EXHIBIT 10.2
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT (the "Agreement") is entered into
as of this 30th day of April, 1999, between RUNECRAFT LIMITED, a corporation
organized under the laws of the United Kingdom, whose principal place of
business is Xxxx 00/00, Xxxxxx Business and Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxx
Xxxxxxxxx XX00 0XX, Company Registration Number 3349033 (hereinafter referred to
as "Purchaser"), and INTERPLAY ENTERTAINMENT CORP., a Delaware corporation,
whose principal place of business is 00000 Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx
00000 (hereinafter referred to as the "Company").
A. WHEREAS, the Company and Purchaser have entered into that certain
Multi-Product Agreement of even date herewith (the "Multi-Product Agreement"),
pursuant to which Purchaser agreed to develop certain property on a work-for-
hire basis for the Company in exchange for, among other things, Common Stock of
the Company.
B. WHEREAS, this Agreement is intended to effect the issuance of such
Common Stock pursuant to the Multi-Product Agreement.
C. WHEREAS, the board of directors of the Company has determined that the
fair market value as of the date hereof is Two and One-Sixteenth Dollars
($2.0625) per share (the "Fair Market Value per Share").
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth below, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein shall
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have their meanings as set forth in the Multi-Product Agreement.
2. ISSUANCE OF SHARES. The Company hereby sells to Purchaser and
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Purchaser hereby purchases from the Company an aggregate of Four Hundred Eighty-
Four Thousand Eight Hundred Forty-Eight (484,848) shares of Common Stock, $.001
par value, of the Company (the "Shares"), subject to the terms and conditions
herein set forth.
3. CONSIDERATION. In exchange for the Shares, Purchaser shall perform its
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obligations under the Multi-Product Agreement.
4. VESTED AND NONVESTED SHARES DEFINED. Certain of the Shares owned by
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the Purchaser shall be subject to (a) restrictions on transfer and (b) the right
and option of the Company to purchase the Shares as set forth herein.
Hereinafter, the Shares which are not subject to such restrictions and right of
the Company to purchase the Shares are sometimes referred to as "Vested Shares,"
and the Shares which are not so vested are sometimes referred to as the
"Nonvested Shares". For purposes of this Agreement, the Shares shall vest and
become Vested Shares in accordance with the following: upon the Company's
Acceptance of each Product, 10% of the Shares originally issued to Purchaser
hereunder shall become Vested Shares. Fractional Shares shall be rounded to the
nearest whole number and half Shares shall be rounded up to the nearest whole
number.
5. RESTRICTIONS ON TRANSFER. The Nonvested Shares shall not be sold,
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exchanged, transferred, pledged, hypothecated or otherwise disposed of, shall
not be assigned or transferred, directly or indirectly and shall not be subject
to execution, attachment or similar process, and any attempted sale or other
disposition shall be null and void.
6. RIGHT OF PURCHASE.
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a. In the event the Company exercises one of its Stock Repurchase
Options resulting from a Delayed Delivery, a Missed Delivery, or a Cancelled
Product, the Company, or its assignees, shall have an unconditional option to
purchase from the Purchaser 10% of the Shares originally issued to Purchaser
hereunder. The purchase price to be paid by the Company for such Shares shall be
$0.001 per Share. Such option shall be exercised in accordance with Section 6(b)
of this Agreement.
b. For ninety (90) days after the date a Stock Repurchase Option
arises, the Company, or its assignees, shall have the right to repurchase all or
any part of such Shares resulting from the application of Section 6(a) by giving
the Purchaser and/or any other person obligated to transfer the Shares written
notice of the number of such Shares which the Company desires to purchase. The
Company shall deliver to the Purchaser and/or any other person obligated to
transfer the Shares, within such ninety (90) day period, a written notice
indicating the number of Shares to be purchased by the Company, or its
assignees. In the event that the Company, or its assignees, does not elect to
exercise such Stock Repurchase Option under the terms of this Agreement and the
Multi-Product Agreement within the above period, such Stock Repurchase Option
shall expire. Such expiration shall not affect any other Stock Repurchase
Options which the Company may have or obtain under the Multi-Product Agreement.
