EX-10.3



 






Exhibit 10.3




General Intellectual Property and Proprietary Rights (Other Than Trademark Rights) License

Of The Test Drive Franchise




November 8, 2007



The following terms and conditions establish the agreement (the “License”) between Infogrames
Entertainment S.A. (“Licensee”) and Atari, Inc. (“Licensor”) with respect to the Franchise (as
defined below) until such time as superseded by the long-form agreement with respect to the subject
matter hereof that is contemplated by the parties.




	 	 	 
	1. Franchise:

	 	“Franchise” collectively shall mean the series
of interactive computer and video games known
as “Test Drive” and “Test Drive Unlimited”
(including, but not limited to, all written
expressions of the Licensor-published retail
and other versions of such games, expansion
packs, add-on products, and manuals,
including, without limitation, as the
foregoing are set forth on Exhibit A hereto
(the Catalogue Titles”), subject to any
license limitations or restrictions thereon
(which shall be handled in accordance with
Section 7 of this License), and all
intellectual property and proprietary rights
owned or controlled by Licensor therein,
including, without limitation, all
programmers’ notes and development tools used
to develop any such games, source code and
object code of such games, copyrights, moral
rights, inventions, patents, patent
applications, trade secrets, design rights,
domain names, logos, trademarks, service
marks, and trade names owned or controlled by
Licensor, and specifically including, but not
limited to, those rights and elements
(trademark registrations and applications,
copyright registrations and applications, and
domain names,) which are listed on Exhibit A1
hereto. Exhibit A includes Exhibit A1 and
Exhibit A2. Exhibit A1 includes all of the
elements of the Franchise that are owned or
controlled by Licensor. All of the elements
of the Franchise not owned or controlled by
Licensor are listed in Exhibit A2.
	 
	 	 
	2. Licensed Products:

	 	The products set forth in Exhibit B hereto
	 
	 	 
	3. Territory:

	 	Worldwide
	 
	 	 
	4. Effective Date:

	 	November 8, 2007
	 
	 	 
	5. Term:

	 	“Term” shall mean the seven (7) year period
commencing on the Effective Date. Licensee’s
rights are exclusive during the Term. Upon
the expiration or earlier termination of the
Term, Licensee shall have a non-exclusive, six
(6) month sell-off period. Notwithstanding
the fact that Licensee’s rights are exclusive
during the Term, commencing on the sixth
(6th) anniversary of the Effective
Date, Licensor may meet with third parties
that desire to exploit Licensed Products
incorporating, based on, or otherwise derived
from any element(s) of the Franchise and grant
such third parties licenses therein; provided
that Licensor shall not grant any such












 



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	 	third parties a right or license to publish, promote, market,
advertise, distribute, and otherwise exploit (other than the
right to develop or manufacture) Licensed Products
incorporating, based on, or otherwise derived from any
element(s) of the Franchise prior to the expiration or earlier
termination of the Term. Notwithstanding the foregoing,
commencing on the sixth (6th) anniversary of the
Effective Date, Licensor may take all other actions necessary to
be in a position to publish, promote, market, advertise,
distribute, and otherwise exploit the Franchise upon the
expiration or earlier termination of the Term provided that all
such actions must be conducted on a confidential, non-public
basis and kept out of the public domain.
	 
