EXHIBIT 4.1
THIS WARRANT AND THE SECURITIES ISSUABLE ON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED, OR ANY STATE SECURITIES
LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL (WHICH MAY BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS.
As of October 2, 2006 No. 01
INTERPLAY ENTERTAINMENT CORP.
(Organized under the laws of the State of Delaware)
WARRANT AGREEMENT FOR THE PURCHASE OF SHARES OF COMMON STOCK
WHEREAS, on October 2, 2006 the Board of Directors of Interplay
Entertainment Corp., a Delaware corporation (the "Company"), (as described in a
8-K filed by the Company on November 20, 2006 (the "8-K")) approved the
restructuring of certain compensatory arrangements for the Chief Executive
Officer and Interim Chief Financial Officer and the other members of the Board
of Directors of the Company and issued to such persons under an employee benefit
plan warrants to purchase Common Stock of the Company;
WHEREAS, the parties wish to evidence the terms and conditions of such
warrants issued to _______________________ (the "Warrantholder"), which are set
forth in this Warrant Agreement (the "Agreement");
NOW, THEREFORE, in consideration of the restructuring of compensatory
arrangements described in the 8-K, and in consideration of the mutual covenants
and agreements contained herein, the Company and Warrantholder agree as follows:
SECTION 1. GRANT OF THE RIGHT TO PURCHASE COMMON STOCK.
For value received, the Company granted as of October 2, 2006 to the
Warrantholder, and the Warrantholder is entitled, upon the terms and subject to
the conditions hereinafter set forth, to subscribe for and purchase, from the
Company, up to _______________ fully paid and non-assessable shares of the
Common Stock (as defined below) at a purchase price of $0.0279 per share (the
"Exercise Price"). The number and Exercise Price of such shares are subject to
adjustment as provided in Section 8. As used herein, the following terms shall
have the following meanings:
"Act" means the Securities Act of 1933, as amended.
"Charter" means the Company's Certificate of Incorporation or other
constitutional document, as may be amended from time to time.
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"Common Stock" means the Company's common stock, $0.001 par value per
share.
"Effective Date" means October 2, 2006 .
"Family Member" shall mean any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling, niece, nephew,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, including adoptive relationships, any person sharing the
employee's household (other than a tenant or employee), a trust in which these
persons have more than fifty percent of the beneficial interest, a foundation in
which these persons (or the Warrantholder) control the management of assets, and
any other entity in which these persons (or the Warrantholder) own more than
fifty percent, of the voting interests.
"Merger Event" means a reorganization, recapitalization, consolidation
or merger (or similar transaction or series of related transactions) involving
the Company in which the Company is not the surviving entity, or in which the
outstanding shares of the Company's capital stock are otherwise converted into
or exchanged for shares or units of capital of another entity.
"Purchase Price" means, with respect to any exercise of this Agreement,
an amount equal to the Exercise Price as of the relevant time multiplied by the
number of shares of Common Stock requested to be exercised under this Agreement
pursuant to such exercise.
"Warrant" means the right, upon the terms and subject to the conditions
hereinafter set forth, to subscribe for and purchase, from the Company, one
fully paid and non-assessable share of the Common Stock at the Exercise Price.
"Warrant Share" means each share of Common Stock that is issued upon
the exercise of a Warrant pursuant to Section 3 hereof.
SECTION 2. TERM OF EXERCISABILITY.
Each right to purchase Common Stock hereunder shall expire on the tenth
(10th) anniversary of the Effective Date.
SECTION 3. EXERCISE OF THE PURCHASE RIGHTS.
