GT INTERACTIVE UK SETTLEMENT OF INDEBTEDNESS AGREEMENT
AGREEMENT, dated as of September 15, 2005, between Atari UK (f/k/a
Infogrames UK) (AUK") and Infogrames Entertainment SA and all of its
subsidiaries (collectively, "IE") (AUK and IE are referred to herein separately,
and collectively as "IESA"), on one hand, both having an address of 0, xxxxx
Xxxxxxxxxx 00000 Xxxx, Xxxxx 00 Xxxxxx and Atari, Inc. ("Company"), on the
other, having an address of 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the
"Agreement").
WHEREAS, in December 1999, IESA acquired a controlling interest in
Company and its wholly-owned subsidiaries. Following this acquisition, AUK, a
wholly-owned subsidiary of IESA, had paid certain expenses on behalf of GT
Interactive UK ("GTUK"), a subsidiary of Company, the operations of which were
discontinued in or about March 2000. The expense payments include amounts for
various legal functions, settlements, account fees and taxes, trade payables and
accrued liabilities;
WHEREAS, AUK has asserted, or could assert, that Company is indebted to
AUK for payments, liabilities and obligations based on any and all matters or
circumstances arising or occurring at any time prior to or as of the date hereof
(the "GTUK Indebtedness"); and
WHEREAS, by this Agreement, IESA and Company hereby intend to resolve
all matters of, concerning or related to the GTUK Indebtedness.
NOW, THEREFORE, in consideration of the foregoing, the Fee and of the
mutual promises set forth herein, it is hereby agreed as follows:
1. In full satisfaction of the GTUK Indebtedness, promptly upon the
full execution hereof, Company shall pay AUK (or its designee) 1,263,518 shares
of Company's common stock totaling in value 892,525 British pounds, each share
priced at $1.30 (the "Fee") in full and final settlement and payment of the GTUK
Indebtedness.
2. IESAA acknowledges, agrees and understands that the entire
consideration for the releases and waivers given in this Agreement is that
consideration set forth in paragraph 1 above; that said consideration is being
given solely for the purpose of settling amounts due arising out of expense
reimbursements or other amounts due and owing to AUK from Company. Any and all
tax refunds or credits associated with GTUK (including the payment of the GTUK
Indebtedness) shall be solely the property of, and inure solely to the benefit
of, Company.
3. (a) IESA does hereby relieve, release and forever discharge Company
and its predecessors, successors, representatives, employees, officers,
directors (including, without limitation, former employees, officers and
directors), shareholders, agents, employees, administrators, assigns and all
affiliated, parent and subsidiary corporations, and each of them, of and from
any and all claims, debts, liabilities, demands, obligations, promises, acts,
agreements, costs, expenses (including, but not limited to, attorneys' fees),
damages, actions and causes of action of whatsoever kind or nature, whether now
known or unknown, based on, arising out of, or in
connection with anything whatsoever done, omitted or suffered to be done at any
time relating to, arising from, or in connection with all claims relating
to, the GTUK Indebtedness, any other expense reimbursement made by IESA in
connection with GTUK and any other amounts due to IESA in connection with GTUK.
IESA hereby expressly, knowingly, and intentionally waives all rights and
protections afforded in connection with the matters hereby released by the terms
and provisions of California Civil Code section 1542 and by any and all similar
laws of and for any other state of the United States and all foreign
governments. California Civil Code section 1542 states that:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
In connection with such waiver, IESA hereby acknowledges that it hereafter may
discover claims, obligations, rights, causes of action, claims for relief,
liabilities, and facts, or any of them, in addition to or different from those
that it now knows or believes to be in existence, accrued, or true with respect
to the matters hereby released. Nevertheless, it is the intention of each party,
through this release and with the independent advice of counsel or the
opportunity to receive such advice, to fully, finally, and forever to settle and
release all such claims, obligations, rights, causes of action, claims for
relief, liabilities, and damages that heretofore have existed, now exist, or
hereafter may exist in connection with the matters hereby released, including
those that could have been filed.
(b) Each of the parties hereto represents, warrants, and agrees as
follows:
(i) Each party has received independent legal advice from its
attorneys, with respect to the advisability of making the settlement of
indebtedness provided for herein, and with respect to the advisability
of executing this Agreement;
(ii) No party (nor any officer, agent, employee, representative, or
attorney of or for any party), has made any statement or representation
to any other party regarding any fact relied upon by the other party in
entering into this Agreement, and each party does not rely upon any
statement, representation or promise of any other party (or of any
officer, agent, employee representative or alternate for the other
party), in executing this Agreement except as expressly stated herein;
(iii) Each party has made such investigation of the facts and the
law pertaining to this Agreement and of all the matters pertaining
hereto as it deems necessary; and
(iv) Each of the persons executing this Agreement is empowered to
do so.
(c) Each party hereto represents and warrants to the other party that
it is the sole and lawful owner of all right, title and interest in and to
every matter and thing released
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herein, and that it has not heretofore assigned or transferred, or
purported to assign or transfer, to any person or entity any claims or
other matters released herein.
4. This Agreement shall inure to the benefit of, and be binding upon,
the respective assigns, subsidiaries and successors-in-interests to and of each
party hereto.
5. This Agreement sets forth the entire understanding between IESA and
Company with respect to the subject matter hereof, and no amendment to or
modification, waiver, termination or discharge of this agreement or any
provision thereof shall be binding upon IESA or Company unless confirmed by a
written instrument specifically referring to this Agreement which is signed by
an authorized signatory of each party. No waiver of any provision of or default
under this Agreement shall affect IESA's or Company's right, as the case may be,
thereafter to enforce such provision or to exercise any right or remedy in the
event of any other default, whether or not similar.
6. THIS AGREEMENT IS ENTERED INTO IN THE STATE OF NEW YORK AND SHALL BE
CONSTRUED ONLY IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS ENTERED INTO AND TO BE FULLY PERFORMED THEREIN (WITHOUT GIVING
EFFECT TO ANY CONFLICTS OF LAW PRINCIPLES UNDER NEW YORK LAW), AND THE COURTS OF
THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY (MANHATTAN) ARE HEREBY GRANTED
EXCLUSIVE JURISDICTION WITH RESPECT TO ANY SUITS ARISING OUT OF OR WITH RESPECT
TO THIS AGREEMENT.
7. This Agreement shall not be construed against either party as the
drafter, it being agreed that this Agreement has been drafted jointly by the
parties and may be executed in one or more counterparts, including by facsimile,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement the date
and year first above written.
Atari, Inc.
By:___________________________
Name:
Title:
ACCEPTED AND AGREED TO:
Infogrames Entertainment SA
By:___________________________
Name:
Title:
Atari UK
By:___________________________
Name:
Title:
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IN WITNESS WHEREOF, the parties have executed this Agreement the date
and year first above written.
Atari, Inc.
By:___________________________
Name:
Title:
ACCEPTED AND AGREED TO:
Infogrames Entertainment SA
By:___________________________
Name:
Title:
Atari UK
By:___________________________
Name:
Title:
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