	 	 
	6. Nature of license:

	 	Exclusive
	 
	 	 
	7. License

	 	Subject to receipt by Licensor of the Royalty
Advance described below, and subject to the
exceptions and restrictions expressly set
forth in this License, Licensor hereby grants
to Licensee the exclusive (even as to
Licensor) right and license, under Licensor’s
intellectual and proprietary rights other
than Licensor’s trademark rights, to create,
develop, produce, publish, promote, market,
advertise, manufacture, distribute, and
otherwise exploit, during the Term, Licensed
Products incorporating, based on, or
otherwise derived from any element(s) of the
Franchise. With respect to any third-party
properties included in games or otherwise
that are part of the Franchise (including, by
way of illustration but not limited to,
vehicle names and likenesses, music, actor
name and likenesses, and third party software
tools) that are listed on Exhibit A2,
Licensee acknowledges that such properties
are not part of the license grant hereunder.
Licensor shall transfer or sublicense all
licenses executed with such third parties
which are transferable or sublicensable
provided that any such transfer or sublicense
does not impair Licensor’s ability to publish
any of the Catalog Titles. However, Licensor
shall not object to or prevent Licensee from
licensing such materials from any such third
parties (including, but not limited to, the
waiving of exclusivity rights, if any) and
shall, at Licensee’s request, offer
reasonable assistance in facilitating any
such third party licensing (including, but
not limited to, offering introductions,
contacts, and copies of third party contracts
where not prohibited by confidentiality
provisions). Additionally, Licensor shall
provide a copy of any other documentation,
including, but not limited to, relevant
correspondences and file memorandums, bills,
notices of breaches, disputes, that are
material to the License in order to inform
Licensee of the status of such contractual
relationships between Licensor and such third
parties.
	 
	 	 
	 

	 	The parties agree that the rights granted to Licensee hereunder,
including, without limitation, those rights granted in this
Section 7, are rights in “intellectual property” within the
scope of Section 101 (or its successors) of the United States
Bankruptcy Code (“Bankruptcy Code”). Licensee shall have the
rights set forth herein












 



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	 	with respect to the Franchise when and as developed or created.
In addition, Licensee, as a licensee of intellectual property
rights hereunder, shall have and may fully exercise all rights
available to a licensee under the Bankruptcy Code, including,
without limitation, under Section 365(n) or its successors. In
the event of a case under the Bankruptcy Code involving
Licensor, Licensee shall have the right to obtain (and Licensor
or any trustee for Licensor or its assets shall, at Licensee’s
written request, deliver to Licensee ) a copy of all embodiments
(including, without limitation, any work in progress) of any
intellectual property rights granted hereunder, including,
without limitation, embodiments of the Franchise or any other
intellectual property necessary or desirable for Licensee to use
or exploit the Franchise or any Licensed Product or to exercise
its rights hereunder.
	 
	 	 
	 

	 	The Licensed Products created by or on behalf of Licensee or its
sublicensees shall include a proper trademark and/or copyright
notices indicating Licensor’s ownership in the elements and
rights licensed to Licensee under this License and contained in
any such Licensed Products in a form to be provided by Licensor,
provided that the failure to include any such notice shall not
be deemed to be a material breach of this License by Licensee
where Licensee’s endeavors to promptly and prospectively correct
such error.
	 
	 	 
	 

	 	No later than five (5) days after the Effective Date, Licensor
shall deliver or otherwise make available to Licensee all of the
items set forth on Exhibit D and Exhibit D1
hereto.
	 
	 	 
	8. Reserved Rights:

	 	Except for the Licensed Products created by or on behalf of Licensee,
Licensor hereby reserves the sole and exclusive ownership of the Franchise. Subject to the
distribution agreement referenced below in Section 15 and notwithstanding the exclusive
license grant described in Section 7, Licensor reserves the exclusive right to continue to
distribute during the Term all of the Catalog Titles released prior to the Effective Date.
This license is also subject to the existing licenses specified in Exhibit C hereto and to
existing licenses relating to the Franchise granted by Licensee or its affiliates (other than
Licensor and Licensor’s subsidiaries). All rights not expressly granted in this License are
reserved by Licensor. As between Licensor and Licensee, Licensee shall be sole and exclusive
owner of the Licensed Products created by or on behalf of Licensee excluding those elements
or rights contained therein that are (x) in a Catalog Title and owned by Licensor or a third
party or (y) set forth in Exhibit A. Except for Licensee’s ownership of the Licensed
Products created by or on behalf of Licensee: (a) nothing contained in this License shall be
construed as an assignment or grant to Licensee of any ownership right in or to the
Franchise, or any other right, title, or interest in or to the Franchise, except as expressly
set forth herein; (b) all uses of the Franchise shall inure to the benefit of Licensor; and
(c) Licensee recognizes the value of the good will associated with the Franchise and
acknowledges that the Franchise,












 



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	 	and all rights therein and the good will pertaining thereto,
belong exclusively to Licensor.
	 