(a) EXERCISE. The purchase rights set forth in this Agreement are
exercisable by the Warrantholder, in whole or in part, at any time, or from time
to time, prior to the expiration of the term set forth in Section 2, by
tendering to the Company at its principal office, at the office of its stock
transfer agent or at any other warrant agent designated by the Company (the
"Warrant Agent") if any, a notice of exercise in the form attached hereto as
Exhibit I (the "Notice of Exercise"), duly completed and executed. Following
receipt of the Notice of Exercise and/or the Cashless Exercise Form in the form
attached hereto as Exhibit III, as the case may be, and subject to the prior
payment of the Purchase Price in accordance with the terms set forth below, the
Company shall issue to the Warrantholder a certificate for the number of shares
of Common Stock purchased, and shall execute the acknowledgment of exercise in
the form attached hereto as Exhibit II (the "Acknowledgment of Exercise")
indicating the number of shares which remain subject to future purchases, if
any, under this Agreement, and affirming that with respect to such unexercised
portion this Agreement remains in full force and effect.
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(b) If the fair market value of one share of the Company's Common
Stock is greater than the Exercise Price (at the date of calculation as set
forth below) and either (i) any portion of the Warrant Shares issuable upon
exercise of this Warrant are not covered by an effective registration statement
under the Securities Act, or (ii) the Warrant Shares are not permitted to be
transferred free of any volume limitations under Rule 144, then in lieu of
exercising this Warrant by payment of cash, the Warrantholder may elect to
receive shares equal to the value (as determined below) of this Warrant (or the
portion thereof being exercised) by surrender of this Warrant at the principal
office of the Company or the Warrant Agent together with an executed Cashless
Exercise Form in which event the Company shall issue to the Warrantholder a
number of shares of Common Stock computed using the following formula:
X = Y(A-B)
---------
A
Where X = the number of shares of Common Stock to be issued to
the Warrantholder
Y = the number of shares of Common Stock issuable under
the Warrant or, if only a portion of the Warrant is
being exercised, the portion of the Warrant being
exercised (at the date of such calculation)
A = the fair market value of one share of the Company's
Common Stock (at the date of such calculation)
B = Exercise Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, the fair market value of one
share of Common Stock shall be determined by taking the average of the closing
prices of the sales of any shares of Common Stock on all securities exchanges on
which the Common Stock is listed, or, if there have been no sales on any such
exchange on any day, the average of the highest bid and lowest asked prices on
all such exchanges at the end of such day, or, if on any day the Common Stock is
not so listed, the average of the representative bid and asked prices quoted in
the OTC Bulletin Board as of 4:00 p.m., New York time, or, if on any day any
Common Stock is not quoted on the OTC Bulletin Board, the average of the highest
bid and lowest asked prices on such day in the domestic over-the-counter market
as reported by the National Quotation Bureau Incorporated, or any similar
successor organization, in each such case averaged over a period of 21 days
consisting of the day as of which the fair market value is being determined and
the 20 consecutive business days prior to such day. If at any time the Common
Stock is not listed on any securities exchange or quoted in the OTC Bulletin
Board or the over-the-counter market, the fair market value of one share of
Common Stock shall be the amount determined in good faith by the Company's board
of directors (the "Board"). A cashless exercise shall be deemed effective on the
date the Cashless Exercise Form or a copy thereof is received by the Company
(including receipt by facsimile or electronic mail), and such date shall be the
calculation date for the foregoing formula, provided that certificates for the
resulting shares shall not be issued until delivery of the signed Cashless
Exercise Form and surrender of the Warrant Agreement as set forth above.
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(c) METHOD OF PAYMENT. The Purchase Price may be paid at the
Warrantholder's election either (i) by cash or check, (ii) by "cashless
exercise" in accordance with the provisions of Section 3(b), or (iii) at the
election of the Warrantholder, and at the Warrantholder's sole discretion, by
release of an equal amount of indebtedness owed to the Warrantholder. If the
Warrantholder elects to pay the Purchase Price through such release of
indebtedness, the amount so released will first be applied to any accrued
interest and unpaid interest under the Note, and any remaining amount shall be
applied to principal.
SECTION 4. RESERVATION OF SHARES.
During the term of this Agreement, the Company will at all times have
authorized and reserved a sufficient number of shares of its Common Stock to
provide for the exercise of the rights to purchase Common Stock as provided for
herein.
SECTION 5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Agreement, but in lieu of such fractional
shares that might otherwise result from the adjustment rights of Section 8, the
Company shall make a cash payment therefor upon the basis of the Exercise Price
then in effect.
