Exhibit 10.2
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SHARES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") NOR QUALIFIED UNDER THE CALIFORNIA CORPORATE
SECURITIES LAW OF 1968, AS AMENDED, (THE "CALIFORNIA SECURITIES LAW"). THIS
WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR SALE IN
CONNECTION WITH, ANY DISTRIBUTION THEREOF WITHIN THE MEANING OF THE SECURITIES
ACT AND THE SECURITIES LAW. THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE
THEREOF MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND COMPLIANCE WITH THE
CALIFORNIA SECURITIES LAW OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
TO THE EFFECT THAT SUCH REGISTRATION AND COMPLIANCE ARE NOT REQUIRED.
Warrant to Purchase
500,000 Shares of
Common Stock
As Herein Described
WARRANT TO PURCHASE COMMON STOCK OF
INTERPLAY ENTERTAINMENT CORP.
This is to certify that, for value received, Brian Fargo, or a proper
assignee (in case, the "Holder"), is entitled to purchase, subject to the
provisions of this Warrant, from Interplay Entertainment Corp., a Delaware
corporation (the "Company"), having its principal place of business at 16815 Von
Karman Avenue, Irvine, California 92606, at any time during the period from the
date hereof to 5:00 p.m., California time, on the third anniversary of the date
hereof (the "Expiration Date") at which time this Warrant shall expire and
become void, five hundred thousand (500,000) shares ("Warrant Shares") of the
Company's Common Stock (the "Common Stock"). This Warrant shall be exercisable
at One and 75/100 Dollars ($1.75) per share (the "Exercise Price"). The number
of shares of Common Stock to be received upon exercise of this Warrant and the
Exercise Price shall be adjusted from time to time as set forth below. This
Warrant also is subject to the following terms and conditions:
1. Exercise and Payment; Exchange.
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1.1 This Warrant may be exercised in whole or in part at any
time from and after the date hereof and before the Expiration Date, but if such
date is a day on which federal or state chartered banking institutions located
in the State of California are authorized to close, then on the next succeeding
day which shall not be such a day. Exercise shall be by presentation and
surrender to the Company at its principal office, or at the office of any
transfer agent designated by the Company, of (i) this Warrant, (ii) the attached
exercise form properly executed, and (iii) either (A) a certified or official
bank check for the Exercise Price for the number of Warrant Shares specified in
the exercise form; or (B) other securities of the Company owned by the Holder
and having a fair market value determined as set forth in Section 3 hereof equal
to the Exercise Price for the number
of Warrant Shares specified in the exercise form or (C) any combination of the
consideration specified in the foregoing clauses (A) and (B). If this Warrant is
exercised in part only, the Company or its transfer agent shall, upon surrender
of the Warrant, execute and deliver a new Warrant evidencing the rights of the
Holder to purchase the remaining number of Warrant Shares purchasable hereunder.
Upon receipt by the Company of this Warrant in proper form for exercise,
accompanied by payment as aforesaid, the Holder shall be deemed to be the holder
of record of the Common Stock issuable upon such exercise, notwithstanding that
the stock transfer books of the Company shall then be closed or that
certificates representing such Warrant Shares shall not then be actually
delivered by the Holder.
1.2 Exchange of Warrant for Common Stock. In addition to and without
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limiting the rights of the Holder under the terms of this Warrant, the Holder
shall have the right, upon its written request delivered or transmitted to the
Company together with this Warrant, to exchange this Warrant, in whole or in
part at any time or from time to time from and after the date hereof and on or
prior to the Expiration Date, for the number of shares of Common Stock having an
aggregate fair market value (determined as set forth in Section 3 hereof) on the
date of such exchange equal to the difference between (i) the aggregate fair
market value on the date of such exchange (determined as set forth in Section 3
hereof) of a number of Warrant Shares designated by the Holder and (ii) the
aggregate Exercise Price the Holder would have paid to the Company to purchase
such designated number of Warrant Shares, and, if a balance of purchasable
Warrant Shares remains after such exchange, the Company shall execute and
deliver to the Holder a new Warrant evidencing the right of the Holder to
purchase such balance of Warrant Shares. No payment of any cash or other
consideration shall be required. Such exchange shall be effective upon the date
of receipt by the Company of the original Warrant surrendered for cancellation
and a written request from the Holder that the exchange pursuant to this
Subsection be made, or at such later date as may be specified in such request.
