As Filed With the Securities and Exchange Commission on August 4, 1998
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
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FORM S-8
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 Identification No.)
incorporation or organization)
16815 Von Karman Avenue, Irvine, California 92606
(Address of Principal Executive Offices) (Zip Code)
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EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED 1997 STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AND NONQUALIFIED STOCK OPTION PLAN - 1994
INCENTIVE STOCK OPTION, NONQUALIFIED STOCK OPTION
AND RESTRICTED STOCK PURCHASE PLAN - 1991
LEHRBERG EMPLOYMENT AGREEMENT
(Full titles of the plans)
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Christopher J. Kilpatrick, President
Interplay Entertainment Corp.
16815 Von Karman Avenue
Irvine, California 92606
(Name and address of agent for service)
(949) 553-6655
(Telephone number, including area code, of agent for service)
Copy to:
Nick E. Yocca, Esq.
K.C. Schaaf, Esq.
Stradling Yocca Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
(949) 725-4000
Page 1 of 9 Pages
Exhibit Index on Page 8
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title Of Securities Amount To Be Offering Price Aggregate Offering Amount of
To Be Registered Registered/(1)/ Per Share Price Registration Fee
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Common Stock,
$0.001 par value 3,871,247 shares (2) $22,588,809 (2) $6,664
=======================================================================================================
(1) Includes additional shares of Common Stock that may become issuable
pursuant to the anti-dilution adjustment provisions of the Employee Stock
Purchase Plan (the "Purchase Plan"), the Amended and Restated 1997 Stock
Incentive Plan (the "1997 Plan"), the Incentive Stock Option and Nonqualified
Stock Option Plan-1994 (the "1994 Plan"), the Incentive Stock Option,
Nonqualified Stock Option and Restricted Stock Purchase Plan-1991 (the "1991
Plan"), the Employment Agreement, dated December 1, 1991, as amended (the
"1991 Employment Agreement"), and the Employment Agreement, dated March 28,
1994, by and between the Registrant and Richard S.F. Lehrberg, as amended
(the "1994 Employment Agreement," and collectively with the 1991 Employment
Agreement, the "Lehrberg Employment Agreement").
(2) In accordance with Rule 457(h), the aggregate offering price of
1,962,972 shares of Common Stock registered hereby which would be issued upon
exercise of options granted under the 1991 Plan, the 1994 Plan, the 1997 Plan
and the Lehrberg Employment Agreement is based upon the per share exercise
price of such options, the weighted average of which is approximately $4.75
per share. With respect to the remaining 1,708,275 shares of Common Stock
registered hereby which would be issued upon exercise of the remaining
options and rights to purchase which Registrant is authorized to issue under
its 1991 Plan, the 1994 Plan and the 1997 Plan, the aggregate offering price
is estimated solely for purposes of calculating the registration fee, in
accordance with Rule 457(h) on the basis of the price of securities of the
same class, as determined in accordance with Rule 457(c), using the average
of the high and low price reported by the Nasdaq National Market for the
Common Stock on July 29, 1998, which was $7.0625 per share. For the purposes
of the 200,000 shares of Common Stock to be issued under the Purchase Plan,
the aggregate offering price was estimated using a per share price of $6.00,
or 85% of $7.0625, which price per share is the estimated basis at which the
shares will be issued pursuant to the Purchase Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents are incorporated herein by reference:
(a) The Company's Registration Statement on Form S-1 (Registration No.
333-48473) as filed with the Securities and Exchange Commission (the
"Commission") on March 23, 1998, as amended;
(b) The description of the Registrant's Common Stock that is contained
in the Registrant's Registration Statement on Form 8-A filed under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating that description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all of such securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents, except as to any portion of any future annual
or quarterly report to stockholders or document that is not deemed filed under
such provisions. For the purposes of this registration statement, any statement
in a document incorporated by reference shall be deemed to be modified or
superseded to the extent that a statement contained in this registration
statement modifies or supersedes a statement in such document. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Item 6. Indemnification of Directors and Officers.