	9. Wireless Platform

	 	Notwithstanding the license grant described in Section 7 above, Licensee’s
right with respect to Licensed Products playable on wireless devices, including, but not
limited to, personal digital assistants and mobile, cell and satellite phones (the “Wireless
Platform”) is limited, during the two (2) year period following the Effective Date, to the
right to sublicense such right to an appropriate and qualified third party wireless game
publisher on reasonable market terms. Licensee shall enter into such sublicense and cause
the first Wireless Platform Licensed Product to be released in all major markets (i.e.,
United States and the major countries of the European Union) not later than six months after
release of TDU2 (as hereinafter defined). Failure by Licensee to timely satisfy this
commitment shall result in a reversion to Licensor of all rights with respect to Licensed
Products on the Wireless Platform.
	 
	 	 
	 

	 	After the expiration of the two year period commencing on the
Effective Date, Licensee may, with respect to Licensed Products
playable on the Wireless Platform, either sublicense its right
to an appropriate and qualified third party wireless game
publisher on reasonable market terms and with no obligation as
to the markets of release, or publish itself, or together with
an appropriate and qualified third party partner, such Licensed
Products.
	 
	 	 
	10. Advance Royalty:

	 	Licensee shall pay to Licensor a non-refundable
fully recoupable advance against Royalties
otherwise payable hereunder in the amount of One
Million Dollars (USD) ($1,000,000.00) (the
“Advance Royalty”). The Advance Royalty shall be
paid to Licensor within 5 (five) business days
after signature of this License. The Advance
Royalty shall accrue interest at a yearly rate
of fifteen percent (15%) throughout the Term
(the Advance Royalty, as increased by interest,
compounded annually, the “Cumulative Advance
Amount”). The Cumulative Advance Amount shall
be fully recoupable by Licensee from Royalties
earned by and otherwise due to Licensor as per
this License. Notwithstanding anything to the
contrary set forth herein, the Licensor shall be
required to repay any unrecouped portion of the
Cumulative Advance Payment as part of the
Liquidated Damages (as such term is defined in
Section 20).
	 
	 	 
	11. Royalties:

	 	Licensee shall pay Licensor a base royalty rate
of 1.8% of Net Revenue actually received by
Licensee from the sale of the Licensed Products
created by or on behalf of Licensee.
	 
	 	 
	 

	 	Notwithstanding the foregoing, Licensee shall pay to Licensor,
in lieu of the foregoing royalties, a royalty on Net Revenue
actually received by Licensee from the exploitation of Licensed
Products on the Wireless Platform created by or on behalf of its
sublicensees in the amount of ten percent (10%) of Net Revenue.












 



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	12. Net Revenue:

	 	All revenue received in connection with
Licensed Products created by or on behalf of
Licensee or its sublicensees less: (a)
Chargebacks (as defined below) incurred by
Licensee; (b) freight, taxes, insurance,
duties, customs and brokerage fees incurred
by Licensee; and (c) in the case of
sublicenseing, agency fees, IP registration
and protection and enforcement costs.
“Chargebacks” are defined as price
protections, returns, co-op, MDF and other
customary deductions and discounts, taken or
granted by Licensee to its customers
specifically in connection with Licensed
Products created by or on behalf of Licensee
or its sublicensees, plus, except with
respect to sublicensing revenue, an
additional three percent (3%) of gross
receipts deducted in order to reflect
retailer-level deductions taken for early
payment, volume discounts, and similar items,
but excluding marketing expenses.
	 
	 	 
	13. Performance Clause:

	 	(A) Release Commitment. Licensee shall
develop (and/or have developed) and
commercially release (and/or have
commercially released) in all major markets
(i.e., United States and the major countries
of the European Union): (i) one (1)
interactive software game based on the
Franchise (“TDU2”) for at least one Major
Platform (as defined below) and the PC
Platform within twenty (20) months of the
Effective Date; and (ii) at least one
additional interactive software game based on
the Franchise (“TDU3”) for at least one Major
Platform and the PC Platform within 60 months
of the Effective Date. A “Major Platform”
shall mean Xbox 360, PS3, Wii, or the
successors to any of the foregoing. Each of
the two (2) above-mentioned interactive
software games satisfying the minimum
commitment must be a new stand-alone game and
not a port, expansion pack or episodic
content.
	 