Upon receipt by the Company of this Warrant in proper form for exchange, the
Holder shall be deemed to be the holder of record of the Common Stock issuable
upon such exchange, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such Warrant Shares shall
not then be actually delivered by the Holder.
1.3 Conditions to Exercise or Exchange. The restrictions in Section 7
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shall apply, to the extent applicable by their terms, to any exercise or
exchange of this Warrant permitted by this Section 1.
2. Reservation of Shares. The Company shall, at all times until the
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expiration of this Warrant, reserve for issuance and delivery upon exercise of
this Warrant the number of Warrant Shares which shall be required for issuance
and delivery upon exercise of this Warrant.
3. Fractional Interests. The Company shall not issue any fractional
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shares or script representing fractional shares upon the exercise or exchange of
this Warrant. With respect to any fraction of a share resulting from the
exercise or exchange hereof, the Company shall pay to the Holder an amount in
cash equal to such fraction multiplied by the current fair market value per
share of Common Stock, determined as follows:
3.1 If the Common Stock is listed on a national securities exchange
or admitted to unlisted trading privileges on such an exchange or is listed on
the National Association of Securities Dealers Automated Quotation System
("NASDAQ"), the current fair market value shall be the last reported sale price
of the Common Stock on such exchange or NASDAQ on the last business
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day prior to the date of exercise of this Warrant or if no such sale is made on
such day, the mean of the closing bid and asked prices for such day on such
exchange or NASDAQ;
3.2 If the Common Stock is not so listed or admitted to unlisted
trading privileges or quoted on NASDAQ, the current fair market value shall be
the mean of the last bid and asked prices reported on the last business day
prior to the date of the exercise of this Warrant (i) by NASDAQ, or (ii) if
reports are unavailable under clause (i) above, by the National Quotation Bureau
Incorporated; or
3.3 If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the current
fair market value shall be an amount, not less than book value, determined in
such reasonable manner as may be prescribed by the Company's Board of Directors
in good faith.
4. No Rights as Stockholders. This Warrant shall not entitle the Holder
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to any rights as a stockholder of the Company, either at law or in equity. The
rights of the Holder are limited to those expressed in this Warrant and are not
enforceable against the Company except to the extent set forth herein.
5. Adjustments in Number and Exercise Price of Warrant Shares.
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5.1 The number of shares of Common Stock for which this Warrant may
be exercised and the Exercise Price therefor shall be subject to adjustments as
follows:
(a) If the Company is recapitalized through the subdivision or
combination of its outstanding shares of Common Stock into a larger or smaller
number of shares, the number of shares of Common Stock for which this Warrant
may be exercised shall be increased or reduced, as of the record date for such
recapitalization in the same proportion as the increase or decrease in the
outstanding shares of Common Stock, and the Exercise Price shall be adjusted so
that the aggregate amount payable for the purchase of all of the Warrant Shares
issuable hereunder immediately after the record date for such recapitalization
shall equal the aggregate amount so payable immediately before such record date.
(b) If the Company declares a dividend on Common Stock payable
in Common Stock or securities convertible into Common Stock, the number of
shares of Common Stock for which this Warrant may be exercised shall be
increased as of the record date for determining which holders of Common Stock
shall be entitled to receive such dividend, in proportion to the increase in the
number of outstanding shares (and shares of Common Stock issuable upon
conversion of all such securities convertible into Common Stock) of Common Stock
as a result of such dividend, and the Exercise Price shall be adjusted so that
the aggregate amount payable for the purchase of all the Warrant Shares issuable
hereunder immediately after the record date for such dividend shall equal the
aggregate amount so payable immediately before such record date.