c. In the event that the Company, or its assignees, has elected to
exercise a Stock Repurchase Option as to part or all of the Shares within the
period described above, the Company shall notify the Purchaser and/or any other
person obligated to transfer the Shares as set forth in Section 6(b) above
within the period described above and the Purchaser or such other person shall
deliver to the Company, or its assignees, certificate(s) representing the Shares
to be acquired by the Company within ten (10) days following the date of the
notice from the Company, if in Purchaser's or such person's possession. The
Company, or its assignees, shall deliver to the Purchaser against delivery of
the Shares, checks of the Company, or its assignees, payable to the Purchaser
and/or any other person obligated to transfer the Shares in the aggregate amount
of the purchase price to be paid as set forth in Section 6(a) above or by
cancellation of all or a portion of any outstanding indebtedness of Purchaser to
the Company, or any combination thereof.
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7. S-3 REGISTRATION.
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a. The Company shall use its best efforts to register all of the
Shares on Form S-3 (or any similar form promulgated by the Securities and
Exchange Commission) and undertake any related qualification or compliance prior
to August 31, 1999. The Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 7: (a) if
Form S-3 is not available for such offering by the Company; (b) if the Company
shall furnish to Purchaser a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such Form S-3 Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than one hundred twenty (120) days; provided,
however, that the Company shall not utilize this right more than once; or (c) in
any particular jurisdiction in which the Company would be required to qualify to
do business or to execute a general consent to service of process in effecting
such registration, qualification or compliance.
b. The Company will use its best efforts to maintain the effectiveness
for up to nine (9) months of any registration statement pursuant to which any of
the Shares are being offered.
c. Indemnification of Purchaser.
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(1) The Company will indemnify and hold harmless Purchaser from and
against any and all losses, claims, damages, expenses or liabilities (or any
action in respect thereof), joint or several, to which it becomes subject under
the Securities Act or under any other statute or at common law or otherwise,
and, except as hereinafter provided, will reimburse Purchaser for any legal or
other expenses reasonably incurred by it, as such expenses are incurred, in
connection with investigating or defending any actions whether or not resulting
in any liability, insofar as such losses, claims, damages, expenses, liabilities
or actions arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the registration statement, in
any preliminary or amended preliminary prospectus or in the prospectus (or the
registration statement or prospectus as from time to time amended or
supplemented by the Company); (ii) arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein not misleading; or
(iii) any violation by the Company of the Securities Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), a state securities law or
any rule or regulation under the Securities Act, the Exchange Act or any state
securities law; provided, however, that the indemnity contained in this Section
7(c) will not apply where such untrue statement or omission was made in such
registration statement, preliminary or amended, preliminary prospectus or
prospectus in reliance upon and in conformity with information furnished in
writing to the Company in connection therewith by or on behalf or Purchaser,
expressly for use therein. Promptly after receipt by Purchaser of notice of the
commencement of any action in respect of which indemnity may be sought against
the Company, Purchaser will notify the Company in writing of the commencement
thereof, and, subject to the provisions hereinafter stated, the Company shall
assume the defense of such action (including the employment of counsel), and the
payment of expenses insofar as such action shall relate to any alleged liability
in respect of which indemnity may be sought against the Company. Purchaser shall
have the right to employ separate counsel in any such action and to participate
in the defense thereof in the event the representation of Purchaser by counsel
retained by or on the behalf of the Company would be inappropriate due to
conflicts of interest between Purchaser and the Company, in which case the
Company shall pay, as incurred, the fees and expenses of such separate counsel.
(2) The Company shall not be liable to indemnify any person under
this Section 7(c) for any settlement of any such action effected without the
Company's consent (which consent shall not be unreasonably withheld). The
Company shall not, except with the approval of Purchaser (which
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approval will not be unreasonably withheld), consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term thereof
the giving by the claimant or plaintiff to the parties being so indemnified of a
release from all liability in respect to such claim or litigation.