	 	 
	 

	 	(B) Distribution Commitment. Licensee shall make and
maintain commercially reasonable arrangements for the
manufacture, distribution, sale and timely delivery of
sufficient quantities of each Licensed Product to distributors
and retailers in all major markets (i.e., United States and the


major countries of the European Union) to meet the demands of
the marketplace, and its obligations to distributors and
retailers consistent with commercially sound business practices.
	 
	14. Premiums

	 	No license is granted for the manufacture, sale or distribution of
Licensed Products whose purpose is to be used exclusively as promotional
items, in “advergaming,” or as “Premiums,” meaning any Licensed Products
used exclusively for the purposes of increasing the sale of another item;
promoting or publicizing any product or service; fundraising or as
giveaways to motivate a sales force, merchant, consumer or any other person
to perform a specific act; or acting as a tie-in.












 



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	15. Distribution
of Catalog Titles:

	 	For the duration of the present License,
Licensor hereby grants to Licensee the exclusive right to distribute
throughout the Territory (excluding the US, Canada, Mexico and their
possessions) all the Catalog Titles. The terms and conditions of such
distribution by Licensee will be the same as the existing ones in the
distribution agreement dated December 16, 1999 between Licensee and
Licensor (the “Distribution Agreement”). Nothing in this License shall
affect the rights and obligations of Licensor and Licensee under the
Distribution Agreement, the terms of which shall remain in full force and
effect.
	 
	 	 
	16. Warranties:

	 	Licensor warrants and represents that:
	 
	 

	 	- it has power and authority to enter into this License and that
it has not entered and shall not enter into any other agreement
that restricts or impairs, or could restrict or impair its
ability to carry out in whole or in part the provisions of this
License and the rights granted herein;
	 
	 

	 	- it is the sole and unconditional owner of all right, title and
interest in and to those elements and rights of the Franchise
listed on Exhibit A1;
	 
	 

	 	- except as otherwise expressly set forth on Exhibit A2, it was
granted all the exploitation rights necessary to use those
elements and rights of the Franchise in the manner in which the
Franchise was exploited (other than by Licensee or Eden Studios)
immediately prior to the Effective Date and has the authority to
make the grant specified in Section 7 hereof;
	 
	 

	 	- except as otherwise expressly set forth on Exhibit A2, it has
obtained all the necessary consents to make the grant of rights
covered by this License including, without limitation, from any
persons performing services or granting rights in connection with
the Franchise and that Licensee shall not be responsible for any
report, charge, fee, royalty or any other payment to any person
or entity in connection with the exploitation of the rights
granted hereunder;
	 
	 

	 	- the granting of the rights granted hereunder does not and will
not violate or otherwise constitute a material breach of the
terms and conditions of any other agreement entered into by
Licensor that has not otherwise been waived;
	 
	 

	 	- to Licensor’s Knowledge (as hereinafter defined), other than as
set forth on Exhibit A1, there are no current or threatened
claims, lawsuits, proceedings and/or other judicial or government
actions anywhere in the world concerning the scope, validity,
enforceability, ownership, infringement, misappropriation, use or
misuse of any of the rights and/or licenses granted to Licensee
under this License. “Licensor’s Knowledge” means the actual
knowledge of Licensor after reasonable inquiry of the employees
of Licensor at the level of vice president or higher, including,
without limitation, Licensor’s officers;
	 
	 

	 	- the exercise by Licensee or any of its affiliates,
subsidiaries, directors, representatives, employees and agents of
the rights granted hereunder does not and shall not infringe,
misappropriate or otherwise violate any third party’s
intellectual property or proprietary rights;












 



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	 	- it shall not act, nor cause any third party to act, in such
manner as to disturb or interrupt, directly or indirectly, the
quiet enjoyment by Licensee of the rights granted in this
License;
	 
	 