(c) If the Company distributes to holders of its Common Stock,
other than as part of its dissolution or liquidation or the winding up of its
affairs, any shares of its capital stock, any evidence of indebtedness or any of
its assets (other than cash, Common Stock or securities convertible into Common
Stock), the Company shall give written notice to the Holder of any such
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distribution at least thirty (30) days prior to the proposed record date in
order to permit the Holder to exercise this Warrant on or before the record
date. There shall be no adjustment in the number of shares of Common Stock for
which this Warrant may be exercised, or in the Exercise Price, by virtue of any
such distribution.
(d) If the Company offers rights or warrants to the holders of
Common Stock which entitle them to subscribe to or purchase additional Common
Stock or securities convertible into Common Stock, the Company shall give
written notice of any such proposed offering to the Holder at least thirty (30)
days prior to the proposed record date in order to permit the Holder to exercise
this Warrant on or before such record date. There shall be no adjustment in the
number of shares of Common Stock for which this Warrant may be exercised, or in
the Exercise Price, by virtue of any such distribution.
(e) If the event, as a result of which an adjustment is made
under paragraph (a) or (b) above, does not occur, then any adjustments in the
Exercise Price or number of shares issuable that were made in accordance with
such paragraph (a) or (b) shall be adjusted to the Exercise Price and number of
shares as were in effect immediately prior to the record date for such event.
5.2 In the event of any reorganization or reclassification of the
outstanding shares of Common Stock (other than a change in par value or from no
par value to par value, or from par value to no par value, or as a result of a
subdivision or combination) or in the event of any consolidation or merger of
the Company with another entity after which the Company is not the surviving
entity, or a reverse triangular merger in which the Company is the surviving
entity but the shares of the Company's capital stock outstanding immediately
prior to the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash, or otherwise (any such transaction, a
"Reorganization"), at any time prior to the expiration of this Warrant, upon
subsequent exercise of this Warrant the Holder shall have the right to receive
the same kind and number of shares of Common Stock and other securities, cash or
other property as would have been distributed to the Holder upon such
reorganization, reclassification, consolidation or merger had the Holder
exercised this Warrant immediately prior to such reorganization,
reclassification, consolidation or merger, appropriately adjusted for any
subsequent event described in this Section 5. The Holder shall pay upon such
exercise the Exercise Price that otherwise would have been payable pursuant to
the terms of this Warrant. If any such reorganization, reclassification,
consolidation or merger results in a cash distribution in excess of the then
applicable Exercise Price, the holder may, at the Holder's option exercise this
Warrant without making payment of the Exercise Price, and in such case the
Company shall, upon distribution to the Holder, consider the Exercise Price to
have been paid in full, and in making settlement to the Holder, shall deduct an
amount equal to the Exercise Price from the amount payable to the Holder. In the
event of any such reorganization, merger or consolidation, the corporation
formed by such consolidation or merger or the corporation which shall have
acquired the assets of the Company shall execute and deliver a supplement hereto
to the foregoing effect, which supplement shall also provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided in this Warrant.
5.3 If the Company shall, at any time before the expiration of this
Warrant, dissolve, liquidate or wind up its affairs, the Holder shall have the
right to receive upon exercise of this Warrant, in lieu of the shares of Common
Stock of the Company that the Holder otherwise would have been entitled to
receive, the same kind and amount of assets as would have been issued,
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distributed or paid to the Holder upon any such dissolution, liquidation or
winding up with respect to such Common Stock receivable upon exercise of this
Warrant on the date for determining those entitled to receive any such
distribution. If any such dissolution, liquidation or winding up results in any
cash distribution in excess of the Exercise Price provided by this Warrant, the
Holder may, at the Holder's option, exercise this Warrant without making payment
of the Exercise Price and, in such case, the Company shall, upon distribution to
the Holder, consider the Exercise Price to have been paid in full and, in making
settlement to the Holder, shall deduct an amount equal to the Exercise Price
from the amount payable to the Holder.
