; and
o the level of our international and original equipment manufacturer
royalty and licensing net revenues.
Many factors make it difficult to accurately predict the quarter in which
we will ship our products. Some of these factors include:
o the uncertainties associated with the interactive entertainment
software development process;
o approvals required from content and technology licensors; and
o the timing of the release and market penetration of new game hardware
platforms.
It is likely that in some future periods our operating results will not
meet the expectations of the public or of public market analysts. Any
unanticipated change in revenues or operating results is likely to cause our
stock price to fluctuate since such changes reflect new information available to
investors and analysts. New information may cause securities analysts and
investors to revalue our stock and this may cause fluctuations in our stock
price.
THERE ARE HIGH FIXED COSTS TO DEVELOPING OUR PRODUCTS. IF OUR REVENUES DECLINE
BECAUSE OF DELAYS IN THE INTRODUCTION OF OUR PRODUCTS, OR IF THERE ARE
SIGNIFICANT DEFECTS OR DISSATISFACTION WITH OUR PRODUCTS, OUR BUSINESS COULD BE
HARMED.
For the three months ended March 31, 2002, our net income was $1.5 million.
We have incurred significant net losses in recent periods, including a net loss
of $46.3 million for the year ended December 31, 2001. Our losses stem partly
from the significant costs we incur to develop our entertainment software
products. Moreover, a significant portion of our operating expenses is
relatively fixed, with planned expenditures based largely on sales forecasts. At
the same time, most of our products have a relatively short life cycle and sell
for a limited period of time after their initial release, usually less than one
year.
Page 9
Relatively fixed costs and short windows in which to earn revenues mean
that sales of new products are important in enabling us to recover our
development costs, to fund operations and to replace declining net revenues from
older products. Our failure to accurately assess the commercial success of our
new products, and our delays in releasing new products, could reduce our net
revenues and our ability to recoup development and operational costs.
OUR GROWING DEPENDENCE ON REVENUES FROM GAME CONSOLE SOFTWARE PRODUCTS INCREASES
OUR EXPOSURE TO SEASONAL FLUCTUATIONS IN THE PURCHASES OF GAME CONSOLES.
The interactive entertainment software industry is highly seasonal, with
the highest levels of consumer demand occurring during the year-end holiday
buying season. As a result, our net revenues, gross profits and operating income
have historically been highest during the second half of the year. The impact of
this seasonality will increase as we rely more heavily on game console net
revenues in the future. Seasonal fluctuations in revenues from game console
products may cause material harm to our business and financial results.
IF OUR PRODUCTS DO NOT ACHIEVE BROAD MARKET ACCEPTANCE, OUR BUSINESS COULD BE
HARMED SIGNIFICANTLY.
Consumer preferences for interactive entertainment software are always
changing and are extremely difficult to predict. Historically, few interactive
entertainment software products have achieved continued market acceptance.
Instead, a limited number of releases have become "hits" and have accounted for
a substantial portion of revenues in our industry. Further, publishers with a
history of producing hit titles have enjoyed a significant marketing advantage
because of their heightened brand recognition and consumer loyalty. We expect
the importance of introducing hit titles to increase in the future. We cannot
assure you that our new products will achieve significant market acceptance, or
that we will be able to sustain this acceptance for a significant length of time
if we achieve it.
We believe that our future revenue will continue to depend on the
successful production of hit titles on a continuous basis. Because we introduce
a relatively limited number of new products in a given period, the failure of
one or more of these products to achieve market acceptance could cause material
harm to our business. Further, if our products do not achieve market acceptance,
we could be forced to accept substantial product returns or grant significant
pricing concessions to maintain our relationship with retailers and our access
to distribution channels. If we are forced to accept significant product returns
or grant significant pricing concessions, our business and financial results
could suffer material harm.
OUR RELIANCE ON THIRD PARTY SOFTWARE DEVELOPERS SUBJECTS US TO THE RISKS THAT
THESE DEVELOPERS WILL NOT SUPPLY US WITH HIGH QUALITY PRODUCTS IN A TIMELY
MANNER OR ON ACCEPTABLE TERMS.
Third party interactive entertainment software developers develop many of
our software products. Since we depend on these developers in the aggregate, we
remain subject to the following risks:
o limited financial resources may force developers out of business prior
to their completion of projects for us or require us to fund
additional costs; and
Page 10
o the possibility that developers could demand that we renegotiate our
arrangements with them to include new terms less favorable to us.
Increased competition for skilled third party software developers also has
compelled us to agree to make advance payments on royalties and to guarantee
minimum royalty payments to intellectual property licensors and game developers.
Moreover, if the products subject to these arrangements, are not delivered
timely, or with acceptable quality, or do not generate sufficient sales volumes
to recover these royalty advances and guaranteed payments, we would have to
write-off unrecovered portions of these payments, which could cause material
harm to our business and financial results.
IF WE FAIL TO ANTICIPATE CHANGES IN VIDEO GAME PLATFORMS AND TECHNOLOGY, OUR
BUSINESS MAY BE HARMED.
The interactive entertainment software industry is subject to rapid
technological change. New technologies could render our current products or
products in development obsolete or unmarketable. Some of these new technologies
include:
o operating systems such as Microsoft Windows XP;
o technologies that support games with multi-player and online features;
o new media formats such as online delivery and digital video disks, or
DVDs; and
o recent releases of new video game consoles such as the Sony
Playstation 2, the Nintendo Gamecube and the Microsoft Xbox.
We must continually anticipate and assess the emergence of, and market
acceptance of, new interactive entertainment software platforms well in advance
of the time the platform is introduced to consumers. Because product development
cycles are difficult to predict, we must make substantial product development
and other investments in a particular platform well in advance of introduction
of the platform. If the platforms for which we develop new software products or
modify existing products are not released on a timely basis or do not attain
significant market penetration, or if we develop products for a delayed or
unsuccessful platform, our business and financial results could suffer material
harm.
New interactive entertainment software platforms and technologies also may
undermine demand for products based on older technologies. Our success will
depend in part on our ability to adapt our products to those emerging game
platforms that gain widespread consumer acceptance. Our business and financial
results may suffer material harm if we fail to:
o anticipate future technologies and platforms and the rate of market
penetration of those technologies and platforms;
o obtain licenses to develop products for those platforms on favorable
terms; or
o create software for those new platforms on a timely basis.
WE COMPETE WITH A NUMBER OF COMPANIES THAT HAVE SUBSTANTIALLY GREATER FINANCIAL,
MARKETING AND PRODUCT DEVELOPMENT RESOURCES THAN WE DO.
The interactive entertainment software industry is intensely competitive
and new interactive entertainment software programs and platforms are regularly
introduced. The greater resources of
Page 11
our competitors permit them to undertake more extensive marketing campaigns,
adopt more aggressive pricing policies, and pay higher fees than we can to
licensors of desirable motion picture, television, sports and character
properties and to third party software developers.
We compete primarily with other publishers of personal computer and video
game console interactive entertainment software. Significant competitors include
Electronic Arts Inc., Activision, Inc., and Vivendi Universal Interactive
Publishing.
Many of these competitors have substantially greater financial, technical
and marketing resources, larger customer bases, longer operating histories,
greater name recognition and more established relationships in the industry than
we do. Competitors with more extensive customer bases, broader customer
relationships and broader industry alliances may be able to use such resources
to their advantage in competitive situations, including establishing
relationships with many of our current and potential customers.