SECTION 6. NO RIGHTS AS SHAREHOLDER/STOCKHOLDER.
This Agreement does not entitle the Warrantholder to any voting rights
or other rights as a shareholder/stockholder of the Company prior to issuance of
the certificate for the Common Stock delivered pursuant to the exercise of this
Agreement under Section 3(a) hereof .
SECTION 7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of
the registered holder of this Agreement. Warrantholder's initial address, for
purposes of such registry, is set forth below Warrantholder's signature on this
Agreement. Warrantholder may change such address by giving written notice of
such changed address to the Company.
SECTION 8. ADJUSTMENT RIGHTS.
The Exercise Price and the number of shares of Common Stock purchasable
hereunder are subject to adjustment, as follows:
(a) MERGER EVENT. If at any time there shall be Merger Event,
then, as a part of such Merger Event, lawful provision shall be made so that the
Warrantholder shall thereafter be entitled to receive, upon exercise of this
Agreement, the number of shares of common stock or other securities or property
of the successor corporation resulting from such Merger Event that would have
been issuable if Warrantholder had exercised this Agreement immediately prior to
the effective date of the Merger Event. In any such case, appropriate adjustment
(as determined in good faith by the Board) shall be made in the application of
the provisions of this Agreement with respect to the rights and interests of the
Warrantholder after the Merger Event to the end that the provisions of this
Agreement (including adjustments of the Exercise Price and number of shares of
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Common Stock purchasable) shall be applicable in their entirety, and to the
greatest extent possible. Without limiting the foregoing, in connection with any
Merger Event, upon the closing thereof, the successor or surviving entity shall
assume the obligations of this Agreement. In connection with a Merger Event and
upon Warrantholder's written election to the Company, the Company shall cause
this Agreement to be exchanged for the consideration that Warrantholder would
have received if Warrantholder chose to exercise its right to have shares issued
on a net issuance basis immediately prior to the effective date of the Merger
Event without actually exercising such right, and without acquiring such shares
and exchanging such shares for such consideration.
(b) RECLASSIFICATION OF SHARES. Except as set forth in Section
8(a), if the Company at any time shall, by combination, reclassification,
exchange or subdivision of securities or otherwise, change any of the securities
as to which purchase rights under this Agreement exist into the same or a
different number of securities of any other class or classes, this Agreement
shall thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the result of such change with respect
to the securities which were subject to the purchase rights under this Agreement
immediately prior to the effective date of such combination, reclassification,
exchange, subdivision or other change.
(c) SUBDIVISION OR COMBINATION OF SHARES. If the Company at any
time shall combine or subdivide its Common Stock, (i) in the case of a
subdivision, the Exercise Price shall be proportionately decreased, and the
number of shares of Common Stock issuable upon exercise of this Agreement shall
be proportionately increased, or (ii) in the case of a combination, the Exercise
Price shall be proportionately increased, and the number of shares of Common
Stock issuable upon the exercise of this Agreement shall be proportionately
decreased.
(d) STOCK DIVIDENDS. If the Company at any time while this
Agreement is outstanding and unexpired shall pay a dividend with respect to the
Common Stock payable in Common Stock, then the Exercise Price shall be adjusted,
from and after the date of determination of stockholders entitled to receive
such dividend or distribution, to that price determined by multiplying the
Exercise Price in effect immediately prior to such date of determination by a
fraction (A) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or distribution, and
(B) the denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution.
(e) NOTICE OF ADJUSTMENTS. If: (i) the Company shall declare any
dividend or distribution upon its stock in cash, property or securities other
than Common Stock; (ii) the Company shall offer for subscription prorata to the
holders of any class of its Common Stock or other convertible stock any
additional shares of stock of any class or other rights; (iii) there shall be
any Merger Event; (iv) the Company shall sell, lease, license or otherwise
transfer all or substantially all of its assets; or (v) there shall be any
voluntary dissolution, liquidation or winding up of the Company; then, in
connection with each such event, the Company shall send to the Warrantholder:
(A) at least thirty (30) days' prior written notice of the date on which the
books of the Company shall close or a record shall be taken for such dividend,
distribution, subscription rights (specifying the date on which the holders of
Common Stock shall be entitled thereto) or for determining rights to vote in
respect of such Merger Event, dissolution, liquidation or winding up; and (B) in
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the case of any such Merger Event, sale, lease, license or other transfer of all
or substantially all assets, dissolution, liquidation or winding up, at least
thirty (30) days' prior written notice of the date when the same shall take
place (and specifying the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such Merger Event, dissolution, liquidation or winding up).