5.4 Whenever this Warrant shall be adjusted as required by the
provisions of this Section 5, the Company forthwith shall file in the custody of
its secretary or an assistant secretary, at its principal office, an officer's
certificate showing the adjusted number of Warrant Shares and Exercise Price and
setting forth in reasonable detail the circumstances requiring the adjustment.
Each such officer's certificate shall be made available at all reasonable times
during reasonable hours for inspection by the Holder.
6. Notices to Holder. So long as this Warrant shall be outstanding (a) if
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the Company shall pay any dividends or make any distribution upon the Common
Stock otherwise than in cash or (b) if the Company shall offer generally to the
holders of Common Stock the right to subscribe to or purchase any shares of any
class of Common Stock or securities convertible into Common Stock or any similar
rights or (c) if there shall be any capital reorganization of the Company in
which the Company is not the surviving entity, recapitalization of the capital
stock of the Company, any Reorganization, any sale, lease or other transfer of
all or substantially all of the property and assets of the Company, or voluntary
or involuntary dissolution, liquidation or winding up of the Company, then in
such event, the Company shall cause to be mailed to the Holder, at least thirty
(30) days prior to the relevant date described below (or such shorter period as
is reasonably possible if thirty days is not reasonably possible), a notice
containing a description of the proposed action and stating the date or expected
date on which a record of the Company's shareholders is to be taken for the
purpose of any such dividend, distribution of rights, or such reclassification,
reorganization, consolidation, merger, conveyance, lease or transfer,
dissolution, liquidation or winding up is to take place and the date or expected
date, if any is to be fixed, as of which the holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such event.
7. Transfer, Exercise, Exchange, Assignment or Loss of Warrant, Warrant
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Shares or Other Securities.
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7.1 This Warrant may be transferred, exercised, exchanged or assigned
("transferred"), in whole or in part, subject to the following restrictions.
This Warrant and the Warrant Shares or any other securities ("Other Securities")
received upon exercise of this Warrant shall be subject to restrictions on
transferability until registered under the Securities Act of 1933, as amended
(the "Securities Act"), unless an exemption from registration is available.
Until this Warrant and the Warrant Shares or Other Securities are so registered,
this Warrant and any certificate for Warrant Shares or Other Securities issued
or issuable upon exercise of this Warrant shall contain a legend on the face
thereof, in form and substance satisfactory to counsel for the Company, stating
that this Warrant, the Warrant Shares or Other Securities may not be sold,
transferred or otherwise disposed of unless, in the opinion of counsel
satisfactory to the Company, which may be counsel to the Company, that the
Warrant, the Warrant Shares or Other Securities may
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be transferred without such registration. This Warrant and the Warrant Shares or
Other Securities may also be subject to restrictions on transferability under
applicable state securities or blue sky laws.
7.2 Until this Warrant, the Warrant Shares or Other Securities are
registered under the Securities Act, the Company may require, as a condition of
transfer of this Warrant, the Warrant Shares, or Other Securities that the
transferee (who may be the Holder in the case of an exercise or exchange)
represent that the securities being transferred are being acquired for
investment purposes and for the transferee's own account and not with a view to
or for sale in connection with any distribution of the security. The Company may
also require that transferee provide written information adequate to establish
that the transferee is an "accredited investor" within the meaning of Regulation
D issued under the Securities Act, a purchaser meeting the requirements of
Section 25102(f) of the California Securities Law, or otherwise meets all
qualifications necessary to comply with exemptions to the Securities Act and
California Securities Law, all as determined by counsel to the Company.
7.3 Any transfer permitted hereunder shall be made by surrender of
this Warrant to the Company at its principal office or to the Transfer Agent at
its offices with a duly executed request to transfer the Warrant, which shall
provide adequate information to effect such transfer and shall be accompanied by
funds sufficient to pay any transfer taxes applicable. Upon satisfaction of all
transfer conditions, the Company or Transfer Agent shall, without charge,
execute and deliver a new Warrant in the name of the transferee named in such
transfer request, and this Warrant promptly shall be cancelled.