	 	- the information set forth on Exhibit A1 (other than
those elements owned or controlled as of the date hereof by
Licensee or Eden Studios) and Exhibit C (other than those
existing licenses relating to the Franchise granted by Licensee
or its affiliates (other than Licensor and Licensor’s
subsidiaries)) is complete and accurate in all material respects;
	 
	 

	 	- to Licensor’s Knowledge, the information set forth on
Exhibit A2 (other than those elements owned as of the
date hereof by Licensee or its affiliates (other than Licensor or
Licensor’s subsidiaries)) and Exhibit D1 is complete and
accurate in all material respects;
	 
	 

	 	- Licensor has paid all advances, royalties and other sums due to
any third party pursuant to any agreement that Licensor is
transferring to Licensee in accordance with the above provisions
of Section 7;
	 
	 

	 	- it shall indemnify and hold harmless Licensee, its affiliates,
subsidiaries, assignees, directors, representatives, employees
and agents, from and against any claim(s) of any third party
whatsoever arising from a breach or alleged breach of any of
Licensor’s representations or warranties hereunder; and
	 
	 

	 	- it shall, at its own expense, proceed with the filings with the
appropriate governmental bodies and bear the costs of
registration and renewals of protection of the trademarks and
copyrights included in the Franchise in such territories where
any such trademarks and copyrights are registered (or where an
application has been filed for such trademarks and copyrights) by
Licensor as of the Effective Date.
	 
	 

	 	Licensee represents and warrants that:
	 
	 

	 	- it has power and authority to enter into this License and that
it has not entered and shall not enter into any other agreement
that restricts or impairs, or could restrict or impair its
ability to carry out in whole or in part the provisions of this
License and the rights granted herein;
	 
	 

	 	- it shall not infringe or misappropriate Licensor’s intellectual
property or proprietary rights in the Franchise or knowingly aid
or abet anyone else in doing so;
	 
	 

	 	- it shall defend, indemnify and hold harmless Licensor, its
affiliates, subsidiaries, assignees, directors, representatives,
employees and agents, from and against any claim(s) of any third
party whatsoever arising from (i) a breach or alleged breach of
any of Licensee’s representations or warranties hereunder; or
(ii) infringement of such third-party’s intellectual property
rights arising from any Licensed Product created by or on behalf
of Licensee or any advertising or promotional materials used by
Licensee in connection therewith (except to the extent that such
infringement arises from any of those elements or rights of the
Franchise listed on Exhibit A1 or any part of any such elements);
or (iii) failure by Licensee to comply with any applicable law or
regulation in the exercise by Licensee of the rights granted
hereunder.












 



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	 	The representations and warranties of Licensor and Licensee
shall survive any termination or expiration of this License.
	 
	 	 
	17. Reporting; Reserve,
Payment:

	 	Licensee shall provide a detailed
statement of royalties and shall pay to Licensor all Royalties due
within forty-five (45) days after the end of each calendar quarter
during the Term. Licensee may establish a Reserve Basket but in no
event shall the Reserve Basket exceed Twenty five Percent (25%) of the
Royalty otherwise due to Licensor during each calendar quarter.
Reserves shall be withheld every quarter and liquidated within the
next 2 (two) subsequent calendar quarters. Licensor shall upon
reasonable notice to Licensee, and in any event not less than thirty
(30) days notice, have all customary audit rights, including, but not
limited to, the right to access all records relating to the
calculation of Royalties hereunder, at Licensee’s headquarters at any
reasonable time during or within two years of the conclusion of the
Term.
	 
	 	 
	18. Governing law and venue:

	 	Any controversy of claim arising out of
or relating to the construction or
applications of any term, provision, or
condition of this License shall comply
with and be governed in accordance with
the laws of the state of New York as
applicable to contracts made and
performed entirely within the state of
New York and shall be settled by final
and binding arbitration, in New York,
New York, under the Commercial
Arbitration Rules of the American
Arbitration Association. The number of
arbitrators shall be one. The cost of
arbitration shall be borne by the losing
party or in such proportion as the
arbitrator shall decide. Judgment on
the award rendered by the arbitrator may
be entered in any court in the world
having jurisdiction.
	 