In addition, integrated video game console hardware/software companies such
as Sony Computer Entertainment, Nintendo, and Microsoft Corporation compete
directly with us in the development of software titles for their respective
platforms and they have generally discretionary approval authority over the
products we develop for their platforms. Large diversified entertainment
companies, such as The Walt Disney Company, many of which own substantial
libraries of available content and have substantially greater financial
resources, may decide to compete directly with us or to enter into exclusive
relationships with our competitors. We also believe that the overall growth in
the use of the Internet and online services by consumers may pose a competitive
threat if customers and potential customers spend less of their available home
personal computing time using interactive entertainment software and more time
using the Internet and online services.
WE MAY FACE DIFFICULTY IN OBTAINING ACCESS TO RETAILERS NECESSARY TO MARKET AND
SELL OUR PRODUCTS EFFECTIVELY.
Retailers typically have a limited amount of shelf space and promotional
resources, and there is intense competition among consumer software producers,
and in particular producers of interactive entertainment software products, for
high quality retail shelf space and promotional support from retailers. To the
extent that the number of consumer software products and computer platforms
increases, competition for shelf space may intensify and require us to increase
our marketing expenditures. Due to increased competition for limited shelf
space, retailers and distributors are in an improving position to negotiate
favorable terms of sale, including price discounts, price protection, marketing
and display fees and product return policies. Our products constitute a
relatively small percentage of any retailer's sales volume, and we cannot assure
you that retailers will continue to purchase our products or to provide our
products with adequate levels of shelf space and promotional support. A
prolonged failure in this regard may cause material harm to our business.
We currently sell our products to retailers through external distribution
partners and co-publishing deals. We also derive revenues from licensing of our
products to hardware companies (or OEM), selling subscriptions on our online
gaming services, selling advertisements on our online web pages and selling our
packaged goods through our online store. The loss of, or significant reduction
in sales to, any of our principal distributors could cause material harm to our
business.
Page 12
OUR CUSTOMERS HAVE THE ABILITY TO RETURN OUR PRODUCTS OR TO RECEIVE PRICING
CONCESSIONS AND SUCH RETURNS AND CONCESSIONS COULD REDUCE OUR NET REVENUES AND
RESULTS OF OPERATIONS.
We are exposed to the risk of product returns and pricing concessions with
respect to our distributors and retailers. We allow distributors and retailers
to return defective, shelf-worn and damaged products in accordance with
negotiated terms, and also offer a 90-day limited warranty to our end users that
our products will be free from manufacturing defects. In addition, we provide
pricing concessions to our customers to manage our customers' inventory levels
in the distribution channel. We could be forced to accept substantial product
returns and provide pricing concessions to maintain our relationships with
retailers and our access to distribution channels. Product return and pricing
concessions that exceed our reserves have caused material harm to our results of
operations in the recent past and may do so again in the future.
SUBSTANTIAL SALES OF OUR COMMON STOCK BY OUR EXISTING STOCKHOLDERS MAY REDUCE
THE PRICE OF OUR STOCK AND DILUTE EXISTING STOCKHOLDERS.
We have filed registration statements covering a total of approximately 53
million shares of our common stock for the benefit of those shareholders.
Assuming the effectiveness of these registration statements, these shares would
be eligible for immediate resale in the public market. Included in these
registrations are shares of common stock owned by Universal Studios, Inc. (now
owned by Vivendi), which beneficially owns approximately 5% of our common stock,
Titus Interactive S.A., which beneficially owns approximately 72% of our common
stock, and investors that acquired shares of common stock in our April 2001
financing.
Future sales of common stock by these holders could substantially increase
the volume of shares being publicly traded and could decrease the trading price
of our common stock and, therefore, the price at which you could resell your
shares. A lower market price for our shares also might impair our ability to
raise additional capital through the sale of our equity securities. Any future
sales of our stock would also dilute existing stockholders.
WE DEPEND UPON THIRD PARTY LICENSES OF CONTENT FOR MANY OF OUR PRODUCTS.
Many of our current and planned products, such as our Star Trek, Advanced
Dungeons and Dragons and Caesars Palace titles, are lines based on original
ideas or intellectual properties licensed from other parties. From time to time
we may not be in compliance with certain terms of these license agreements, and
our ability to market products based on these licenses may be negatively
impacted. Moreover, disputes regarding these license agreements may also
negatively impact our ability to market products based on these licenses.
Additionally, we may not be able to obtain new licenses, or maintain or renew
existing licenses, on commercially reasonable terms, if at all. If we are unable
to maintain current licenses or obtain new licenses for the underlying content
that we believe offers the greatest consumer appeal, we would either have to
seek alternative, potentially less appealing licenses, or release products
without the desired underlying content, either of which could limit our
commercial success and cause material harm to our business.
WE MAY FAIL TO MAINTAIN EXISTING LICENSES, OR OBTAIN NEW LICENSES FROM HARDWARE
COMPANIES ON ACCEPTABLE TERMS OR TO OBTAIN RENEWALS OF EXISTING OR FUTURE
LICENSES FROM LICENSORS.
We are required to obtain a license to develop and distribute software for
each of the video game console platforms for which we develop products,
including a separate license for each of
Page 13
North America, Japan and Europe. We have obtained licenses to develop software
for the Sony PlayStation and PlayStation 2, as well as video game platforms from
Nintendo and Microsoft. In addition, each of these companies has the right to
approve the technical functionality and content of our products for their
platforms prior to distribution. Due to the competitive nature of the approval
process, we must make significant product development expenditures on a
particular product prior to the time we seek these approvals. Our inability to
obtain these approvals could cause material harm to our business.
OUR SALES VOLUME AND THE SUCCESS OF OUR PRODUCTS DEPENDS IN PART UPON THE NUMBER
OF PRODUCT TITLES DISTRIBUTED BY HARDWARE COMPANIES FOR USE WITH THEIR VIDEO
GAME PLATFORMS.
Even after we have obtained licenses to develop and distribute software, we
depend upon hardware companies such as Sony Computer Entertainment, Nintendo and
Microsoft, or their designated licensees, to manufacture the CD-ROM or DVD-ROM
media discs that contain our software. These discs are then run on the
companies' video game consoles. This process subjects us to the following risks:
o we are required to submit and pay for minimum numbers of discs we want
produced containing our software, regardless of whether these discs
are sold, shifting onto us the financial risk associated with poor
sales of the software developed by us; and
o reorders of discs are expensive, reducing the gross margin we receive
from software releases that have stronger sales than initially
anticipated and that require the production of additional discs.
As a result, video game console hardware licensors can shift onto us the
risk that if actual retailer and consumer demand for our interactive
entertainment software differs from our forecasts, we must either bear the loss
from overproduction or the lower per-unit revenues associated with producing
additional discs. Either situation could lead to material reductions in our net
revenues.
WE HAVE A LIMITED NUMBER OF KEY PERSONNEL. THE LOSS OF ANY SINGLE KEY PERSON OR
THE FAILURE TO HIRE AND INTEGRATE CAPABLE NEW KEY PERSONNEL COULD HARM OUR
BUSINESS.
Our interactive entertainment software requires extensive time and creative
effort to produce and market. The production of this software is closely tied to
the continued service of our key product design, development, sales, marketing
and management personnel. Our future success also will depend upon our ability
to attract, motivate and retain qualified employees and contractors,
particularly software design and development personnel. Competition for highly
skilled employees is intense, and we may fail to attract and retain such
personnel. Alternatively, we may incur increased costs in order to attract and
retain skilled employees. Our failure to retain the services of key personnel,
including competent executive management, or to attract and retain additional
qualified employees could cause material harm to our business.
OUR INTERNATIONAL SALES EXPOSE US TO RISKS OF UNSTABLE FOREIGN ECONOMIES,
DIFFICULTIES IN COLLECTION OF REVENUES, INCREASED COSTS OF ADMINISTERING
INTERNATIONAL BUSINESS TRANSACTIONS AND FLUCTUATIONS IN EXCHANGE RATES.