Each such written notice (or a subsequent notice given at least five
(5) days prior to the Merger Event, dissolution, liquidation, or winding up)
shall set forth, in reasonable detail, (i) the event requiring the notice, and
(ii) if any adjustment is required to be made, (A) the amount of such
adjustment, (B) the method by which such adjustment was calculated, (C) the
adjusted Exercise Price (if the Exercise Price has been adjusted), and (D) the
number of shares subject to purchase hereunder after giving effect to such
adjustment, and shall be given by first class mail, postage prepaid, or by
reputable overnight courier with all charges prepaid, addressed to the
Warrantholder at the address for Warrantholder set forth in the registry
referred to in Section 7.
(f) TIMELY NOTICE. Failure to timely provide such notice required
by subsection (e) above shall entitle Warrantholder to retain the benefit of the
applicable notice period notwithstanding anything to the contrary contained in
any insufficient notice received by Warrantholder. For purposes of this
subsection (f), and notwithstanding anything to the contrary in Section 12(f),
the notice period shall begin on the date the Warrantholder actually receives a
written notice containing all the information required to be provided in such
subsection (e).
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
(a) RESERVATION OF COMMON STOCK. The Common Stock issuable upon
exercise of the Warrantholder's rights has been or will be duly and validly
reserved and, when issued in accordance with the provisions of this Agreement,
will be validly issued, fully paid and non-assessable, and will be free of any
taxes, liens, charges or encumbrances of any nature whatsoever; provided, that
the Common Stock issuable pursuant to this Agreement may be subject to
restrictions on transfer under state and/or federal securities laws. The Company
has made available to the Warrantholder true, correct and complete copies of its
Charter and current bylaws. The issuance of certificates for shares of Common
Stock upon exercise of this Agreement shall be made without charge to the
Warrantholder for any issuance tax in respect thereof, or other cost incurred by
the Company in connection with such exercise and the related issuance of shares
of Common Stock; provided, that the Company shall not be required to pay any tax
which may be payable in respect of any transfer and the issuance and delivery of
any certificate in a name other than that of the Warrantholder.
(b) DUE AUTHORITY. The execution and delivery by the Company of
this Agreement and the performance of all obligations of the Company hereunder,
including the issuance to Warrantholder of the right to acquire the shares of
Common Stock, have been duly authorized by all necessary corporate action on the
part of the Company. This Agreement constitutes a legal, valid and binding
agreement of the Company, enforceable in accordance with its terms.
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(c) CONSENTS AND APPROVALS. No consent or approval of, giving of
notice to, registration with, or taking of any other action in respect of any
state, federal or other governmental authority or agency is required with
respect to the execution, delivery and performance by the Company of its
obligations under this Agreement, except for the filing of notices pursuant to
Regulation D under the Act and any filing required by applicable state
securities law or any exchange on which shares of the Company's stock shall be
traded, which filings will be effective by the time required thereby.
(d) ISSUED SECURITIES. All issued and outstanding shares of the
Company's securities have been duly authorized and validly issued and are fully
paid and nonassessable. All outstanding shares of the Company's securities were
issued in full compliance with all federal and state securities laws.
(e) EXEMPT TRANSACTION. Subject to the accuracy of the
Warrantholder's representations in Section 10, the issuance of the Common Stock
upon exercise of this Agreement constitutes a transaction exempt from (i) the
registration requirements of Section 5 of the Act, in reliance upon Section 4(2)
thereof, and (ii) the qualification requirements of the applicable state
securities laws.
