AGREEMENT
THIS AGREEMENT (this "AGREEMENT") is made and entered into as of May 15,
2001, by and among INTERPLAY ENTERTAINMENT CORP., a Delaware corporation (the
"INTERPLAY"), Xxxxx Xxxxx, an individual ("FARGO"), Xxxxx Interactive, S.A.
("XXXXX") and Xxxxx Xxxx, an individual ("CAEN") (Caen, Fargo, Xxxxx and
Interplay are herein collectively referred to as the "PARTIES").
RECITALS
X. Xxxxx, Fargo and Interplay were parties to that certain Stockholders
Agreement dated as of November 2, 1999 (the "STOCKHOLDERS AGREEMENT"), pursuant
to which Xxxxx and Fargo agreed to vote their shares of stock to elect a board
of directors of Interplay (the "BOARD") comprised as set forth in Section 2 of
the Stockholders Agreement.
B. The Stockholders Agreement has terminated in accordance with its terms.
C. Caen is also an executive officer and Director of Xxxxx, a significant
stockholder of Interplay, and Fargo is the Chief Executive Officer, Chairman,
and a significant stockholder of Interplay.
D. The Parties desire to enter into this Agreement to govern their conduct
pending the election of successors to the members of the Board.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, and subject to the conditions set forth herein, the parties
agree as follows:
1. COVENANTS OF INTERPLAY.
1.1 Interplay and Fargo agree that, to their current actual knowledge, the
form of Amendment No. 5 to the Schedule 13D (the "13D AMENDMENT") filed by
Xxxxx, a copy of which is attached as ATTACHMENT A hereto, is true and accurate
in all respects.
1.2 Interplay and Fargo each agree and covenant never to file a lawsuit,
arbitration proceeding or any other administrative proceeding against any Caen
or Xxxxx, or any of their respective affiliates or agents for any causes of
action, claims, actions, rights, or remedies arising out of or from (i) any
inaccuracies in, omissions from, or any delays in filing of, the 13D Amendment,
or (ii) asserting any fact that if true would render the 13D Amendment untrue or
misleading in any material respect.
1.3 Interplay shall call, upon no less than 40 days' notice to all
stockholders, and hold its annual meeting of its stockholders (the "ANNUAL
MEETING") by August 15, 2001 for the purpose of electing all of its directors
and for such other purposes as may be determined by the Board. The record date
for the Annual Meeting and any subsequent adjournments or postponements thereof
shall be no later than the earlier to occur of June 19, 2001 or the day
preceding the date upon which any share of Series A Preferred Stock is first
called for redemption.
1.4 Interplay represents and warrants that this Agreement constitutes the
legal, valid and binding obligation of Interplay and is enforceable against
Interplay in accordance with its terms, except as such enforcement is limited by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally. All corporate acts and proceedings required for the
valid authorization, execution and delivery of this Agreement and the
performance of this Agreement have been lawfully and validly taken.
1.5 Interplay and Fargo each agree that they will not during the period
commencing on the date hereof and ending at the close of business on the date of
the Annual Meeting, amend the Bylaws or the Certificate of Incorporation of
Interplay or take any action the effect or purpose of which would be to amend
the Bylaws or the Certificate of Incorporation of Interplay.
2. COVENANTS BY CAEN AND XXXXX.
2.1 Caen agrees not to deliver notice of any stockholders meeting prior to
June 1, 2001.
2.2 Xxxxx represents and warrants that this Agreement constitutes the
legal, valid and binding obligation of Xxxxx and is enforceable against Xxxxx in
accordance with its terms, except as such enforcement is limited by bankruptcy,
insolvency and other similar laws affecting the enforcement of creditors' rights
generally. All corporate acts and proceedings required for the valid
authorization, execution and delivery of this Agreement and the performance of
this Agreement have been lawfully and validly taken.
3. INJUNCTIVE RELIEF. It is hereby agreed and acknowledged that it will be
impossible to measure in money the damages that would be suffered if the Parties
fail to comply with any of the obligations herein imposed on them and that in
the event of any such failure, an aggrieved Party will be irreparably damaged
and will not have an adequate remedy at law. Any such Party shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, and if any action should be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law.