	 	 
	19. Confidentiality:

	 	Each party acknowledges that
Confidential Information (as defined
below) may be disclosed to the other
party during the course of this License.
Each party agrees that it will take
reasonable steps, at least substantially
equivalent to the steps it takes to
protect its own proprietary information,
during the term of the License, and for
a period of three years following
expiration or termination of the
License, to prevent the duplication or
disclosure of Confidential Information
of the other party, other than by or to
its employees or agents who must have
access to such Confidential Information
to perform such party’s obligations
hereunder and/or to exploit such party’s
rights granted to it hereunder, who will
each agree to comply with this section.
	 
	 	 
	 

	 	“Confidential Information” means any information relating to or
disclosed in the course of negotiating and implementing the
License, which is, or should be reasonably understood to be,
confidential or proprietary to the disclosing party, including,
but not limited to, the content of negotiations between the
parties, the material terms of the License, information about
source code, product designs, sales, cost and other unpublished
financial information, product and business plans, projections
and marketing data. “Confidential Information”












 



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	 	shall not include information (a) already lawfully known to or
independently developed by the receiving party, (b) disclosed in
published materials, (c) generally known to the public, (d)
lawfully obtained from any third party not bound by a
confidentiality obligation to the disclosing party or (e)
required or reasonably advised to be disclosed by law.
	 
	20. License Termination:

	 	In the event that Licensee (i) fails to timely satisfy the release
commitments set forth in Section 13(A) of this License; or (ii) fails to make timely payment
of the Advance Royalty to Licensor as set forth in Section 10 of this License; or (iii) fails
to pay Royalties to Licensor on a timely basis as set forth in Section 17 of this License;
and any such breach set forth in the immediately preceding clauses (i), (ii) and/or (iii) is
not cured within thirty (30) days of the receipt by Licensee of written notice thereof, then
the Licensor shall have the right to terminate this License, in whole or in part, immediately
upon a second written notice to the Licensee, in addition to any other rights or remedies
Licensor may have. In the event that Licensor materially breaches this License, and such
breach is not cured within thirty (30) days of the receipt by Licensor of written notice
thereof, then Licensee shall have the right to terminate this License, in whole or in part,
immediately upon a second written notice to Licensor, in addition to any other rights or
remedies Licensee may have.
	 
	 	 
	

	 	Upon Licensee’s termination of the License in accordance with
the immediately preceding paragraph, or in the event Licensee
loses the benefit of the license granted hereunder or such
license is otherwise terminated for any reason other than for
the reasons in clauses (i), (ii) and/or (iii) set forth in the
immediately preceding paragraph, the Licensor and Licensee agree
to the following liquidated damages which Licensor shall pay to
Licensee. The liquidated damages will be the sum of (a) the
Cumulative Advance Amount then outstanding which has not been
recouped by Licensee in accordance with Section 10, (b) all
costs and expenses incurred by Licensee, including, but not
limited to, research and development costs, in connection with
the development of TDU2 and TDU3 which has not been amortized by
Licensee, and (c) any indemnity which Licensee shall be entitled
to under Section 16 (collectively, the “Liquidated Damages”).
Licensee and Licensor acknowledge that the Liquidated Damages
are reasonable under the circumstances existing on the Effective
Date and reasonably approximate the amount of damages that would
be sustained by Licensee as a consequence of Licensor’s material
breach of this License and that it is impracticable or extremely
difficult to determine the actual damages that would be
sustained by Licensee as a result of Licensor’s material breach.
The Liquidated Damage amounts provided for herein are not
intended to constitute a forfeiture or penalty, but are instead
intended to reflect Licensor’s and Licensee’s best estimate of
Licensee’s actual damages.












 



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	 	The terms and conditions of the following Sections will survive
Licensor’s termination of this License or the rejection of the
License in a Licensor bankruptcy case under the Bankruptcy Code:
	 

	 	Sections 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and
30. In addition, the termination or expiration of this
Agreement shall not relieve either party of any liability that
accrued prior to such termination or expiration.
	 