Our net revenues from international sales accounted for approximately 10
percent and 25 percent of our total net revenues for the three months ended
March 31, 2002 and 2001, respectively.
Page 14
Most of these revenues come from our distribution relationship with Virgin,
pursuant to which Virgin became the exclusive distributor for most of our
products in Europe, the Commonwealth of Independent States, Africa and the
Middle East. To the extent our resources allow, we intend to continue to expand
our direct and indirect sales, marketing and product localization activities
worldwide.
Our international sales and operations are subject to a number of inherent
risks, including the following:
o recessions in foreign economies may reduce purchases of our products;
o translating and localizing products for international markets is time-
consuming and expensive;
o accounts receivable are more difficult to collect and when they are
collectible, they may take longer to collect;
o regulatory requirements may change unexpectedly;
o it is difficult and costly to staff and manage foreign operations;
o fluctuations in foreign currency exchange rates;
o political and economic instability;
o our dependence on Virgin as our exclusive distributor in Europe, the
Commonwealth of Independent States, Africa and the Middle East; and
o delays in market penetration of new platforms in foreign territories.
These factors may cause material declines in our future international net
revenues and, consequently, could cause material harm to our business.
A significant, continuing risk we face from our international sales and
operations stems from currency exchange rate fluctuations. Because we do not
engage in currency hedging activities, fluctuations in currency exchange rates
have caused significant reductions in our net revenues from international sales
and licensing due to the loss in value upon conversion into U.S. Dollars. We may
suffer similar losses in the future.
INADEQUATE INTELLECTUAL PROPERTY PROTECTIONS COULD PREVENT US FROM ENFORCING OR
DEFENDING OUR PROPRIETARY TECHNOLOGY.
We regard our software as proprietary and rely on a combination of patent,
copyright, trademark and trade secret laws, employee and third party
nondisclosure agreements and other methods to protect our proprietary rights. We
own or license various copyrights and trademarks, and hold the rights to one
patent application related to one of our titles. While we provide "shrinkwrap"
license agreements or limitations on use with our software, it is uncertain to
what extent these agreements and limitations are enforceable. We are aware that
some unauthorized copying occurs within the computer software industry, and if a
significantly greater amount of unauthorized copying of our interactive
entertainment software products were to occur, it could cause material harm to
our business and financial results.
Policing unauthorized use of our products is difficult, and software piracy
can be a persistent problem, especially in some international markets. Further,
the laws of some countries where our products are or may be distributed either
do not protect our products and intellectual property rights to the same extent
as the laws of the United States, or are weakly enforced. Legal protection of
our
Page 15
rights may be ineffective in such countries, and as we leverage our software
products using emerging technologies such as the Internet and online services,
our ability to protect our intellectual property rights and to avoid infringing
others' intellectual property rights may diminish. We cannot assure you that
existing intellectual property laws will provide adequate protection for our
products in connection with these emerging technologies.
WE MAY UNINTENTIONALLY INFRINGE ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS,
WHICH COULD EXPOSE US TO SUBSTANTIAL DAMAGES OR RESTRICT OUR OPERATIONS.
As the number of interactive entertainment software products increases and
the features and content of these products continue to overlap, software
developers increasingly may become subject to infringement claims. Although we
believe that we make reasonable efforts to ensure that our products do not
violate the intellectual property rights of others, it is possible that third
parties still may claim infringement. From time to time, we receive
communications from third parties regarding such claims. Existing or future
infringement claims against us, whether valid or not, may be time consuming and
expensive to defend. Intellectual property litigation or claims could force us
to do one or more of the following:
o cease selling, incorporating or using products or services that
incorporate the challenged intellectual property;
o obtain a license from the holder of the infringed intellectual
property, which license, if available at all, may not be available on
commercially favorable terms; or
o redesign our interactive entertainment software products, possibly in
a manner that reduces their commercial appeal.
Any of these actions may cause material harm to our business and financial
results.
OUR SOFTWARE MAY BE SUBJECT TO GOVERNMENTAL RESTRICTIONS OR RATING SYSTEMS.
Legislation is periodically introduced at the state and federal levels in
the United States and in foreign countries to establish a system for providing
consumers with information about graphic violence and sexually explicit material
contained in interactive entertainment software products. In addition, many
foreign countries have laws that permit governmental entities to censor the
content of interactive entertainment software. We believe that mandatory
government-run rating systems eventually will be adopted in many countries that
are significant markets or potential markets for our products. We may be
required to modify our products to comply with new regulations, which could
delay the release of our products in those countries.
Due to the uncertainties regarding such rating systems, confusion in the
marketplace may occur, and we are unable to predict what effect, if any, such
rating systems would have on our business. In addition to such regulations,
certain retailers have in the past declined to stock some of our products
because they believed that the content of the packaging artwork or the products
would be offensive to the retailer's customer base. While to date these actions
have not caused material harm to our business, we cannot assure you that similar
actions by our distributors or retailers in the future would not cause material
harm to our business.
Page 16
WE MAY FAIL TO IMPLEMENT INTERNET-BASED PRODUCT OFFERINGS SUCCESSFULLY.
We seek to establish an online presence by creating and supporting sites on
the Internet and by offering our products through these sites. Our ability to
establish an online presence and to offer online products successfully depends
on:
o increases in the Internet's data transmission capability;
o growth in an online market sizeable enough to make commercial
transactions profitable.
Because global commerce and the exchange of information on the Internet and
other open networks are relatively new and evolving, a viable commercial
marketplace on the Internet may not emerge and complementary products for
providing and carrying Internet traffic and commerce may not be developed. Even
with the proper infrastructure, we may fail to develop a profitable online
presence or to generate any significant revenue from online product offerings in
the near future, or at all.
If the Internet does not become a viable commercial marketplace, or if this
development occurs but is insufficient to meet our needs or if such development
is delayed beyond the point where we plan to have established an online service,
our business and financial condition could suffer material harm.
SOME PROVISIONS OF OUR CHARTER DOCUMENTS MAY MAKE TAKEOVER ATTEMPTS DIFFICULT,
WHICH COULD DEPRESS THE PRICE OF OUR STOCK AND INHIBIT OUR ABILITY TO RECEIVE A
PREMIUM PRICE FOR YOUR SHARES.
Our Board of Directors has the authority, without any action by the
stockholders, to issue up to 5,000,000 shares of preferred stock and to fix the
rights and preferences of such shares. In addition, our certificate of
incorporation and bylaws contain provisions that:
o eliminate the ability of stockholders to act by written consent and to
call a special meeting of stockholders; and
o require stockholders to give advance notice if they wish to nominate
directors or submit proposals for stockholder approval.
These provisions may have the effect of delaying, deferring or preventing a
change in control, may discourage bids for our common stock at a premium over
its market price and may adversely affect the market price, and the voting and
other rights of the holders, of our common stock.
OUR STOCK PRICE IS VOLATILE.
The trading price of our common stock has previously fluctuated and could
continue to fluctuate in response to factors that are largely beyond our
control, and which may not be directly related to the actual operating
performance of our business, including:
o general conditions in the computer, software, entertainment, media or
electronics industries;
o changes in earnings estimates or buy/sell recommendations by analysts;
Page 17
o investor perceptions and expectations regarding our products, plans
and strategic position and those of our competitors and customers; and
o price and trading volume volatility of the broader public markets,
particularly the high technology sections of the market.
WE DO NOT PAY DIVIDENDS ON OUR COMMON STOCK.
