AMENDMENT NUMBER
THREE
TO THE OCTOBER 24, 2008 SALES
AGREEMENT
This amendment
number three (“ Amendment 3 ”), effective as of
June 1, 2009 (the “ Amendment 3 Effective
Date ”), amends the Sales Agreement dated October 24,
2008 between Zoo Publishing, Inc. (“ Zoo ”) and
Atari, Inc. (“ Atari ”), in full force and
effect as of the date hereof (the “ Sales Agreement
”). This Amendment 3, when fully executed, shall
constitute the further understanding between the parties with
respect to the Sales Agreement, as follows:
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Section 1(b) is
deleted and replaced with the following:
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“
Platforms ,” shall include Microsoft Xbox 360
(Xbox360), Nintendo Game Boy Advance System (GBA), Nintendo Dual
Screen System (DS), Nintendo DSi System (DSi), Nintendo Wii System
(Wii), Sony Playstation Portable (PSP), Sony Playstation
2 (PS2), Sony Playstation 3 (PS3) and the Personal Computer, and
any and all derivatives and successors thereof.”
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Notwithstanding
anything to the contrary which may be contained in the Sales
Agreement, including without limitation Sections 2(a) and 6, the
following shall apply from August 1, 2009 until the end of the
Term. :
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All rights
granted to Atari in the Sales Agreement shall be limited to the
following wholesalers and retailers in the Territory: Wal-Mart,
Sam’s Club, Jack of All Games, GameStop and Target (the
“ Atari Accounts ”). The right to
sell the Video Games to the Atari Accounts shall be exclusive to
Atari. Atari shall not sell the Video Games to any other
retailers, wholesalers or customers and Zoo shall have the right to
sell to all wholesalers, retailers and other customers except for
the Atari Accounts. In the event Atari does not pay Zoo
for any purchase order(s) for the Atari Accounts in accordance
with the Agreement and does not render such payment within 10 days
of receipt of Zoo’s subsequent written request for such
payment relating to any purchase order(s) for the Atari
Accounts, and such purchase order(s) do not represent a material
change from the sales forecast as set forth in Paragraph 5 of this
Amendment 3, the Atari Account(s) subject to such request will be
automatically deleted from the definition of Atari Accounts and Zoo
shall be free to sell to such account(s) with no payment
obligations to or by Atari. For clarity, Atari shall no
longer have any right to sell to such
account(s). In addition, on or after November 1,
2009, the parties shall reassess the business relationship,
including the feasibility of adding wholesalers and retailers to
the Atari Accounts.
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Notwithstanding
anything to the contrary which may be contained in the Sales
Agreement, including without limitation, Sections 2(d)-(f), 4(b)
and 6(b), the following shall apply from August 1, 2009 until the
end of the Term:
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Atari shall
receive purchase orders directly from the Atari
Accounts. Atari shall have no obligation with respect to
any purchase order that is not made to Atari. Without
limiting the generality of the foregoing, Atari may w
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