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The Company's Bylaws provide that the Company will indemnify its
directors and officers and may indemnify its employees and other agents to the
fullest extent permitted by the General Corporation Law of the State of Delaware
(the "DGCL"). The Company believes that indemnification under its Bylaws covers
at least negligence and gross negligence by indemnified parties, and permits the
Company to advance litigation expenses in the case of stockholder derivative
actions or other actions, against an undertaking by the indemnified party to
repay such advances if it is ultimately determined that the indemnified party is
not entitled to indemnification. The Company maintains liability insurance for
its officers and directors.
In addition, the Company's Certificate of Incorporation provides that,
pursuant to the DGCL, its directors shall not be liable for monetary damages for
breach of the directors' fiduciary duty to the Company and its stockholders.
This provision in the Certificate of Incorporation does not eliminate the
directors' fiduciary duty, and in appropriate circumstances equitable remedies
such as injunctive or other forms of non-monetary relief will remain available
under the DGCL. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Company for acts
or omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under the DGCL. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
The Company has entered into separate indemnification agreements with
its directors and officers. These agreements require the Company, among other
things, to indemnify them against liabilities that may arise by reason of their
status or service as directors or officers (other than liabilities arising from
actions not taken in good faith or in a manner the indemnitee believed to be
opposed to the best interests of the Company), and to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified. Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "1933 Act"), may be permitted to
directors, officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the Commission,
such indemnification is against public policy as expressed in the 1933 Act and
is therefore unenforceable.
Item 8. Exhibits.
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The following exhibits are filed as part of this Registration Statement:
Number Description
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4.1 Amended and Restated 1997 Stock Incentive Plan (the "1997 Plan")
(incorporated by reference to Exhibit 10.1 to the Company's
Registration Statement on Form S-1, Registration No. 333-48473).
4.2 Form of Stock Option Agreement pertaining to the 1997 Plan
(incorporated by reference to Exhibit 10.2 to the Company's
Registration Statement on Form S-1, Registration No. 333-48473).
4.3 Form of Restricted Stock Purchase Agreement pertaining to the
1997 Plan (incorporated by reference to Exhibit 10.3 to the
Company's Registration Statement on Form S-1, Registration No.
333-48473).
4.4 Incentive Stock Option and Nonqualified Stock Option Plan-1994
(the "1994 Plan") (incorporated by reference to Exhibit 10.4 to
the Company's Registration Statement on Form S-1, Registration
No. 333-48473).
4.5 Form of Nonqualified Stock Option Agreement pertaining to the
1994 Plan (incorporated by reference to Exhibit 10.5 to the
Company's Registration Statement on Form S-1, Registration No.
333-48473).
4.6 Incentive Stock Option, Nonqualified Stock Option and Restricted
Stock Purchase Plan-1991 (the "1991 Plan") as amended
(incorporated by reference to Exhibit 10.6 to the Company's
Registration Statement on Form S-1, Registration No. 333-48473).
4.7 Form of Incentive Stock Option Agreement pertaining to the 1991
Plan (incorporated by reference to Exhibit 10.7 to the Company's
Registration Statement on Form S-1, Registration No. 333-48473).
4.8 Form of Nonqualified Stock Option Agreement pertaining to the
1991 Plan (incorporated by reference to Exhibit 10.8 to the
Company's Registration Statement on Form S-1, Registration No.
333-48473).
4.9 Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.10 to the Company's Registration Statement on Form S-
1, Registration No. 333-48473).
4.10 Employment Agreement between the Company and Richard S.F.
Lehrberg, dated December 1, 1991, as amended.
4.11 Employment Agreement between the Company and Richard S.F.
Lehrberg, dated March 28, 1994, as amended (incorporated by
reference to Exhibit 10.28 to the Company's Registration
Statement on Form S-1, Registration No. 333-48473).
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, independent auditors.
24.1 Power of Attorney (included on signature page to the Registration
Statement at page S-1).
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not
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apply if the information required to be included in a post-effective amendment
by these paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered 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 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
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on the 4th day of
August, 1998.
INTERPLAY ENTERTAINMENT CORP.
By: /s/ BRIAN FARGO
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Brian Fargo
Chairman of the Board and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Interplay Entertainment
Corp., do hereby constitute and appoint Brian Fargo and Christopher J.