We have not paid any cash dividends on our common stock and do not
anticipate paying dividends in the foreseeable future.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed a registration statement on Form S-3 with the SEC with
respect to the Common Stock offered by this prospectus. This prospectus, which
constitutes a part of the registration statement, does not contain all of the
information set forth in the registration statement or the exhibits and
schedules that are part of the registration statement. You may read and copy any
document we file at the SEC's public reference rooms in Washington D.C. We refer
you to the registration statement and the exhibits and schedules thereto for
further information with respect to us and our Common Stock. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference room. Our SEC
filings are also available to the public from the SEC's website at www.sec.gov.
We are subject to the information and periodic reporting requirements of
the Securities Exchange Act and, in accordance with those requirements, will
continue to file periodic reports, proxy statements and other information with
the SEC. These periodic reports, proxy statements and other information will be
available for inspection and copying at the SEC's public reference rooms and the
SEC's website referred to above.
The SEC allows us to "incorporate by reference" the information we file
with the SEC, which means that we can disclose important information to you by
referring to those documents. We incorporate by reference the documents listed
below and any additional documents filed by us with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until this offering of
securities is terminated. The information we incorporate by reference is an
important part of this prospectus, and any information that we file later with
the SEC will automatically update and supersede this information.
The documents we incorporate by reference are:
1. Our Annual Report on Form 10-K for the year ended December 31, 2001;
2. Amendment No. 1 to our Annual Report on Form 10-K as filed on April
30, 2002;
3. Amendment No. 2 to our Annual Report on Form 10-K as filed on May 2,
2002;
4. Amendment No. 4 to our Annual Report on Form 10-K for the year ended
December 31, 2000 as filed on May 22, 2002;
5. Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2002;
Page 18
6. Amendment No. 1 to our Quarterly Report on Form 10-Q for the quarter
ended September 30, 2001 as filed on May 30, 2002;
7. Our Current Report on Form 8-K as filed on January 28, 2002;
8. Our Current Report on Form 8-K as filed on January 28, 2002;
9. Our Current Report on Form 8-K as filed on February 21, 2002;
10. Our Current Report on Form 8-K as filed on April 10, 2002;
11. Our Current Report on Form 8-K as filed on April 29, 2002;
12. Our Current Report on Form 8-K as filed on May 6, 2002;
13. Our Amended Current Report on Form 8-K/A as filed on May 17, 2002;
14. The description of our capital stock contained in our Registration
Statement on Form 8-A; and
15. All other reports filed by us pursuant to Section 13(a) or 15(d) of
the SEC Exchange Act since December 31, 2001.
You may request a copy of these filings, at no cost, by writing or calling
us at Interplay Entertainment Corp., 16815 Von Karman Avenue, Irvine, California
92606, telephone number (949) 553-6655, Attention: Scott Luirette.
You should rely only on the information contained in this prospectus or any
supplement and in the documents incorporated by reference above. We have not
authorized anyone else to provide you with different information. You should not
assume that the information in this prospectus or any supplement or in the
documents incorporated by reference is accurate on any date other than the date
on the front of those documents.
USE OF PROCEEDS
The proceeds from the sale of each selling stockholder's Common Stock will
belong to that selling stockholder. We will not receive any proceeds from such
sales.
SELLING STOCKHOLDERS
Pursuant to a Stock Purchase Agreement dated April 14, 2000, we agreed to
file a registration statement with the SEC to register the shares of our Common
Stock issuable to Titus Interactive SA upon the conversion of our Series A
Preferred Stock and the exercise of warrants to purchase our Common Stock issued
to Titus on that date, and to keep the registration statement effective until
such shares are sold. Herve Caen and Eric Caen, both executives, officers and
directors of Titus, have been members of our Board of Directors since November
1999 and Herve Caen has served as our President since November 1999 and as our
interim Chief Executive Officer since January 2002. Titus currently owns all of
the equity interest in the parent entity of Virgin Interactive Entertainment
Limited, our exclusive distributor in Europe and certain other countries.
Page 19
Pursuant to a Shareholders' Agreement dated March 30, 1994, as amended
October 8, 1996, we have agreed to file a registration statement with the SEC to
register all of the shares of our Common Stock owned by Universal Studios, Inc.,
and to keep the registration statement effective until such shares are sold.
Pursuant to a Financial Public Relations Agreement dated August 7, 2000
(the "Liolios Agreement"), we agreed to file a registration statement with the
SEC to register the shares of our Common Stock issuable to Liolios Group, Inc.
upon exercise of a warrant to purchase our Common Stock dated April 25, 2001.
Under such warrant, 25,000 shares of our Common Stock are exercisable 90 days
after the date of the Liolios Agreement at a price of $3.00 per share, 25,000
shares are exercisable 180 days after the date of the Liolios Agreement at a
price of $4.00 per share, 25,000 shares are exercisable 270 days after the date
of the Liolios Agreement at a price of $5.00 per share, and 25,000 shares are
exercisable 360 days after the date of the Liolios Agreement at a price of $6.00
per share.
The registration statement of which this prospectus is a part was filed
with the SEC pursuant to such agreements. The following table sets forth: (1)
the name of each of the stockholders for whom we are registering shares under
this registration statement; (2) the number of shares of our Common Stock owned
by each such stockholder prior to this offering (including all shares of Common
Stock issuable upon the exercise of the warrants as described above, whether or
not exercisable within 60 days of the date hereof), and (3) the number of
shares, and (if one percent or more) the percentage of the total of the
outstanding shares, of our Common Stock to be owned by each such stockholder
after this offering, assuming that all of the shares of our Common Stock owned
by each such stockholder are sold.
PERCENTAGE OF
COMMON STOCK COMMON STOCK
COMMON STOCK COMMON STOCK OWNED UPON OWNED UPON
OWNED PRIOR BEING OFFERED COMPLETION OF COMPLETION OF
TO THE PURSUANT TO THIS THIS OFFERING THIS OFFERING
NAME OFFERING PROSPECTUS (1) (1)
- ---------------------------- ------------ ---------------- ------------- -------------
Titus Interactive, SA (2) 67,188,521 23,957,754 43,230,767 46.5%
Universal Studios, Inc. (3) 4,658,216 4,658,216 0 *
Liolios Group, Inc. 100,000 100,000 0 *
<FN>
- -----------------
* less than 1%
(1) For purposes of determining the number of and percentage of Common
Stock owned upon completion of this offering, we have assumed that (a) no
selling stockholder will have acquired additional shares of our Common Stock
prior to completion of this offering, and (b) Titus will have sold none of its
remaining 10,556,755 shares of Common Stock it owns that we have registered for
resale on a prior registration statement on Form S-3, No. 333-50252.
(2) The number of shares of Common Stock that Titus beneficially owned
prior to this offering includes (a) the 4,545,455 shares of Common Stock we
issued Titus in connection with the Stock Purchase Agreement dated March 18,
1999, (b) the 6,250,000 shares of Common Stock we issued Titus in connection
with the Stock Purchase Agreement dated July 20, 1999, (c) 54,171,468 shares of
Common Stock issued upon conversion of 719,424 shares of Series A Preferred
Stock, (d) the 2,000,000 shares of Common Stock transferred to Titus by Brian
Fargo pursuant to an Exchange
Page 20
Agreement dated July 20, 1999 in exchange for 96,666 shares of Titus Common
Stock, and (e) 460,298 shares of stock subject to a warrant exercisable within
sixty (60) days of the date of this prospectus.