4. MISCELLANEOUS.
4.1 NOTICES. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission
(which must be confirmed) or by United States first class, registered or
certified mail, postage prepaid, to the following addresses:
(a) if to Xxxxx or to Caen, to:
Herve Caen
c/x Xxxxx Software Corporation
00000 Xxxxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx Xxxx, Chairman and
Chief Executive Officer
Telecopier: (000) 000-0000
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with copies to:
Xxxxxx Xxxxxxxx, Esq.
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxx Xxxx - 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Telecopier: (000) 000-0000
(b) if to Interplay or to Fargo:
Interplay Entertainment Corp.
00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxx, Chairman and
Chief Executive Officer
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx, Esq.
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, a professional corporation
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails. Any
party may from time to time change its address for further Notices hereunder by
giving notice to the other parties in the manner prescribed in this Section.
4.2 ENTIRE AGREEMENT. This Agreement contains the sole and entire agreement
and understanding of the parties with respect to the entire subject matter of
this Agreement, and any and all prior discussions, negotiations, commitments and
understandings, whether oral or otherwise, related to the subject matter of this
Agreement are hereby merged herein.
4.3 ASSIGNMENT. No party may assign this Agreement, and any attempted or
purported assignment or any delegation of any party's duties or obligations
arising under this Agreement to any third party or entity shall be deemed to be
null and void, and shall constitute a material breach by such party of its
duties and obligations under this Agreement.
4.4 WAIVER AND AMENDMENT. No provision of this Agreement may be waived
unless in writing signed by all the parties to this Agreement, and waiver of any
one provision of this Agreement shall not be deemed to be a waiver of any other
provision. This Agreement may be amended only by a written agreement executed by
all of the parties to this Agreement.
4.5 GOVERNING LAW; JURISDICTION. This Agreement shall be construed in
accordance with the laws of the State of Delaware without giving effect to the
principles of conflicts of law thereof. In the event of any action, suit or
proceeding brought under or in connection with
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this Agreement exclusive venue and jurisdiction shall lie with the state and
federal courts of the State of Delaware.
4.6 SEVERABILITY. Whenever possible each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be or become prohibited or invalid
under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
4.7 CAPTIONS. The various captions of this Agreement are for reference only
and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
4.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
4.9 COSTS AND ATTORNEYS' FEES. If any action, suit, arbitration or other
proceeding is instituted to remedy, prevent or obtain relief from a default in
the performance by any party to this Agreement of its obligations under this
Agreement, the prevailing party shall recover all of such party's attorneys'
fees incurred in each and every such action, suit, arbitration or other
proceeding, including any and all appeals or petitions therefrom. As used in
this Section, attorneys' fees shall be deemed to mean the full and actual costs
of any legal services actually performed in connection with the matters involved
calculated on the basis of the usual fee charged by the attorney performing such
services and shall not be limited to "reasonable attorneys' fees" as defined in
any statute or rule of court.
4.10 JUDICIAL INTERPRETATION. Should any provision of this Agreement
require judicial interpretation, it is agreed that a court interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against any person by reason of the rule of construction
that a document is to be construed more strictly against the person who itself
or through its agent prepared the same, it being agreed that all parties have
participated in the preparation of this Agreement.
4.11 FORCE MAJEURE. If any party to this Agreement is delayed in the
performance of any of its obligations under this Agreement or is prevented from
performing any such obligations due to causes or events beyond its control,
including, without limitation, acts of God, fire, flood, earthquake, strike or
other labor problem, injunction or other legal restraint, present or future law,
governmental order, rule or regulation, then such delay or nonperformance shall
be excused and the time for performance thereof shall be extended to include the
period of such delay or nonperformance.
(SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, this Agreement has been made and entered into as of the
date and year first above written.
INTERPLAY ENTERTAINMENT CORP.,
a Delaware corporation
By: /S/ XXXXX XXXXX
-------------------------------------
Xxxxx Xxxxx
Its: Chief Executive Officer
XXXXX XXXXX
/S/ XXXXX XXXXX
-------------------------------------------
XXXXX INTERACTIVE S.A.,
a French corporation
By: /S/ HERVE CAEN
--------------------------------------
Herve Caen
Its: Chairman of the Board
HERVE CAEN
/S/ HERVE CAEN
------------------------------------------
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ATTACHMENT A
SCHEDULE 13D AMENDMENT
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