	21. Grant of Security Interest:

	 	 As security for the payment and
performance of Licensor’s obligations
under the License, including, but not
limited to, the payment of the
Liquidated Damages (collectively, the
“Licensor Obligations”), Licensor has
granted Licensee a second priority
security interest in accordance with
the terms and conditions of the
Trademark License of Test Drive
Franchise between Licensor and
Licensee of even date herewith.
	 
	 	 
	22. Limitation of Liability:

	 	EXCEPT TO THE EXTENT (i) THAT A PARTY
IS OBLIGATED TO INDEMNIFY THE OTHER
PARTY FOR THIRD PARTY CLAIMS OF
INTELLECTUAL PROPERTY INFRINGEMENT OR
MISAPPROPRIATION, OR (ii) LICENSOR IS
OBLIGATED FOR LIQUIDATED DAMAGES (AS
SUCH TERM IS DEFINED IN SECTION 20),
IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR INCIDENTAL,
SPECIAL OR CONSEQUENTIAL OR PUNITIVE
DAMAGES OF ANY KIND, OR FOR THE LOSS
OF ANTICIPATED PROFITS, EVEN IF
NOTIFIED OF THE POSSIBILITY OF SUCH
DAMAGES AND REGARDLESS OF WHETHER ANY
REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE.
	 
	 	 
	23. Entire Agreement:

	 	This License constitutes the entire
agreement between the parties with
respect to the subject matter hereof.
Any modification of this License must
be in writing and signed by both
parties hereto.
	 
	 	 
	24. Assignment & Sublicensing:

	 	Licensee shall not assign any or all
of the rights granted hereunder
without the written approval of
Licensor (which approval Licensor
shall not unreasonably withhold,
delay or condition), except that
Licensee may, upon written notice to
Licensor, assign or sublicense its
rights and duties under this
Agreement to any corporate entity
that controls, is controlled by or is
under the common control of Licensee.
Except as set forth above, Licensee
shall not have the right to
sublicense all or any of the rights
granted hereunder without the written
approval of Licensor (which approval
Licensor shall not unreasonably
withhold, delay or condition), except
that (a) Licensee shall have the
right to sublicense the right to
publish and distribute the Licensed
Products on the Wireless Platform as
set forth in Section 9 and (b)
Licensee may grant third parties the
right to exercise the rights granted
to Licensee hereunder for the
development, manufacturing,
distribution, publishing,
advertising, marketing and/or sale of
the Licensed Products; provided,
however,












 



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	 	if any such grant constitutes a de facto assignment, Licensee
must obtain Licensor’s approval of such grant in accordance with
the foregoing provisions of this Section; provided further that
Licensee shall not grant any sublicenses to any third party to
develop Licensed Products based on the Franchise for such third
party’s benefit as publisher; and provided further that Licensee
shall not be relieved of its responsibility hereunder and any
such third party shall be bound by the terms of this License in
performing its obligations. Any assignment or sublicense by
Licensee hereunder shall not relieve Licensee of its obligations
to Licensor. This License shall be binding upon and shall inure
to the benefit of the respective successors and assigns of each
party.
	 
	 	 
	25. Binding Agreement:

	 	The present License is intended to create a
legally binding relationship between the
parties.
	 
	 	 
	26. Interpretation:

	 	Section headings are included in this License
solely for convenience and are not intended to
affect interpretation of any provision of this
License.
	 
	 	 
	27. Waiver, Remedies:

	 	No waiver by any party of any term or
condition of this License shall be construed
to be a waiver of such term or condition in
the future, or of any preceding or subsequent
breach of the same or any other term or
condition of this License or any other
agreement, nor shall any such waiver be
binding unless written. All remedies, rights,
undertakings, obligations and agreements
contained in this License shall be cumulative,
and none of them shall be in limitation of any
other remedy, right, undertaking, obligation
or agreement of any party to this License.
	 
	 	 
	28. Severability:

	 	Any provision of this License that is found by
a court of competent jurisdiction to be void,
invalid or unenforceable shall be curtailed
and limited only to the extent necessary to
bring such provision within the requirements
of the law, and such finding and curtailment
shall not affect the validity or
enforceability of any other provision of this
License.
	 