(3) The number of shares beneficially owned by Universal prior to this
offering includes 1,824,897 shares of Common Stock purchased from the Company
and 1,216,598 shares of Common Stock purchased from Mr. Fargo pursuant to a
Stock Purchase Agreement and an aggregate of 1,616,721 additional shares of
Common Stock purchased from Mr. Fargo in April of 1995 and 1996 pursuant to an
Option Agreement, dated March 30, 1994.
</FN>
OUR RELATIONSHIPS WITH THE SELLING STOCKHOLDERS
TRANSACTIONS WITH TITUS AND FARGO
We have entered into a series of equity investment transactions with Titus
Interactive SA, or "Titus", by which Titus acquired newly-issued shares of our
stock. In addition, Titus also acquired previously-issued shares of our stock on
the open market and from our Chief Executive Officer, and converted a portion of
its preferred-stock holdings into common stock. These transactions are
summarized in the following table, and discussed in greater detail below.
AMOUNT WE
DATE TRANSACTION RECEIVED SHARES OF OUR STOCK
- --------------- - ------------------------ ------------- --------------------------
February 1999 Titus open market -- 21,800 common stock
purchase of stock
March 1999 Sale of common stock $10,000,000 4,545,455 common stock
November 1999 Sale of common stock $25,000,000 6,250,000 common stock
November 1999 Titus acquisition of -- 2,000,000 common stock
stock from our CEO
April 2000 Sale of preferred stock $20,000,000 719,424 preferred stock
August 2001 Conversion of 6,679,306 common stock
preferred stock to -- converted from 336,070
common stock shares of preferred stock
March 2002 Conversion of -- 47,492,162 common stock
preferred stock to converted from 383,354
common stock shares of preferred stock
As a result of the above transactions, and following the sale by Titus of
an aggregate of 260,500 shares of common stock, Titus currently holds 66,728,223
shares of our common stock.
In March 1999, we entered into a Stock Purchase Agreement with Titus
Interactive SA and Brian Fargo ("Titus 1"). Under the terms of Titus 1, we sold
2.5 million shares of our common stock to Titus for $10 million. Pursuant to the
terms of Titus 1, the purchase price was recalculated based on the average
closing price per share of our common stock as reported by Nasdaq during: (i)
the ten trading days ended June 30, 1999; and (ii) the ten trading days ended
August 20, 1999. Pursuant to the June 30, 1999 adjustment, we issued to Titus an
additional 1,161,771 shares of our common stock without additional
consideration, and issued to Titus a promissory note in the principal amount of
approximately $1.1 million, bearing interest at the rate of 10% per year and due
January 1, 2000. This promissory note was issued in lieu of issuing to Titus
additional shares of our common stock pursuant to the June 30, 1999 adjustment.
Page 21
As a result of the August 1999 adjustment, and following stockholder
approval of the transaction, the purchase price was adjusted to $2.20, which
resulted in us issuing Titus an additional 883,684 shares of our common stock
for no additional consideration. Therefore, the aggregate number of shares of
common stock that we issued under Titus 1 was 4,545,455. In August 2000, we
issued Titus 883,684 shares of our common stock and Titus cancelled the June
1999 promissory note.
In May 1999 we signed a letter of intent with Titus pursuant to which Titus
loaned us $5 million. Pursuant thereto, on July 20, 1999, we entered into a
stock purchase agreement with Titus ("Titus 2") providing for the sale of 6.25
million shares of our common stock to Titus for $25 million, less the $5 million
previously loaned to us. Upon the closing of Titus 2, we entered into a
Stockholder Agreement with Titus and Brian Fargo (the "Stockholder Agreement")
pursuant to which: (a) Titus and Fargo each had the right to designate two
directors and together had the right to designate the remaining three directors
to our Board of Directors; (b) Titus and Brian Fargo each granted to the other a
right of first refusal with respect to either party's sale of our common stock;
(c) we granted to Titus and Fargo preemption rights with respect to the future
issuance of our equity securities; and (d) we agreed to not amend our
Certificate of Incorporation or Bylaws without the prior approval of Titus and
Fargo. The Stockholder Agreement has since terminated. Upon the Closing, we also
entered into the Film Production Joint Venture Agreement with Titus and Fargo
(the "Fargo JV Agreement") pursuant to which we, along with Fargo agreed: (a) to
each contribute intellectual properties at our own discretion to the joint
venture contemplated by the Fargo JV Agreement (the "Joint Venture"); (b) to
each contribute $1 million to the Joint Venture; and (c) that proceeds from the
Joint Venture, if any, would be allocated to each party in accordance with its
capital contributions, and then to the party contributing the intellectual
property that generated the proceeds. In addition, at the Titus 2 closing we
entered into:
o three-year employment agreements with Fargo and Herve Caen, pursuant
to which we employed Fargo as our Chief Executive Officer, and Herve
Caen as our President; and
o an exchange agreement with Titus and Fargo, pursuant to which Fargo
exchanged 2 million shares of our common stock for 96,666 shares of
Titus common stock.
In April 2000, we entered into a Stock Purchase Agreement with Titus
("Titus 3") providing for the issuance to Titus of 719,424 shares of our Series
A Preferred Stock (the "Preferred Stock") and warrants to purchase up to 500,000
shares of our common stock, in exchange for $20 million and Titus's agreement
to:
o provide a $20 million guaranty (the "Titus Guaranty") of our line of
credit from Greyrock Capital;
o extend to us a $5 million supplemental line of credit (the "Line of
Credit"); and
o provide us with its financial reports as required by Greyrock Capital
as a condition to the release of $2.5 million in cash collateral held
by Greyrock Capital.
We were obligated to repay to Titus any amounts that Titus may have paid
under the Titus Guaranty, and such repayment was secured by a second-priority
security interest in our assets. In addition, as a condition of the Titus
Guaranty, we granted Titus a right of first refusal on any sale of our assets
for $100,000 or more. During December 2000 through March 2001, we drew
Page 22
approximately $3 million on the Line of Credit. The Line of Credit was repaid in
full and terminated, and the Titus Guaranty was released, in April 2001.
The Series A Preferred Stock had the following material rights, preferences
and privileges, as described in our Certificate of Incorporation:
o DIVIDEND RIGHTS. The Series A Preferred Stock had a cumulative
dividend of 6% per annum, payable when and if declared by our Board of
Directors. The dividend was payable in cash or in shares of common
stock at the conversion rate.
o LIQUIDATION PREFERENCE. In the event of a liquidation, dissolution or
winding up of the Company, the holders of the Series A Preferred Stock
were entitled to be paid, out of the assets of the Company available
for distribution to holders of our capital stock, an amount equal the
initial purchase price per share of Series A Preferred Stock, $27.80,
plus any accrued but unpaid dividends. A consolidation, reorganization
or merger of the Company or a sale of all or substantially all of the
Company's assets was deemed to be a liquidation.
o CONVERSION. The Series A Preferred Stock could be converted into our
common stock at the election of the holder at any time following May
31, 2001. The number of shares of common stock to be issued upon
conversion was determined by multiplying the number of shares of
Series A Preferred Stock to be converted by the conversion ratio
applicable at the time. The conversion ratio was defined as a
fraction, the numerator of which was the initial purchase price per
share of Series A Preferred Stock, $27.80, and the denominator of
which was adjustable. The initial denominator was the lower of $2.78
or 85% of the average market price of the Company's common stock for
the 20 trading days preceding the date of conversion. The ratio was
subject to adjusted to account for stock splits or similar other
changes in our capital structure.
o REDEMPTION. We could have redeemed any unconverted shares of Series A
Preferred Stock at the original purchase price, plus accrued but
unpaid dividends, at any time prior to its conversion.
o VOTING. The Series A Preferred Stock was entitled to voting power
equivalent to the voting power of the shares of common stock into
which the Series A Preferred Stock can be converted, subject to a
maximum of 7,619,047 aggregate votes for all Series A Preferred Stock
shares.
o PROTECTIVE PROVISIONS. So long as at least 100,000 shares of Series A
Preferred Stock were outstanding, the Company could not, without the
approval of the holders of at least a majority of the Series A
Preferred Stock, take certain actions, including (i) selling or
encumbering all or substantially all of the Company's assets or
merging the Company with another party in which more than 50% of the
voting power of the Company is disposed of, (ii) authorizing or paying
any cash dividends with respect to our common stock, (iii) redeeming
any shares of our common stock or (iv) dissolving, liquidating or
winding up the Company.