Kilpatrick, or either of them, our true and lawful attorneys and agents, to sign
for us or any of us in our names and in the capacities indicated below, any and
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto and other documents
required in connection therewith, and to do any and all acts and things in our
names and in the capacities indicated below, which said attorneys and agents, or
either of them, may deem necessary or advisable to enable said corporation to
comply with the Securities Act of 1933, as amended, and any rules, regulations,
and requirements of the Securities and Exchange Commission, in connection with
this Registration Statement; and we do hereby ratify and confirm all that the
said attorneys and agents, or either of them, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/s/ BRIAN FARGO
_______________________________
Brian Fargo Chairman of the Board of Directors July 31, 1998
and Chief Executive Officer
(Principal Executive Officer)
/s/ CHRISTOPHER J. KILPATRICK
_______________________________
Christopher J. Kilpatrick President and Director July 31, 1998
/s/ JAMES C. WILSON
_______________________________
James C. Wilson Chief Financial Officer July 31, 1998
(Principal Financial and
Accounting Officer)
/s/ RICHARD S.F. LEHRBERG
_______________________________
Richard S.F. Lehrberg Executive Vice President and July 30, 1998
Director
Signature Title Date
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/s/ MARK PINKERTON
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Mark Pinkerton Director July 30, 1998
/s/ CHARLES S. PAUL
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Charles S. Paul Director July 31, 1998
/s/ PAUL A. RIOUX
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Paul A. Rioux Director July 28, 1998
/s/ DAVID R. DUKES
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David R. Dukes Director July 31, 1998
EXHIBIT INDEX
Sequential
Number Description Page Number
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4.1 Amended and Restated 1997 Stock Incentive Plan (the
"1997 Plan") (incorporated by reference to Exhibit
10.1 to the Company's Registration Statement on Form
S-1, Registration No. 333-48473).
4.2 Form of Stock Option Agreement pertaining to the 1997
Plan (incorporated by reference to Exhibit 10.2 to the
Company's Registration Statement on Form S-1,
Registration No. 333-48473).
4.3 Form of Restricted Stock Purchase Agreement pertaining
to the 1997 Plan (incorporated by reference to Exhibit
10.3 to the Company's Registration Statement on Form S-1,
Registration No. 333-48473).
4.4 Incentive Stock Option and Nonqualified Stock Option
Plan-1994 (the "1994 Plan") (incorporated by reference
to Exhibit 10.4 to the Company's Registration Statement
on Form S-1, Registration No. 333-48473).
4.5 Form of Nonqualified Stock Option Agreement pertaining
to the 1994 Plan (incorporated by reference to Exhibit
10.5 to the Company's Registration Statement on Form S-1,
Registration No. 333-48473).
4.6 Incentive Stock Option, Nonqualified Stock Option and
Restricted Stock Purchase Plan-1991 (the "1991 Plan") as
amended (incorporated by reference to Exhibit 10.6 to
the Company's Registration Statement on Form S-1,
Registration No. 333-48473).
4.7 Form of Incentive Stock Option Agreement pertaining to
the 1991 Plan (incorporated by reference to Exhibit 10.7
to the Company's Registration Statement on Form S-1,
Registration No. 333-48473).
4.8 Form of Nonqualified Stock Option Agreement pertaining
to the 1991 Plan (incorporated by reference to Exhibit
10.8 to the Company's Registration Statement on Form S-1,
Registration No. 333-48473).
4.9 Employee Stock Purchase Plan (incorporated by reference
to Exhibit 10.10 to the Company's Registration Statement
on Form S-1, Registration No. 333-48473).
4.10 Employment Agreement between the Company and Richard S.F.
Lehrberg, dated December 1, 1991, as amended.
4.11 Employment Agreement between the Company and Richard S.F.
Lehrberg, dated March 28, 1994, as amended (incorporated
by reference to Exhibit 10.28 to the Company's Registration
Statement on Form S-1, Registration No. 333-48473).
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, independent auditors.
24.1 Power of Attorney (included on signature page to the
Registration Statement at page S-1).