7.4 Upon receipt by the Company of evidence satisfactory to it of
loss, theft, destruction or mutilation of this Warrant and, in the case of loss,
theft or destruction, of reasonable satisfactory indemnification, or, in the
case of mutilation, upon surrender of this Warrant, the Company will execute and
deliver, or instruct the Transfer Agent to execute and deliver, a new Warrant of
like tenor and date, any such lost, stolen or destroyed Warrant thereupon shall
become void.
7.5 Each Holder of this Warrant, the Warrant Shares and any Other
Securities shall indemnify and hold harmless the Company, its directors and
officers, and each other person, if any, who controls the Company, against any
losses, claims, damages or liabilities, joint or several, to which the Company
or any such director, officer or any such person may become subject under the
Securities Act, California Securities Law or any statute or common law, insofar
as such losses, claims, damages or liabilities, or actions in respect thereof,
arise out of or are based upon the disposition by such Holder by such Holder of
the Warrant, the Warrant Shares or Other Securities in violation of this
Warrant.
8. No Dilution or Impairment. The Company will not, by amendment of its
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Certificate of Incorporation or otherwise, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times, in
good faith, take all such action as may be necessary or appropriate in order to
protect the rights of the Holder against dilution or other impairment.
9. Market Stand-Off. If requested by the Company and an underwriter of
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Common Stock (or other securities) of the Company, a Holder shall not sell or
otherwise transfer or dispose of any Warrant Shares or Other Securities held by
such Holder (other than those included in the
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registration, if any) during the one hundred eighty (180) day period following
the effective date of a registration statement of the Company filed under the
Securities Act (other than a registration statement relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated
in the future, or a registration relating solely to a Commission Rule 145
transaction on Form S-4 or similar forms that may be promulgated in the future.
The Company may impose stop-transfer instructions with respect to the Warrant
Shares or Other Securities subject to the foregoing restriction until the end of
said one hundred eighty (180) day period.
10. Notices. All notices and other communications required or permitted
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hereunder shall be in writing and shall be deemed effectively given upon
personal delivery or facsimile transmission to the party to be notified, or one
(1) day after deposit with a nationally recognized overnight delivery service,
all delivery charges paid, or three (3) days after deposit with the United
States mail, by registered or certified mail, postage prepaid, in any such case
addressed (a) if to Holder, at the address of Holder appearing on the records of
the Company, or at such other address as Holder shall have furnished to the
Company in writing in accordance with this Section 10, or (b) if to the Company,
at its principal office set forth above, or any other address which the Company
shall have furnished to Holder in writing in accordance with this Section 10.
11. Amendment. Any provision of this Warrant may be amended or the
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observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of the
Company and the Holder.
12. Governing Law. This Warrant shall be governed by and construed in
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accordance with the laws of the State of California.
IN WITNESS WHEREOF, the Company has executed this Warrant as of April 11,
2001.
Interplay Entertainment Corp.
By: _________________________________
Manuel Marrero
Chief Financial Officer
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Annex A
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[FORM OF EXERCISE]
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase __________ shares of Common
Stock and herewith tenders payment for such shares of Common Stock to the order
of Interplay Entertainment Corp. the amount of $__________ in accordance with
the terms hereof. The undersigned requests that a certificate for such shares of
Common Stock be registered in the name of _______________________________ whose
address is ___________________________________. If said number of shares of
Common Stock is less than all of the shares of Common Stock purchasable
hereunder, the undersigned requests that a new Warrant Certificate representing
the remaining balance of the shares of Common Stock be registered in the name of
__________________________ whose address is _____________________________ and
that such Warrant Certificate be delivered to ________________________, whose
address is _________________________________.
Dated:
Signature: ______________________________________
(Signature must conform in all respects to name
of holders as specified on the face of the
Warrant Certificate.)
_____________________________
(Insert Social Security or
Taxpayer Identification
Number of Holder.)