(f) COMPLIANCE WITH RULE 144. If the Warrantholder proposes to
sell Common Stock issuable upon the exercise of this Agreement, or the Common
Stock into which it is convertible, in compliance with Rule 144 promulgated by
the SEC, then, upon Warrantholder's written request to the Company, the Company
shall furnish to the Warrantholder, within ten days after receipt of such
request, a written statement confirming the Company's compliance with the filing
requirements of the SEC as set forth in such Rule, as such Rule may be amended
from time to time.
(g) INFORMATION RIGHTS. If at any time during the term of this
Agreement the Company is not subject to reporting requirements under either
Section 13(d) or Section 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Company shall provide to the Warrantholder
annual, audited financial statements of the Company within sixty (60) days after
the end of each fiscal year, and interim unaudited financial statements within
thirty (30) days after the end of each fiscal quarter.
SECTION 10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Agreement has been entered into by the Company in reliance upon
the following representations and covenants of the Warrantholder:
(a) INVESTMENT PURPOSE. The rights hereunder and the securities
that may be acquired on their exercise have been acquired for investment and not
with a view to the sale or distribution of any part thereof, and the
Warrantholder has no present intention of selling or engaging in any public
distribution of the same except pursuant to a registration or exemption.
(b) PRIVATE ISSUE. The Warrantholder understands (i) that the
Common Stock issuable upon exercise of this Agreement is not registered under
the Act or qualified under applicable state securities laws on the ground that
the issuance contemplated by this Agreement will be exempt from the registration
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and qualifications requirements thereof, and (ii) that the Company's reliance on
such exemption is predicated on the representations set forth in this Section
10.
(c) FINANCIAL RISK. The Warrantholder has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its investment, and has the ability to bear the economic
risks of its investment.
(d) RISK OF NO REGISTRATION. The Warrantholder understands that if
a registration statement covering the securities under the Act is not in effect
when it desires to sell (i) the rights to purchase Common Stock pursuant to this
Agreement or (ii) the Common Stock issuable upon exercise of the right to
purchase, it may be required to hold such securities for an indefinite period.
The Warrantholder also understands that any sale of (A) its rights hereunder to
purchase Common Stock or (B) Common Stock issued or issuable hereunder which
might be made by it in reliance upon Rule 144 under the Act may be made only in
accordance with the terms and conditions of that Rule.
(e) ACCREDITED INVESTOR. Warrantholder is an "accredited investor"
within the meaning of the Securities and Exchange Rule 501 of Regulation D, as
presently in effect.
SECTION 11. TRANSFERS.
This Agreement and all Warrants are not transferable, in whole or in
part (other than pursuant to the final sentence of this paragraph), and any
attempt to sell, assign, transfer, hypothecate or otherwise convey or encumber
or dispose of any interest herein or therein shall be void (other than pursuant
to the final sentence of this paragraph). The Company shall have no obligation
to recognize any such sale, assignment, transfer, hypothecation, or other
conveyance or encumbrance or disposal (other than pursuant to the final sentence
of this paragraph). Notwithstanding the foregoing, this Agreement and the
Warrants are transferable through a gift or a domestic relations order (but not
in a transfer for value) to a Family Member of the Warrantholder; provided any
such Family Member and the Warrants shall at all times remain subject to the
terms and conditions of this Agreement.
SECTION 12. MISCELLANEOUS.
(a) EFFECTIVE DATE. The provisions of this Agreement shall be
construed and shall be given effect in all respects as of the Effective Date.
This Agreement shall be binding upon any successors or assigns of the Company.
(b) REMEDIES. In the event of any default hereunder, the
non-defaulting party may proceed to protect and enforce its rights either by
suit in equity and/or by action at law. The parties hereto agree that the terms
of this Agreement shall be specifically enforceable by either party hereto
notwithstanding the availability of an adequate remedy at law. If either party
institutes any action or proceeding to specifically enforce the provisions
hereof, any person against whom such action or proceeding is brought hereby
waives the claim or defense that the complaining party has an adequate remedy at
law, and such person shall not offer in any such action or proceeding the claim
or defense that such remedy at law exists.