Page 23
As part of Titus 3 we issued three warrants to Titus for the purchase of
our common stock in the amounts of 350,000 shares, 100,000 shares, and 50,000
shares. All three warrants are exercisable at $3.79 per share, and are for a
term of 10 years. The 350,000 share warrant and the 50,000 share warrant are
fully exercisable. The 100,000 share warrant currently is exercisable into
60,298 shares pursuant to a pre-determined calculation which provides that this
warrant is exercisable in proportion to the amount drawn on the Line of Credit
by us.
We agreed to register all of our common stock issued pursuant to Titus 1
and Titus 2, and all of the common stock issuable upon conversion of the
Preferred Stock and the warrants issued pursuant to Titus 3.
In June 2000, we entered into a technology and content license agreement
with Titus pursuant to which Titus licensed from us the content for the game
"Messiah," the trademarks "Mummy" and "Kingpin," and the game engine for
Messiah. Titus paid us an advance payment of royalties of $3 million pursuant to
the license agreement.
In September 2001, we entered into a Support Agreement with Titus. As part
of the Support Agreement, three of our then-current directors resigned, and
three new directors nominated by Titus were elected to fill the vacancies. We
also agreed with Titus to a slate of nominees for our Board of Directors, to be
elected at our September 18, 2001 stockholders' meeting. Each of those nominees
was elected. In addition to agreeing to the change in composition of the Board
of Directors, we also agreed to retain Europlay 1, LLC as our exclusive advisor
to effect a restructuring, with compensation to be determined at a level at
least equal to the compensation paid to industry leading advisory firms for
similar services. In December 2001, we concluded our negotiations with Europlay
regarding the engagement of Europlay as our advisor. Pursuant to our agreement,
we retained Europlay for a period of 12 months commencing on November 14, 2001.
As compensation for Europlay's services, with respect to any completed asset or
stock sale or financing transaction by us, Europlay shall be paid an amount
equal to (a) five and a half percent (5.5%) of the first $50,000,000 of the fair
market value of all consideration actually received by the Company plus the
total amount of indebtedness assumed by, forgiven, repaid, refinanced or
otherwise transferred to the purchaser, plus (b) seven and one half percent
(7.5%) of all such consideration over $50,000,000.
As part of the Support Agreement, Titus procured the agreement from its
wholly-owned subsidiary, Virgin Interactive Entertainment Ltd., our exclusive
distributor in Europe, to waive its rights with respect to distribution of our
Neverwinter Nights title in Europe, in exchange for our obtaining an advance
royalty payment of at least $2 million from a third party distributor. We
subsequently sold our rights to Neverwinter Nights to a third party. Titus also
agreed to cooperate with us to raise additional financing, and released any
claims against members of our then-current Board of Directors, with the
exception of the Titus nominees. We and Titus agreed that, except with respect
to existing agreements and the engagement of Europlay as the Company's financial
advisor, any material agreement between us and Titus or its affiliates that
occurs prior to the closing by Interplay of one or more financings totaling at
least $5 million, will require the approval of a committee of disinterested
directors.
Titus also agreed to use its commercially reasonable efforts to cause us to
maintain in effect for five years a directors' and officers' liability policy
and a "tail" policy, provided the annual cost to us for such policies is no more
than 300% of the annual cost of policies then in effect. We also agreed to
appoint Nathan Peck as its interim Chief Administrative Officer. Pursuant to the
Support
Page 24
Agreement, we amended our bylaws to provide that the number of directors may be
fixed by a majority of directors, instead of the previously-required unanimous
vote.
On September 13, 2001, we orally agreed to sell to Titus distribution
rights to our products in the territories of Australia, New Zealand and Asia.
Because of Titus' relationship with us, the sale of the properties was
conditional upon approval of the transaction by a committee of our Board of
Directors comprised of disinterested directors. The transaction was also
conditional upon the completion by Titus of its due diligence on the properties.
Titus advanced $1.0 million to the Company to be held as a good faith deposit
against the purchase price pending approval by the Board committee and
completion by Titus of its due diligence. If the agreement was not consummated,
Titus would be entitled to a breakup fee of 0.25 percent per week that we held
the $1.0 million deposit. The Board committee did not approve the transaction,
and Titus elected not to purchase the properties following completion of its due
diligence. As a consequence, we terminated the agreement and on September 26,
2001 the $1.0 million deposit was returned to Titus and Titus waived the breakup
fee.
On March 18, 2002, we entered into a distribution agreement with Titus
pursuant to which we granted to Titus the exclusive right to distribute one of
our products for the Sony Playstation console in North America, South America
and Central America in exchange for a minimum guarantee of $100,000 for the
first 71,942 units of the product sold, plus $.69 per unit on any product sold
above the 71,942 units.
Titus has made loans to us from time to time to fund our short-term working
capital requirements. On April 15, 2002, Titus loaned to us 350,000 Euros,
payable on or before May 1, 2003, which loan bears interest at a rate of 10% per
annum. On April 15, 2002, Titus loaned to us $115,000, payable on or before May
15, 2002, which loan bears interest at a rate of 8.5% per annum. On April 29,
2002, Titus loaned to us $363,000, payable on or before May 29, 2002, which loan
bears interest at the prime rate (as published in the Wall Street Journal) plus
2%, compounded monthly. We incurred additional fees in connection with this
latter loan totaling $36,300.
On April 26, 2002, we entered into an agreement with Titus, pursuant to
which, among other things, we sold to Titus all right, title and interest in the
games "EarthWorm Jim", "Messiah", "Wild 9", "R/C Stunt Copter", "Sacrifice",
"MDK", "MDK II", and "Kingpin", and Titus licensed from us the right to develop,
publish, manufacture and distribute the games "Hunter I", "Hunter II", "IceWind
Dale I", "IceWind Dale II", and "BG: Dark Alliance II" solely on Nintendo
Advance GameBoy game system for the life of the games. As consideration for
these rights, Titus issued to us a promissory note in the principal amount of
$3.5 million, which note bears interest at 8% per annum. The promissory note is
due on August 31, 2002, and may be paid, at Titus' option, in cash or in shares
of Titus common stock with a per share value equal to 90% of the average trading
price of Titus' common stock over the 5 days immediately preceding the payment
date. Pursuant to our April 26, 2002 agreement with Titus, on or before July 25,
2002, we have the right to solicit offers from and negotiate with third parties
to sell the rights and licenses granted under the April 26, 2002 agreement. If
we enter into a binding agreement with a third party to sell these rights and
licenses for an amount in excess $3.5 million, we will rescind the April 26,
2002 agreement with Titus and recover all rights granted and release Titus from
all obligations thereunder.
