Exhibit 10.63
CONSULTATION AGREEMENT
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This agreement dated July 8, 2003 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 as reasonably requested by the Chairman
of Company.
2. Term of Agreement
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The term ("Term") of this Agreement will begin on July 1, 2003 and will
remain in effect until December 31, 2003, 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 contract is not to be renewed at
the desire of either party, then at least 30 days notice, prior to the end
of the contract, should be provided to the other party.
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 Ten Thousand Eight Hundred
Thirty-Three Dollars and Thirty-Three Cents ($10,833.33) 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 duties 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 competition with those of Company without
the express written consent 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 or 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, 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 this
agreement replaces and supercedes the agreement (the "Other
Agreement") dated as of July 29, 2002, between Company and
Contractor, 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 PERMITTED 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.
By: /s/ Xxxxx X. Xxxxxx
/s/ Xxx X. Xxxxxx ----------------------------
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Xxx Xxxxxx Its: Sr. V.P., Human Resources
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[ATARI LETTERHEAD]
December 15, 2003
Xxx Xxxxxx
00000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, XX. 00000
RE: Consultant Agreement
Dear Xxx:
Reference is made to the Consultant Agreement between Atari, Inc. ("Atari") and
you dated July 8, 2003. This letter, when fully executed by Atari and you, shall
constitute the further agreement between the parties to extend the Term of the
Consultant Agreement through and including June 30, 2004, instead of December
31, 2003, under the same terms and conditions as set forth in the Consultant
Agreement, it being expressly understood and agreed that except as expressly set
forth herein, the Consultant Agreement is and shall remain in full force and
effect without limitation or exception.
If the foregoing is acceptable to you, please so indicate by signing the
enclosed copy of this letter agreement and returning it to the undersigned.
Very truly yours,
ATARI, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Senior Vice President, Human Resources
Accepted by:
/s/ Xxx Xxxxxx 12/16/03
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Xxx Xxxxxx Date
