Exhibit 10.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") dated November 22, 2005, with
an effective date of August 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 X. Xxxxxx ("Consultant").
1. CONSULTATION SERVICES
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 business development and relationship management with potential and
existing business partners that are located on the West Coast in the same
manner and of the same quality as shall be reasonably requested by the
Chairman of Company.
2. TERM OF AGREEMENT
The term ("Term") of this Agreement will begin on August 1, 2005, and
will remain in effect until July 31, 2006, 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 use its best efforts give notice to such other
party of its desire to not renew the Agreement by June 30, 2006.
3. LOCATION OF SERVICES
Consultant will perform Services at Company's various office locations
and/or at other locations as Company's may reasonably request.
4. COMPENSATION AND EXPENSES
(a) In consideration of Consultant's Services hereunder, during the
Term, Company shall pay Consultant the sum of Six Thousand Two Hundred
Fifty Dollars ($6,250) 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, for services provided in connection with the sale of
the Company's Humongous Entertainment Studio, which included assistance
with formulating and describing the business, products, marketing plan and
strategy for the Humongous properties (as set forth in the offering
memorandum) and diligence meetings with potential purchasers, the Company
shall pay Contractor the aggregate sum of $25,000, to be paid in two
installments as follows (i) $15,000 upon execution of this Agreement, and
(ii) $10,000 on January 1, 2006.
(c) The Company shall also pay directly or reimburse Consultant for,
the cost of her reasonable and pre-approved (by the Chairman of Company)
expenses.
5. INDEPENDENT CONTRACTOR
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
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 are directly competitive with those of Company.
7. NOTICES
Except as otherwise provided herein, all notices under this Agreement
shall be in writing and shall be given by courier, overnight delivery
service, or by registered or certified mail if to the Company at the
Company's address shown above or if to the Consultant, at the address on
record with the Company's Human Resources department, 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 Xxxxxxxx X. Xxxxx, Legal Department. 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
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
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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
(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 Company's Code of Ethics, Standards of
Conduct and Confidentiality (the "Code of Ethics Policy") that
all of the members of Company's Board of Directors and each of
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 all prior agreements between
Company and Consultant, all such agreements having expired and
being 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
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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.
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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 X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
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Xxx X. Xxxxxx Name: Xxxxx X. Xxxxx
Title: EVP & CFO
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