	29. Revival and Reinstatement
of the Licensor Obligations:

	 	If the incurrence or payment of Licensor Obligations by the
Licensor or the transfer to the Licensee of any property should for any reason subsequently
be declared to be void or voidable under any state or federal law relating to creditors’
rights, including provisions of the Bankruptcy Code relating to fraudulent conveyances,
preferences, or other voidable or recoverable payments of money or transfers of property
(collectively, a “Voidable Transfer”), and if the Licensee is required to repay or restore,
in whole or in part, any such Voidable Transfer, or elects to do so upon the reasonable
advice of its counsel, then, as to any such Voidable Transfer, or the amount thereof that the
Licensee is required or elects to repay or restore, and as to all reasonable costs, expenses,
and attorneys fees of the Licensee related












 



- 12 -


	 	 	 
	 

	 	thereto, the liability of the Licensor and the grant of security
under the Trademark License of Test Drive Franchise between
Licensor and Licensee of even date herewith, automatically shall
be revived, reinstated, and restored and shall exist as though
such Voidable Transfer had never been made.
	 
	 	 
	30. Notices:

	 	All notices, statements and other documents, and all approvals or consents that any
party is required or desires to give to any other party, shall be given in writing and shall
be served in person, by express mail, by certified mail, by overnight delivery, or by
facsimile at the respective addresses set forth below, or at such other addresses as may be
designated by such party.
	 
	 	 
	 

	 	If to Licensor
	 
	 	 
	 

	 	     Atari, Inc.
	 

	 	     417 Fifth Avenue
	 

	 	     New York, New York 10016
	 

	 	     Attention: Legal Affairs
	 

	 	     Fax: 212.726.4214
	 
	 	 
	 

	 	With a copy to:
	 
	 	 
	 

	 	     Milbank, Tweed, Hadley & McCloy LLP
	 

	 	     1 Chase Manhattan Plaza
	 

	 	     New York, New York 10005
	 

	 	     Attention: Thomas C. Janson
	 
	 	 
	 

	 	     Facsimile: (212) 530-5219
	 
	 

	 	If to Licensee
	 
	 	 
	 

	 	      Infogrames Entertainment SA
	 

	 	     1 Place Verrazzano
	 

	 	     69252 Lyon Cedex 09
	 

	 	     France
	 

	 	     Attention: Legal Affairs
	 
	 	 
	 

	 	     Fax: +33 (0)4 37 64 30 95
	 
	 	 
	 

	 	With a copies to:
	 
	 	 
	 

	 	      VEIL JOURDE
	 

	 	     38, Rue de Lisbonne
	 

	 	     75008 Paris
	 

	 	     France
	 

	 	     Attention: Emmanuel Rosenfeld












 



- 13 -


	 	 	 
	 

	 	     Fax: +33 (0)1 53 53 94 94
	 
	 	      
	 

	 	and
	 
	 	      
	 

	 	     Morrison & Foerster LLP
	 

	 	     1290 Avenue of the Americas
	 

	 	     New York, New York 10104-0050
	 

	 	     United States
	 

	 	     Attention: Michael B. Miller
	 
	 	      
	 

	 	     Fax: (212) 468-7900
	 
	 	      
	 

	 	Delivery shall be deemed conclusively made (i) at the time of
service, if personally served, (ii) five days after deposit in
the United States mail, properly addressed and postage prepaid,
if delivered by express mail or certified mail, (iii) upon
confirmation of delivery by the private overnight deliverer, if
served by overnight delivery, and (iv) at the time of electronic
transmission (with successful transmission confirmation),
provided a copy is mailed within 24 hours after such
transmission.






[The Next Page Is The Signature Page]










 



- 14 -


AGREED TO AND ACCEPTED:




	 	 	 	 	 	 	 	 	 
	ATARI, INC.	 	 	 	INFOGRAMES ENTERTAINMENT S.A.
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Curtis G. Solsvig
	 	 	 	By:
	 	/s/ Patrick Leleu
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	 	 	 	 	Name:
	 	Leleu Patrick
	 

	 	 
	 	 	 	 	 	 
	Title:

	 	 	 	 	 	Title:
	 	CEO