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Exhibit 10.11
PRODUCTION SERVICES AGREEMENT
PRODUCTION
SERVICES AGREEMENT dated as of March 31, 2006 between
Infogrames Entertainment SA, at 1 Place Verrazzano, 69252 Lyon
cedex 09, France
acting on behalf of itself and of its affiliates (other than Atari,
Inc.) and
Atari, Inc. ("ATARI"), at 417 Fifth Avenue, New York, NY 10016
(this
"Agreement").
WITNESSETH:
WHEREAS, IESA and
Atari are affiliated entities active in the field of
digital entertainment and interactive games.
WHEREAS,
Atari has developed highly-recognized know-how and experience
in
the production of interactive games and has agreed to provide
production
services to IESA and its affiliates (together "IESA").
NOW,
THEREFORE, in consideration of the mutual covenants and
agreements
contained herein, the parties hereto agree as follows:
ARTICLE I
PRODUCTION SERVICES TO BE PROVIDED
1.01.
Performance of PRODUCTION SERVICES.
(a) Subject to the terms and conditions set forth herein and on
Schedule I hereto, as may be amended from time to time ("Schedule
I"), Atari or
its subsidiaries, as applicable, shall provide IESA with the
services set forth
on Schedule I (the "PRODUCTION SERVICES"). The PRODUCTION SERVICES
shall consist
of the services listed on Schedule 1. Atari or IESA may at any time
amend
Schedule I with the prior written consent of the other party. The
PRODUCTION
SERVICES will be provided to IESA to the extent that the conduct of
its business
during the Term undergoes no significant change that would
materially expand
Atari's obligations hereunder as they exist at the beginning of the
Term.
(b) Except as specifically provided in Schedule I , Atari or
its
subsidiaries, as applicable, shall provide each of the PRODUCTION
SERVICES
listed in Schedule I for a term commencing on the date hereof and
ending on
March 31, 2011, unless earlier terminated by IESA or Atari in
accordance with
Section 2.01 hereof (collectively, the "PRODUCTION SERVICES Period"
or "Term.")
(c) Atari or its subsidiaries, as applicable, shall provide the
PRODUCTION SERVICES to IESA and/or its affiliates promptly with
that degree of
skill, attention and care that Atari exercises and has heretofore
exercised with
respect to furnishing comparable services to itself and its
affiliates.
(d) Representatives of Atari and IESA, or IESA's designee,
shall
meet, at least, on a semi-annual basis to review the performance of
the
PRODUCTION SERVICES.
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(e) Unless otherwise specified in Schedule I, all employees and
representatives of Atari or its subsidiaries, as applicable (other
than Bruno
Bonnell), providing the PRODUCTION SERVICES hereunder to IESA
during the Term of
this Agreement (collectively, the "PRODUCTION SERVICES Employees")
shall be
deemed for all purposes (including compensation and employee
benefits) to be
employees or representatives solely of Atari and not to be
employees or
representatives of IESA or to be independent contractors thereof.
In performing
their respective duties hereunder, all such employees and
representatives of
Atari shall be under the direction, control and supervision of
Atari and Atari
shall have the sole right to exercise all authority with respect to
the
employment (including termination of employment), assignment and
compensation of
such employees and representatives, subject to compliance with the
terms and
provisions contained in this Agreement including, without
limitation, the
provision of the PRODUCTION SERVICES.
1.02.
Billing and Payment for the PRODUCTION SERVICES.
(a) The Parties agree that the effective date of this Agreement
shall be July 1, 2005. For a period of six months following the
Effective Date,
Atari shall bill IESA for the PRODUCTION SERVICES at cost with no
upcharge,
except for quality assurance services which shall continue to be
billed at cost
plus 10%, and, thereafter, at cost plus 6%, except for quality
assurance
services which shall continue to be billed at cost plus 10%, or as
otherwise
agreed upon in writing by Atari and Infogrames Entertainment SA.
Atari will
provide an estimated budget of such Production Services no later
than 15 days
prior to the end of the fiscal year.
(b) Beginning on April 1, 2006, IESA and Atari shall review the
costs of the PRODUCTION SERVICES on a yearly basis and shall use
commercially
reasonable efforts to mutually agree to changes to the PRODUCTION
SERVICES by no
later than the last day of the fiscal year during which such annual
review
occurs.
(c) Atari shall, on a quarterly basis, submit to IESA its
billing
invoice in US Dollars (the "PRODUCTION SERVICES Invoice") setting
out detailed
itemized costs in connection with each production project. Payment
by IESA in
respect of any such invoice shall be made in US Dollars within 45
days after the
date of IESA's receipt of the PRODUCTION SERVICES Invoice. Atari
will use its
commercial best efforts to use the actual costs incurred as the
basis of the
invoices. To the extent that adjustments from the invoices should
be made prior
to its due date, such adjustments will be communicated to IESA
promptly prior to
such date.
(d) Atari acknowledges that Infogrames Enter