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(c) NO IMPAIRMENT OF RIGHTS. The Company will not, by amendment of
its Charter or through any other means, avoid or seek to avoid the observance or
performance of any of the terms of this Agreement, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate in order to protect the rights of the
Warrantholder against impairment.
(d) ATTORNEY'S FEES. In any litigation, arbitration or court
proceeding between the Company and the Warrantholder relating hereto, the
prevailing party shall be entitled to reasonable attorneys' fees and reasonable
expenses and all costs of proceedings incurred in enforcing this Agreement. For
the purposes of this Section 12(d), attorneys' fees shall include without
limitation fees incurred in connection with the following: (i) contempt
proceedings; (ii) discovery; (iii) any motion, proceeding or other activity of
any kind in connection with an insolvency proceeding; (iv) garnishment, levy,
and debtor and third party examinations; and (v) post-judgment motions and
proceedings of any kind, including without limitation any activity taken to
collect or enforce any judgment.
(e) SEVERABILITY. In the event any one or more of the provisions
of this Agreement shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall be unimpaired,
and the invalid, illegal or unenforceable provision shall be replaced by a
mutually acceptable valid, legal and enforceable provision, which comes closest
to the intention of the parties underlying the invalid, illegal or unenforceable
provision.
(f) NOTICES. Except as otherwise provided herein, any notice,
demand, request, consent, approval, declaration, service of process or other
communication that is required, contemplated, or permitted under this Agreement
or with respect to the subject matter hereof shall be in writing, and shall be
deemed to have been validly served, given, delivered, and received upon the
earlier of: (i) the first business day after transmission by facsimile or hand
delivery or deposit with an overnight express service or overnight mail delivery
service; or (ii) the third calendar day after deposit in the United States
mails, with proper first class postage prepaid, and shall be addressed to the
party to be notified as follows:
If to Warrantholder:
------------------------------
------------------------------
------------------------------
Telephone: ________________
Email: _________________
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If to the Company:
Interplay Entertainment Corp.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Shartsis ▇▇▇▇▇▇ LLP
Attention: P. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as each party may designate for itself by like notice.
(g) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the Note
constitute the entire agreement and understanding of the parties hereto in
respect of the subject matter hereof, and supersede and replace in their
entirety any prior proposals, term sheets, letters, negotiations or other
documents or agreements, whether written or oral, with respect to the subject
matter hereof. None of the terms of this Agreement may be amended except by an
instrument executed by each of the parties hereto.
(h) HEADINGS. The various headings in this Agreement are inserted
for convenience only and shall not affect the meaning or interpretation of this
Agreement or any provisions hereof.
(i) ADVICE OF COUNSEL. Each of the parties represents to each
other party hereto that it has discussed (or had an opportunity to discuss) with
its counsel this Agreement and, specifically, the provisions of Sections 12(m),
12(n) and 12(o).
(j) NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
(k) NO WAIVER. No omission or delay by Warrantholder at any time
to enforce any right or remedy reserved to it, or to require performance of any
of the terms, covenants or provisions hereof by the Company at any time
designated, shall be a waiver of any such right or remedy to which Warrantholder
is entitled, nor shall it in any way affect the right of Warrantholder to
enforce such provisions thereafter.
(l) SURVIVAL. All agreements, representations and warranties
contained in this Agreement or in any document delivered pursuant hereto shall
be for the benefit of the parties and shall survive the execution and delivery
of this Agreement and the expiration or other termination of this Agreement.
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(m) GOVERNING LAW. This Agreement has been negotiated and
delivered to Warrantholder in the State of California , and shall have been
accepted by Warrantholder in the State of California. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of California, excluding conflict of laws principles that would cause the
application of laws of any other jurisdiction.
