EXHIBIT 10.4
EXECUTION COPY
TERMINATION AND TRANSFER OF ASSETS AGREEMENT
This termination agreement (the
“ Agreement ”) between Infogrames Entertainment
SA, with an address of 1 Place Verrazzano, 69252 Lyon Cedex 09,
France, acting on behalf of itself and its affiliates (other than
Atari, Inc.) (“ IESA ”), Atari Interactive,
Inc., a wholly owned subsidiary of IESA (“ Atari
Interactive ”) and Atari, Inc., with an address of 417
Fifth Avenue, New York, NY 10016 (“ Atari ” and,
collectively with IESA and Atari Interactive, the “
Parties ”) is entered into as of December 4, 2007
and effective as of December 1, 2007 (the “ Effective
Date ”).
WITNESSETH:
WHEREAS, IESA and Atari are
parties to that certain Production Services Agreement, dated as of
March 31, 2006 (the “ PSA ”);
WHEREAS , the
Parties have determined that it is to their mutual benefit to
terminate the PSA and effectively to transfer a significant part
of the Atari Production Department team personnel and related
assets to IESA;
WHEREAS , the Parties wish to
provide for certain transitional matters in connection with such
termination, all in accordance with the terms and conditions of
this Agreement;
NOW THEREFORE , in
consideration of the mutual covenants and agreements herein, the
Parties hereby agree as follows:
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a. |
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“ Other Inter-Company Agreements ” shall
have the meaning provided in Section 8 of this Agreement. |
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b. |
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“ Potential Transition Personnel ” means
certain Atari employees, as identified in Exhibit A ,
that currently perform Production Services and/or related functions
pursuant to the PSA and shall receive offers of employment from
Atari Interactive in accordance with Section 5 of this
Agreement. |
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c. |
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“ Production Services ” means the
“PRODUCTION SERVICES”, as defined in the PSA, with the
exception of Quality Assurance services which will be subject to a
new agreement. |
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d. |
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“ PSA ” shall have the meaning provided in
the recitals to this Agreement. |
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e. |
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“ Purchased Equipment ” means all or
substantially all of the computer, telecommunications, and other
office equipment currently being used by the Transition Personnel
to perform the Production Services, as enumerated in
Exhibit B-1 and B-2 attached hereto (and subject to any
limitations on transfer). |
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f. |
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“ Services Agreement ” shall have the
meaning provided in Section 3 of this |
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Agreement. |
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g. |
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“ Transition Personnel ” shall mean the
Potential Transition Personnel that accept Atari Interactive
employment offers, in accordance with Section 5 of this
Agreement. |
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2. |
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Consideration . (a) In consideration of the
transfer of the portion of the Purchased Equipment set forth on
Exhibit B-1 (fixed assets), IESA shall pay to Atari the agreed
upon current net book value thereof set forth on Exhibit B-1
in the aggregate amount of $10,806.25 in accordance with the terms
of paragraph 9 hereof. |
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(b) In consideration of the transfer of the portion
of the Purchased Equipment set forth on Exhibit B-2
(development assets), IESA shall pay to Atari the mutually
agreeable replacement cost thereof set forth on Exhibit B-2.
in the aggregate amount of $49,969.70 in accordance with the terms
of paragraph 9 hereof. |
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3. |
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Termination . Notwithstanding anything in the PSA to the
contrary (including but not limited to Section 2.01(a) of the
PSA) and except as set forth below, the PSA is, and all of its
provisions hereby are terminated, as of the Effective Date.
Notwithstanding anything in the PSA to the contrary, IESA will pay
any outstanding amounts due prior to the Effective Date in
connection with any Production Services, including but not limited
to any costs, expenses, and other compensation provided in
Section 1.02 of the PSA. For the avoidance of doubt, in
addition to the payment obligations of IESA, the rights and
obligations contained in Sections 2.02, 2.03, 2.04, 2.05 and
2.08 of the PSA shall survive termination thereof. |
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4. |
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Confidentiality . Atari shall promptly return to IESA
any confidential and/or proprietary information of IESA disclosed
to Atari solely pursuant to the PSA and remaining in Atari’s
possession, including, without limitation, any and all interactive
software game related object code, source code, milestone
submissions, audio-visual assets, demos, proposals, and related
product documentation and information (collectively, the “
IESA Proprietary Materials ”). Notwithstanding the
foregoing, Transition Personnel shall be entitled to retain any
IESA Proprietary Materials in their custody or control as of the
Effective Date. |
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5. |
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Personnel Matters . |
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a. |
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Potential Transition Personnel . Atari Interactive
shall, on or about the Effective Date, make offers of employment to
the Potential Transition Personnel. In such offers, Atari
Interactive shall use commercially reasonable efforts to replicate,
in all material respects, reasonably comparable employment terms of
the Potential Transition Personnel (e.g. including but not limited
to salaries, titles, job responsibilities, benefits, vacation
days). |
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b. |
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Transition of Personnel . The Parties shall cooperate in
good faith and shall use commercially reasonable efforts to
facilitate the transition of the Transition Personnel, including
but not limited to: (i) communicating the |
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logistics of such transition to the affected personnel,
(ii) coordinating the logistics of offer letters to Potential
Transition Personnel and resignations from Atari by Transition
Personnel and (iii) adopting reasonably appropriate
resolutions to any contractual or other legal consequences
triggered by the transition process. Upon completion of the
transition, the Transition Personnel are released by Atari from any
non-compete, non-solicitation, confidentiality solely to the extent
that such restrictions will restrict the ability of such personnel
to be employed by Atari Interactive as described herein. In the
event that any Potential Transition Personnel either
(x) ceases to be an employee of Atari prior to the Effective
Date for whatever reason or (y) declines to accept Atari
Interactive’s offer of employment, such individual shall not
be considered to be Transition Personnel. Any liability for
severance, employee benefits (see Section 8 below), visa fees,
etc., if any, related to Transition Personnel, as Atari Interactive
employees only, shall become the sole responsibility and liability
of Atari Interactive following the Effective Date. Except as set
forth below, Atari shall remain responsible for all such costs, if
any, related to Transition Personnel for the period prior to the
Effective Date and for Potential Transition Personnel who do not
become Transition Personnel. Atari Interactive and IESA shall be
responsible for the payment of 50% of the accrued vacation amount
payable to the Transition Personnel with respect to vacation
accrued during their employment with Atari. Such payment shall be
made by Atari Interactive to Atari on the Effective Date or as part
of the next regularly scheduled Atari payroll disbursement,
whichever occurs later. To the extent le |
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