EXHIBIT 99.5
CONSULTATION AGREEMENT
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This agreement dated January 3, 2005, with an effective date of January 1, 2005,
is made between Atari, Inc. ("Company"), a Delaware corporation with its
principal place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, and Xxx
Xxxxxx ("Consultant"), an individual residing at 00000 Xxxxxxx Xxxxx Xxxxxxx,
Xxxxxx, XX. 00000.
1. Consultation Services
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Company hereby engages Consultant, and Consultant accepts such engagement,
to provide services ("Services") in accordance with the terms and
conditions set forth in this agreement. Specifically, Contractor shall
provide creative and editorial direction for the projects and game
development undertaken by Company in the same manner and of the same
quality as was provided by Consultant pursuant to the agreement between the
parties dated July 31, 2004 (the "Other Agreement"), and/or as may be
otherwise reasonably requested by the Chairman of Company.
2. Term of Agreement
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The term ("Term") of this Agreement will begin on January 1, 2005, and will
remain in effect until July 31, 2005, unless earlier terminated by either
party upon thirty (30) days' written notice to the other party. The parties
shall negotiate in good faith for a possible extension of the Term of this
Agreement, it being understood and agreed that neither party will be
obligated to so extend the Term. If the Agreement is not to be renewed at
the desire of either party, then whichever party is not interested in
renewing the Agreement shall endeavor to give notice to such other party of
its desire to not renew the Agreement by June 30, 2005.
3. Location of Services
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Consultant will perform Services at the Company's various office locations
and/or at other locations as Company's may reasonably request.
4. Compensation and Expenses
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(a) In consideration of Consultant's Services hereunder, during the Term,
Company shall pay Consultant the sum of Eleven Thousand Six Hundred
Sixty-Six Dollars and Sixty-Six Cents ($11,666.66) per month, payable on
the last day of each month in which Services are rendered (and prorated as
necessary for incomplete months).
(b) In addition, during the Term, Company shall pay Contractor an expense
allowance of One Thousand Dollars ($1,000) per month, and shall pay
directly or reimburse Consultant for, the cost of her reasonable and
pre-approved (by the Chairman of Company) air travel, hotel stays and any
other items of expense incurred in connection with her Services hereunder.
(c) The parties shall negotiate in good faith whether, and in what amount,
Company shall pay a bonus to Consultant hereunder, it being understood and
agreed that this
clause shall not be deemed to obligate Company to establish any bonus pay
for Consultant nor to agree to pay a bonus.
5. Independent Contractor
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Company and Consultant agree that Consultant will act as an independent
contractor in the performance of her Services under this Agreement. Nothing
in this Agreement shall be construed to constitute Consultant as Company's
partner, employee or agent, nor shall either party have authority to bind
the other in any respect, it being intended that Contractor shall remain an
independent contractor solely responsible for her own actions. Accordingly,
Consultant shall be responsible for payment of all taxes, including but not
limited to United States Federal, State and local taxes, arising out of
Consultant's activities in accordance with this Agreement. Company will not
make disability insurance contributions on behalf of Consultant, or obtain
workers' compensation insurance on behalf of Consultant.
6. Assignment and Restrictions
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Neither this Agreement nor any duties or obligations under this Agreement
may be assigned or delegated by Consultant. During the Term of this
Agreement, Contractor may not represent any other organizations whose
interests may be in conflict or competitive with those of Company without
the express written consent of the Chairman of the Company.
7. Notices
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Except as otherwise provided herein, all notices under this Agreement shall
be in writing and shall be given by courier or by registered or certified
mail at the appropriate address shown above or at a substitute address
designated by notice by the party concerned. Each notice to Company shall
be addressed to the attention of Xxxxx Xxxxxxx, Chairman, with a copy to
Xxxx Xxxxxxxx, Senior Vice President and General Counsel. Notices shall be
deemed given when mailed, except that notice of change of address shall be
effective only from the date of its receipt.
8. Intellectual Property Rights
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Atari shall have full and exclusive rights in and to, ownership of and
title to all data, drawings, designs, analyses, graphs, reports, products,
physical property, computer programs, software code, and all inventions,
discoveries and improvements or other items or concepts, whether patentable
or not, which are conceived or reduced to practice during the Term and
arising out of or related to the Services performed hereunder, whether or
not completed during the Term. Consultant agrees to make full and prompt
disclosure and delivery to Company of all such items and, to the extent
that Consultant may be so requested by Company, Consultant shall promptly
execute and deliver to Company assignments of rights to such items in a
form satisfactory to Company. Consultant also agrees to cooperate fully
with Company with respect to
the preparation, prosecution, procurement, issuance, maintenance,
enforcement and defense of patents and/or copyrights worldwide, including
without limitation, applications therefor.
9. Miscellaneous
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(a) Each party hereto, by its signature below, warrants and represents
for itself that it has the full right, power and authority to enter
into this Agreement.
(b) Consultant acknowledges that in the course of rendering Services
to Company hereunder, she will have access to, and/or shall learn about
and/or receive information relating to Company's business, some of
which shall constitute Company's proprietary and/or trade secret
information. All such information shall be and remain Company's
property and Consultant shall at all times maintain the confidentiality
of, and act with due care and protection of, such property.
(c) This Agreement constitutes the full agreement between Company and
Consultant with respect to the rendition of Services hereunder, and no
other additional promises, representations, guarantees or agreements of
any kind shall be valid unless in writing and signed by both parties.
Without limiting the generality of the foregoing, the parties hereto
acknowledge and agree that (i) Consultant shall execute the Company's
Code of Ethics, Standards of Conduct and Confidentiality (the "Code of
Ethics Policy") that all of the members of the Company's Board of
Directors and each of the Company's executives that hold a position of
Vice President or higher, shall be required to execute, and the terms
of this Agreement shall not operate to diminish the full force and
effect of the terms of such Code of Ethics Policy; and (ii) this
Agreement replaces and supercedes the Other Agreement, which Other
Agreement has expired and is of no further force and effect.
(d) THIS AGREEMENT WILL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, EXCLUDING ITS CONFLICT OF LAW RULES. THE VENUE FOR
ANY JUDICIAL PROCEEDING BETWEEN CONSULTANT AND COMPANY WILL EXCLUSIVELY
BE IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK,
STATE OF NEW YORK. CONSULTANT HEREBY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF SUCH COURTS IN CONNECTION WITH ANY SUCH ACTION(S).
CONSULTANT HEREBY AGREES TO ACCEPT SERVICE OF PROCESS PURSUANT TO THE
NOTICE PROVISIONS HEREUNDER AND WAIVES ANY AND ALL OBJECTIONS TO VENUE,
JURISDICTION OR METHOD OF SERVICE OF PROCESS. TO THE FULLEST EXTENT
PREMITTED BY LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY FOR LITIGATION ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
In witness of the foregoing, the parties have caused this agreement to be signed
as of the date first written above.
ATARI, INC.
/s/ Xxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Xxx Xxxxxx Its: Sr. VP Human Resources
Social Security #___________