d. Indemnification of Company. Purchaser will indemnify and hold
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harmless the Company, each of its directors, each of its officers who have
signed the registration statement, each underwriter of the Shares (including any
broker or dealer through whom any of such shares may be sold) and each person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act from and against any and all losses, claims, damages, expenses or
liabilities (or any action in respect thereof), joint or several, to which they
or any of them may become subject under the Securities Act or under any other
statute or at common law or otherwise, and, except as hereinafter provided, will
reimburse the Company and each such director, officer, underwriter or
controlling person for any legal or other expenses reasonably incurred by it, as
such expenses are incurred, in connection with investigating or defending any
actions whether or not resulting in any liability, insofar as such losses,
claims, damages, expenses, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the registration statement, in any preliminary or amended preliminary prospectus
or in the prospectus (or the registration statement or prospectus as from time
to time amended or supplemented) or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein not misleading, but
only insofar as any such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company in connection
therewith by Purchaser, expressly for use therein; provided, however, that
Purchaser's obligations hereunder shall be limited to an amount equal to the
proceeds to Purchaser of the shares sold in such registration. Promptly after
receipt of notice of the commencement of any action in respect of which
indemnity may be sought against Purchaser, the Company will notify Purchaser in
writing of the commencement thereof, and Purchaser shall, subject to the
provisions hereinafter stated, assume the defense of such action (including the
employment of counsel, who shall be counsel satisfactory to the Company) and the
payment of expenses insofar as such action shall relate to the alleged liability
in respect of which indemnity may be sought against Purchaser. The Company and
each such director, officer, underwriter or controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof in the event the representation of the Company, any of its
officers or directors or any underwriter or controlling person by counsel
retained by or on the behalf of Purchaser would be inappropriate due to
conflicts of interest between any such person and any other party represented by
such counsel in such proceeding or action, in which case Purchaser shall pay, as
incurred, the fees and expenses of such separate counsel. Notwithstanding the
two preceding sentences, if the action is one in which the Company may be
obligated to indemnify Purchaser pursuant to Section 7(b), the Company shall
have the right to assume the defense of such action, subject to the right of
Purchaser to participate therein as permitted by Section 7(b). Purchaser shall
not be liable to indemnify any person for any settlement of any such action
effected without Purchaser's consent (which consent shall not be unreasonably
withheld). Purchaser shall not, except with the approval of the Company (which
approval shall not be unreasonably withheld), consent to entry of any judgment
or enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to the party being so
indemnified of a release from all liability in respect to such claim or
litigation.
e. Contribution. If the indemnification provided for in this Section
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7 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in
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connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
f. Expenses. The Company shall bear all costs and expenses of the
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registration contemplated by this Agreement, including, but not limited to,
printing, reasonable legal and accounting expenses, Securities and Exchange
Commission filing fees and "blue sky" fees and expenses; provided, however, that
the Company shall have no obligation to pay or otherwise bear any portion of the
underwriter's commissions or discounts attributable to Purchaser's Shares being
offered and sold by Purchaser, or any of such expenses if the payment of such
expenses by the Company is prohibited by the laws of a state in which such
offering is qualified and only to the extent so prohibited.
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8. LEGENDS. Each certificate representing the Shares now or hereafter
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owned by the Purchaser shall be endorsed with the following legend:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AND REPURCHASE RIGHTS IN FAVOR OF THE
CORPORATION AND/OR ITS NOMINEE(S), AS SET FORTH IN A RESTRICTED STOCK
PURCHASE AGREEMENT. TRANSFER OF THESE SHARES MAY BE MADE ONLY IN
COMPLIANCE WITH THE PROVISIONS OF SAID AGREEMENT, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL OFFICE OF SAID CORPORATION. SUCH TRANSFER
RESTRICTIONS AND REPURCHASE RIGHTS ARE BINDING ON TRANSFEREES OF THESE
SHARES."
9. INVESTMENT REPRESENTATIONS.
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a. Purchaser represents and warrants that it is acquiring the Shares
for its own account, not as a nominee or agent, for investment and not with a
view to or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act of 1933 (the "1933 Act").
b. Purchaser understands that (i) the Shares have not been registered
under the 1933 Act in reliance on a specific exemption therefrom, that they must
be held by Purchaser indefinitely, and that Purchaser must therefore bear the
economic risk of such investment indefinitely, unless a subsequent disposition
thereof is registered under the 1933 Act or is exempt from such registration;
(ii) each certificate representing the Shares will be endorsed with the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN ACQUIRED BY THE HOLDER FOR
INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED, OR
OTHERWISE DISPOSED OF EXCEPT AS MAY BE AUTHORIZED UNDER THE SECURITIES ACT
OF 1933, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER.