TRANSACTIONS WITH TITUS AND VIRGIN
In February 1999, we acquired a 43.9% interest in VIE Acquisition Group,
LLC ("VIE"), the parent entity of Virgin Interactive Entertainment Limited
("Virgin"). Management of VIE was
Page 25
governed by an operating agreement, to which we became a party. In connection
with the acquisition, we entered into an international distribution agreement
with Virgin (the "Distribution Agreement"). Pursuant the Distribution Agreement,
Virgin hired our European sales and marketing personnel and is distributing
substantially all of our titles in Europe, the Commonwealth of Independent
States, Africa and the Middle East. Pursuant to the Distribution Agreement, we
were required to pay to Virgin:
o a commission of 15% of the net proceeds received by Virgin for the
distribution of our products, with a fixed minimum of 4.5 million
pounds, and
o an overhead fee of $1.5 million for the period ending June 30, 2002.
In connection with the acquisition of equity in VIE, we entered into a
product publishing agreement with Virgin pursuant to which we published
substantially all of Virgin's titles in North and South America and Japan (the
"Publishing Agreement"). We also entered into a termination agreement with
Virgin and VIE which provided terms for our withdrawal as a member of VIE and
termination of the Distribution Agreement (the "Termination Agreement").
In late 1999, Titus acquired the holder of a 50.1% equity interest in VIE.
In early 2000, Titus acquired an additional 6% of VIE.
In May 2000, we amended the Distribution Agreement with Virgin to, among
other things, eliminate the overhead fees and minimum commissions payable by us.
In April 2001, we settled certain disputes with Virgin relating to minimum
commissions payable by and to us and net past due balances owed by Virgin to us,
and amended the Distribution Agreement, the Termination Agreement and the
Publishing Agreement. As a result of the settlement, VIE redeemed our interest
in VIE and Virgin paid us $3.1 million in net past due balances owed under the
Distribution Agreement. In addition, we agreed to pay Virgin a one-time
marketing fee of $333,000 for the period ended June 30, 2001, and monthly
overhead fees of $111,000 per month for a nine month period beginning April 2001
and $83,000 per month for a six month period beginning January 2002, with no
further commitment for overhead fees for the remainder of the term of the
Distribution Agreement. The Publishing Agreement was amended to cover only the
publishing rights for a product currently known as "Lotus."
TRANSACTIONS WITH FARGO AND UNIVERSAL
We entered into a Stock Purchase Agreement with Brian Fargo and Universal
Studios, Inc., dated January 25, 1994, for the purchase of common stock (the
"Universal Purchase Agreement"). On March 30, 1994, pursuant to the Universal
Purchase Agreement, Universal purchased 1,824,897 shares of common stock from us
for a purchase price of $15 million and 1,216,598 shares of common stock from
Fargo for a purchase price of $10.0 million.
Pursuant to the Universal Purchase Agreement, we entered into an Option
Agreement with Fargo and Universal, dated March 30, 1994 (the "Universal Option
Agreement"), pursuant to which Mr. Fargo granted Universal an option to purchase
additional shares of common stock held by Fargo. Pursuant to the Universal
Option Agreement, Universal purchased 1,216,598 additional shares of common
stock from Fargo at a price of $9.10 per share on April 25, 1995 and 1,150,123
additional shares of common stock at a price of $14.62 per share on April 26,
1996, such that Universal became
Page 26
a 35% owner of us as of April 25, 1995 and a 45% owner of us as of April 26,
1996. In order to acquire sufficient shares of common stock for sale to
Universal on each of the three sale dates, Fargo acquired such number of shares
as was required for sale to Universal from our existing shareholders in
simultaneous transactions.
Pursuant to the Universal Purchase Agreement, we entered into a
Shareholders' Agreement with Mr. Fargo and Universal dated March 30, 1994, as
amended in October 1996 and March 1998, which restricts transfer of shares,
rights of first refusal, voting provisions, registration rights and restrictions
on corporate actions. Only the rights of first refusal between Universal and
Fargo and the registration rights of Universal and Fargo survived the closing of
the initial public offering of our common stock. For his services in connection
with such transaction, Fargo was awarded a bonus of $1.0 million in March 1994.
Fargo agreed to defer the payment of such bonus to a future date.
TRANSACTIONS WITH UNIVERSAL
We have three merchandising license agreements with MCA/Universal
Merchandising Inc., a subsidiary of Universal. Pursuant to an agreement dated
May 23, 1994, we had the exclusive right to use the theme and characters of the
Waterworld motion picture in software products for specified platforms. This
right expired July 31, 1998. Pursuant to an agreement dated May 23, 1994, we
have the non-exclusive right to use the theme and characters of the Casper
motion picture in software products for specified platforms for a period of
three years following the release of such motion picture. Pursuant to an
agreement dated April 16, 1996, we have the exclusive right to the theme and
characters of the Flipper motion picture for an interactive story book product
on specified platforms until June 1, 2001. Each of the agreements provide for us
to pay specified advances against royalties and for specified royalty
guarantees. To date, we have paid a total of $0.6 million, $0.6 million and
$30,000, respectively, in advances and royalty payments under such agreements.
Pursuant to a letter agreement dated September 27, 1996 with Universal
Interactive Studios, or UIS, a subsidiary of Universal, we have the exclusive
distribution rights in North America for PlayStation versions of Disruptor, plus
the exclusive rights to manufacture, publish and distribute Disruptor on any
video game platform outside of North America. On August 16, 1995, we entered
into an exclusive distribution agreement with UIS pursuant to which UIS agreed
to distribute our interactive software products in Europe through UIS's
affiliate, MCA Home Video, Inc. The distribution agreement was subsequently
terminated. In June 1998, we paid UIS the remaining $1.4 million owed pursuant
to this letter agreement.
In August 2001 we entered into a distribution agreement with Vivendi
Universal Interactive Publishing North America, or "Vivendi", providing for
Vivendi to become our distributor in North America for substantially all our
products, with the exception of products with pre-existing distribution
agreements, through December 31, 2003. OEM rights were not among the rights
granted to Vivendi under the Distribution Agreement. We received advance
payments of $13.5 million from Vivendi under the Distribution Agreement.
Other than the transactions described above, we had no material
relationship with any selling stockholder during the three years preceding the
date of this prospectus.
Page 27
PLAN OF DISTRIBUTION
The shares of our Common Stock offered pursuant to this prospectus may be
offered and sold from time to time by the selling stockholders listed in the
preceding section, or their donees, transferees, pledgees or other successors in
interest that receive such shares as a gift or other non-sale related transfer.
These selling stockholders will act independently of us in making decisions with
respect to the timing, manner and size of each sale. All or a portion of the
Common Stock offered by this prospectus may be offered for sale from time to
time on the Nasdaq SmallCap Market or on one or more exchanges, or otherwise at
prices and terms then obtainable, or in negotiated transactions. The
distribution of these securities may be effected in one or more transactions
that may take place on the over-the-counter market, including, among others,
ordinary brokerage transactions, privately negotiated transactions or through
sales to one or more dealers for resale of such securities as principals, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Selling Stockholders may
also offer to sell and sell the Common Stock offered pursuant to this prospectus
in options transactions. Usual and customary or specifically negotiated
brokerage fees or commissions may be paid by the selling stockholders.
The selling stockholders may also engage in short sales against the box,
puts and calls and other transactions in our securities or derivatives of our
securities and may sell or deliver shares in connection with these trades. The
selling stockholders may pledge their shares to their brokers under the margin
provisions of customer agreements. If a selling stockholder defaults on a margin
loan, the broker may, from time to time, offer and sell the pledged shares. The
selling stockholders have advised us that they have not entered into any
agreements, understandings or arrangements with any underwriters or broker-
dealers regarding the sale of their shares other than ordinary course brokerage
arrangements, nor is there an underwriter or coordinating broker acting in
connection with the proposed sale of shares by the selling stockholders.
We will not receive any part of the proceeds from the sale of Common Stock.