(n) CONSENT TO JURISDICTION AND VENUE. The Company hereby
expressly and irrevocably submits to the exclusive jurisdiction of the courts of
the state of California and of the United States District Court Central District
of California for the purpose of any litigation arising hereunder. The Company
further irrevocably consents to the service of process by registered mail,
postage prepaid, or by personal service within or without the state of
California. The Company hereby expressly and irrevocably waives, to the fullest
extent permitted by law, any objection which it may have or hereafter may have
to the laying of venue of any such litigation brought in any such court referred
to above and any claim that any such litigation has been brought in an
inconvenient forum.
(o) MUTUAL WAIVER OF JURY TRIAL. THE WARRANTHOLDER AND THE COMPANY
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE WARRANTHOLDER
OR THE COMPANY. THE COMPANY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL
AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE WARRANTHOLDER TO MAKE THE LOAN EVIDENCED BY THE
NOTE.
(p) COUNTERPARTS. This Agreement and any amendments, waivers,
consents or supplements hereto may be executed in any number of counterparts,
and by different parties hereto in separate counterparts, each of which when so
delivered shall be deemed an original, but all of which counterparts shall
constitute but one and the same instrument.
(q) SPECIFIC PERFORMANCE. The parties hereto hereby declare that
it is impossible to measure in money the damages which will accrue to the other
by reason of any failure to perform any of the obligations under this Agreement
and agree that the terms of this Agreement shall be specifically enforceable by
any injured party to this Agreement. If an injured party to this Agreement
institutes any action or proceeding to specifically enforce the provisions
hereof, any person against whom such action or proceeding is brought hereby
waives the claim or defense therein that the other has an adequate remedy at
law, and such person shall not offer in any such action or proceeding the claim
or defense that such remedy at law exists.
The next page is the signature page.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Warrant
Agreement to be executed by its officers thereunto duly authorized as of the
date first set forth above.
COMPANY: INTERPLAY ENTERTAINMENT CORP.
By:
----------------------------------------
Name: _____________________________
Title: __________________________
WARRANTHOLDER: __________________________________
By:
----------------------------------------
Name: _____________________________
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EXHIBIT I
NOTICE OF EXERCISE
To: Interplay Entertainment Corp. (the "Company"):
(1) The undersigned Warrantholder hereby elects to purchase _________
shares of the Common Stock of the Company pursuant to the terms of the Warrant
Agreement dated as of October 2, 2006 (the "Agreement") between the Company and
the Warrantholder, and tenders herewith payment of the Purchase Price in full,
together with all applicable transfer taxes, if any.
(2) Please deliver the Warrant Shares as follows:
Warrant Shares are to be issued [electronically using the Depositary
Trust Company Fast Automated Securities Transfer program to account
number ________.] The Broker's Name is ____________, and it will
initiate such transaction on [date];
or
Warrant Shares are to be delivered to the following address:
(Name)
WARRANTHOLDER:
By:
Name:
Date:
Capitalized terms used but not defined herein have the same meanings
ascribed to them in the Warrant Agreement.
APPROVED:
Interplay Entertainment Corp.
Name:
Title:
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EXHIBIT II
ACKNOWLEDGMENT OF EXERCISE
The undersigned, Interplay Entertainment Corp., hereby acknowledges
receipt of the "Notice of Exercise" from ____________ to purchase ______ shares
of the Common Stock of Interplay Entertainment Corp., pursuant to the terms of
the Agreement, and further acknowledges that upon such exercise, the Agreement
remains in full force and effect as to _____ shares of Common Stock.
Capitalized terms used but not defined herein have the same meanings
ascribed to them in the Warrant Agreement.
COMPANY: Interplay Entertainment Corp.
By:
Name:
Title:
Date:
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EXHIBIT III
CASHLESS EXERCISE FORM
The undersigned hereby elects, pursuant to the exercise provisions of
Section 3(b) of the Warrant, to exchange the Warrant for such number of Warrant
Shares as set forth on the calculation attached hereto.
Please issue a certificate or certificates for such Warrant Shares in
the name of:
Name: ________________________________________________
(Please Print Name, Address and SSN or EIN of
Shareholder above)
Address: ________________________________________________
------------------------------------------------
------------------------------------------------
SSN or EIN: ___________________________
Signature: ______________________________________
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