and (iii) the Company will instruct any transfer agent not to register the
transfer of any of the Shares unless the conditions specified in the foregoing
legend are satisfied.
c. Purchaser has been furnished with such materials and has been given
access to such information relating to the Company as Purchaser or its qualified
representative has requested and Purchaser has been afforded the opportunity to
ask questions regarding the Company and the Shares, all as it has found
necessary to make an informed investment decision.
d. Purchaser represents and warrants that it is either an accredited
investor within the meaning of Regulation D under the 1933 Act, or by reason of
its business or financial experience, or the business or financial experience of
its professional advisor, it has the capacity to protect its own interests in
connection with this transaction.
10. DEPOSIT OF SHARES. Company shall deposit the stock certificate(s)
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representing the Shares with Purchaser.
11. RECAPITALIZATION. In the event that, as the result of a stock split
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or stock dividend or combination of shares or any other change, or exchange for
other securities, by reclassification, or
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recapitalization of the Shares, the Purchaser shall be entitled to new or
additional or different shares of stock or securities, the certificate or
certificates for, or other evidences of, such new or additional or different
shares or securities shall be imprinted with the legends provided in Sections 8
and 9 above, and shall be delivered to Purchaser.
12. SHARES FREE AND CLEAR. All Shares purchased by the Company (or its
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assignees) pursuant to Section 6 of this Agreement shall be delivered by the
Purchaser free and clear of all claims, liens and encumbrances of every nature
(except the provisions of this Agreement, the Company's Certificate of
Incorporation, as amended, and any conditions concerning the Shares imposed
pursuant to any applicable provisions of federal or state securities laws), and
the purchaser thereof shall acquire full and complete title and right to all of
the Shares, free and clear of all claims, liens and encumbrances of every nature
(again except for the provisions of this Agreement, the Company's Certificate of
Incorporation, as amended, and such securities laws).
13. STOP-TRANSFER NOTICES. The Purchaser understands and agrees that, in
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order to ensure compliance with the restrictions referred to herein, the Company
may issue appropriate "stop-transfer" instructions to its transfer agent, if
any, and that, if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records.
14. MISCELLANEOUS
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a. Notices. Any notice required or permitted to be given to a party
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pursuant to the provisions of this Agreement shall be in writing and shall be
effective upon personal delivery or three (3) days following deposit with an
internationally recognized courier service, postage prepaid and properly
addressed to the party to be notified as set forth below such party's signature
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties hereto.
b. Successors and Assigns. This Agreement and the rights and
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obligations of the parties hereunder shall inure to the benefit of, and be
binding upon, their respective permitted successors, assigns and legal
representatives.
c. Severability. In the event one or more of the provisions of this
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Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
d. Amendments and Waivers. Any amendment or modification of this
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Agreement shall be effective only if evidenced by a written instrument executed
by duly authorized representatives of the parties hereto. Any party may waive
its individual rights hereunder, either prospectively or retroactively, which
shall be effective only if evidenced by a written instrument executed by a duly
authorized representative of such party. In no event shall such waiver of any
rights hereunder constitute the waiver of such rights in any future instance
unless the waiver so specifies in writing.
e. Governing Law. This Agreement is being executed and delivered and
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is intended to be performed in, and shall be governed by and construed in
accordance with, the laws of the State of California.
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f. Attorneys' Fees. If any party shall bring an action in law or
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equity against another to enforce or interpret any of the terms, covenants and
provisions of this Agreement, the prevailing party in such action shall be
entitled to reasonable attorneys' fees which the other party hereby agrees to
pay.
g. Entire Agreement. This Agreement, along with the Multi-Product
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Agreement, constitutes the entire agreement between the parties pertaining to
its subject matter and supersedes all prior or contemporaneous written or oral
agreements and understandings of the parties, either express or implied.
h. Counterparts. This Agreement may be executed in counterparts,
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each of which shall be an original but all of which together shall constitute
one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year indicated above.
COMPANY:
INTERPLAY ENTERTAINMENT CORP.
By:________________________________
Its:_______________________________
PURCHASER:
RUNECRAFT LIMITED
By:________________________________
Its:_______________________________
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