The selling stockholders and intermediaries through whom such securities are
sold may be deemed "underwriters" within the meaning of the Securities Act, in
which event commissions received by such intermediary may be deemed to be
underwriting commissions under the Securities Act. We will pay all expenses of
the registration of securities covered by this prospectus. The selling
stockholders will pay any applicable underwriters' commissions and expenses,
brokerage fees or transfer taxes.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed on
by Akin, Gump, Strauss, Hauer & Feld, L.L.P., Los Angeles, California.
EXPERTS
The consolidated financial statements and schedule of Interplay
Entertainment Corp. at December 31, 2001, and for the year then ended appearing
in Interplay Entertainment Corp.'s Annual Report (Form 10-K) for the year ended
December 31, 2001, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon (which contains an explanatory paragraph
describing conditions that raise substantial doubt about the Company's ability
to continue as a going concern as described in Note 1 to the consolidated
financial statements) included therein and incorporated herein by reference, and
is included in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
Page 28
The consolidated financial statements incorporated by reference in this
prospectus and elsewhere in the registration statement of which this prospectus
is a part to the extent and for the periods indicated in their reports have been
audited by Arthur Andersen LLP, independent public accountants, and are
incorporated herein in reliance upon the authority of that firm as experts in
giving such reports. We have not been able to obtain, after reasonable efforts,
the written consent of Arthur Andersen to the inclusion of their report in this
prospectus, and we have dispensed with the requirement to file their consent in
reliance on Rule 437a promulgated under the Securities Act. Because Arthur
Andersen has not consented to the inclusion of its report in this prospectus,
your ability to assert claims against Arthur Andersen may be limited. In
particular, because of this lack of consent, you will not be able to sue Arthur
Andersen under Section 11(a)(4) of the Securities Act for any untrue statements
of a material fact contained in the financial statements audited by Arthur
Andersen or any omissions to state a material fact required to be stated in
those financial statements and therefore your right of recovery under that
section may be limited.
Page 29
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following sets forth the costs and expenses, all of which shall be
borne by the Registrant, in connection with the offering of the shares of Common
Stock pursuant to this Registration Statement:
Securities and Exchange Commission Fee........... $11,371
Accounting Fees and Expenses*.................... $30,000
Legal Fees and Expenses*......................... $25,000
Printing Costs*.................................. $ 1,000
Miscellaneous Expenses*.......................... $ 1,000
-------
Total.................................... $68,371
=======
---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) As permitted by the Delaware law, the Registrant's amended and restated
certificate of incorporation eliminates the liability of directors to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, except to the extent otherwise required by Delaware law. The
Registrant also carries directors and officers liability insurance.
(b) The Registrant's amended and restated certificate of incorporation
provides that the Registrant will indemnify each person who was or is made a
party to any proceeding by reason of the fact that such person is or was its
director or officer against all expense, liability and loss reasonably incurred
or suffered by such person in connection therewith to the maximum extent
authorized by Delaware law. The Registrant's bylaws provide for a similar
indemnity to its directors and officers to the fullest extent authorized by
Delaware law.
(c) The Registrant has entered into indemnification agreements with each of
its directors and officers providing for the indemnification of its directors
and officers against any and all expenses, judgments, fines, penalties and
amounts paid in settlement, to the fullest extent permitted by law.
ITEM 16. EXHIBITS.
5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.*
10.1 Stock Purchase Agreement dated March 18, 1999 by and between the
Company and Titus Interactive SA (incorporated herein by reference to
Exhibit 10.24 of the Company's Annual Report on Form 10-K for the year
ended December 31, 1998).
10.2 Stock Purchase Agreement dated July 20, 1999 by and among the Company,
Titus Interactive SA and Brian Fargo (incorporated herein by reference
to Exhibit 10.1 of the Company's Quarterly Report on Form 10-Q for the
three month period ended June 30, 1999).
10.3 Shareholders' Agreement dated March 30,1994 by and among the Company,
MCA Inc., and Brian Fargo (incorporated by reference to Exhibit 4.2 of
the Company's S-1 filed March 23, 1999).
10.4 Warrant to Purchase Common Stock of Interplay Entertainment Corp.
dated April 25, 2001 issued to Liolios Group, Inc. *
10.5 Financial Public Relations Agreement dated August 7, 2000 by and among
the Company and Liolios Group, Inc. *
10.6 Stock Purchase Agreement between the Company and Titus Interactive
S.A., dated April 14, 2000 (incorporated herein by reference to
Registrant's Annual Report on Form 10-K for the year ended December
31, 1999).
23.1 Consent of Arthur Andersen LLP, independent public accountants
(omitted pursuant to Rule 437a under the Securities Act).
23.2 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
Exhibit 5.1).*
23.3 Consent of Ernst & Young, LLP, independent auditors.
24.1 Power of Attorney (included on signature page).*
- ---------------------
* Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement 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 of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934, (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by 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 counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such
Page ii
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) (1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Page iii
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it has met all of the
requirements for filing on Form S-3 and has caused this Amendment No. 5 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Irvine, State of California, on the 28th day of
June, 2002.
INTERPLAY ENTERTAINMENT CORP.
By: /S/ HERVE CAEN
----------------------------------
Herve Caen, Chief Executive Officer
and President
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 5 to Registration Statement has been signed by the following
persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
/S/ HERVE CAEN
- --------------------------- Chief Executive Officer, President June 28, 2002
Herve Caen and Director
(Principal Executive Officer)
*
- --------------------------- Chief Financial Officer June 28, 2002
Jeffrey Gonzalez (Principal Financial Officer and
Principal Accounting Officer)
*
- --------------------------- Director June 28, 2002
Eric Caen
*
- --------------------------- Director June 28, 2002
Nathan Peck
*
- --------------------------- Director June 28, 2002
Michel Henri Vulpillat
*
- --------------------------- Director June 28, 2002
Michel Welter
- --------------------------- Director June 28, 2002
Parker Jones
*
- --------------------------- Director June 28, 2002
Maren Stenseth
* /S/ HERVE CAEN
--------------------------
Herve Caen
As Attorney In Fact
Page iv
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.*
10.1 Stock Purchase Agreement dated March 18, 1999 by and between the
Company and Titus Interactive SA (incorporated herein by reference
to Exhibit 10.24 of the Company's Annual Report on Form 10-K for
the year ended December 31, 1998).
10.2 Stock Purchase Agreement dated July 20, 1999 by and among the
Company, Titus Interactive SA and Brian Fargo (incorporated herein
by reference to Exhibit 10.1 of the Company's Quarterly Report on
Form 10-Q for the three month period ended June 30, 1999).
10.3 Shareholders' Agreement dated March 30,1994 by and among the
Company, MCA Inc., and Brian Fargo (incorporated by reference to
Exhibit 4.2 of the Company's S-1 filed March 23, 1999).
10.4 Warrant to Purchase Common Stock of Interplay Entertainment
Corp. dated April 25, 2001 issued to Liolios Group, Inc. *
10.5 Financial Public Relations Agreement dated August 7, 2000 by and
among the Company and Liolios Group, Inc. *
10.6 Stock Purchase Agreement between the Company and Titus
Interactive S.A., dated April 14, 2000 (incorporated herein by
reference to Registrant's Annual Report on Form 10-K for the
year ended December 31, 1999).
23.1 Consent of Arthur Andersen LLP, independent public accountants.**
23.2 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included
in Exhibit 5.1).*
23.3 Consent of Ernst & Young, LLP, independent auditors.
24.1 Power of Attorney (included on signature page).*
- --------------------
* Previously filed.
** Omitted pursuant to Rule 437a under the Securities Act.
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