0000947871-05-000099.txt : 20120628 0000947871-05-000099.hdr.sgml : 20120628 20050113203622 ACCESSION NUMBER: 0000947871-05-000099 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20050114 DATE AS OF CHANGE: 20050113 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: INFOGRAMES ENTERTAINMENT SA CENTRAL INDEX KEY: 0001100953 IRS NUMBER: 000000000 STATE OF INCORPORATION: CA FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 82-84, RUE DU LER MARS 1943 STREET 2: FRANCE CITY: FRANCE STATE: A1 ZIP: 00000 MAIL ADDRESS: STREET 1: 82-84, RUE DU LER MARS 1943 STREET 2: FRANCE CITY: FRANCE STATE: A1 ZIP: 00000 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ATARI INC CENTRAL INDEX KEY: 0001002607 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 133689915 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-47017 FILM NUMBER: 05529132 BUSINESS ADDRESS: STREET 1: 417 FIFTH AVENUE CITY: NEW YORK STATE: NY ZIP: 10016 BUSINESS PHONE: 2127266500 MAIL ADDRESS: STREET 1: 417 FIFTH AVENUE CITY: NEW YORK STATE: NY ZIP: 10016 FORMER COMPANY: FORMER CONFORMED NAME: INFOGRAMES INC DATE OF NAME CHANGE: 20000511 FORMER COMPANY: FORMER CONFORMED NAME: GT INTERACTIVE SOFTWARE CORP DATE OF NAME CHANGE: 19951023 SC 13D/A 1 sc13da_011205.txt AMENDMENT NO. 8 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549, U.S.A. SCHEDULE 13D under the Securities Exchange Act of 1934 (Amendment No. 8) ATARI, INC. (F/K/A INFOGRAMES, INC., F/K/A GT INTERACTIVE SOFTWARE CORP.) (Name of Issuer) Common Stock, par value $0.01 per share --------------------------------------- (Title of Class of Securities) 04651M 10 5 (CUSIP Number) Frederic Monnereau Infogrames Entertainment SA 1 place Verrazzano 69252 Lyon Cedex 09 France +33 (0) 4 37 64 30 00 ---------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 21, 2004 ---------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this Schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Check the following box if a fee is being paid with this statement [ ]. Page 1 of 9 Pages Schedule 13D ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. INFOGRAMES ENTERTAINMENT SA IDENTIFICATION NO. OF ABOVE PERSON ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER (a) [ ] OF A GROUP (SEE INSTRUCTIONS) (b) [ ] ------------------------------------------------------------------------------- 3 SEC USE ONLY ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS) SC, OO ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ] IS REQUIRED PURSUANT TO ITEMS 2(d) to 2(e) ------------------------------------------------------------------------------- 6 CITIZENSHIP OF PLACE OF ORGANIZATION FRANCE ------------------------------------------------------------------------------- Number of shares 7 SOLE VOTING POWER 74,117,396(1) beneficially owned by -------------------------------------------------- each reporting person 8 SHARED VOTING POWER 260,000(2) with -------------------------------------------------- 9 SOLE DISPOSITIVE POWER 74,117,396(3) ------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 74,377,396(4) ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 61.3%(5) ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO ------------------------------------------------------------------------------- ---------------------------------- 1 Includes (i) 71,511,784 shares of Common Stock (the "CUSH Owned Shares") directly held by California U.S. Holdings, Inc., a wholly owned subsidiary of Infogrames, following the transfer of 10,600,000 shares of Common Stock by CUSH to Nexgen pursuant to the Transaction and the retransfer of 3,052,115 shares of Common Stock from Nexgen to CUSH in physical settlement of the Transaction on the Termination Date (see Item 6 below), (ii) 2,000,000 shares of Common Stock (the "Atari License Shares") issued to Atari Interactive, a wholly owned subsidiary of Infogrames, as part of the extension of the Atari name license, and 865,612 shares of Common Stock (the "IESA Owned Shares") issued to Infogrames Entertainment S.A. as part of the restructuring on September 18, 2003. 2 Represents a proxy for the vote of 260,000 shares of Common Stock (the "Cayre Director Proxy Shares") held by the Cayre family. 3 Includes (i) CUSH Owned Shares, (ii) the Atari License Shares, and (iii) the IESA Owned Shares. 4 Includes (i) CUSH Owned Shares, (ii) the Atari License Shares, (iii) the IESA Owned Shares and (iv) the Cayre Director Proxy Shares. 5 Based on 121,279,275 shares of the Company's Common Stock outstanding as of November 5, 2004. Page 2 of 9 Pages ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. CALIFORNIA U.S IDENTIFICATION NO. OF ABOVE PERSON HOLDINGS, INC. ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER (a) [ ] OF A GROUP (SEE INSTRUCTIONS) (b) [ ] ------------------------------------------------------------------------------- 3 SEC USE ONLY ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS) AF ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ] IS REQUIRED PURSUANT TO ITEMS 2(d) to 2(e) ------------------------------------------------------------------------------- 6 CITIZENSHIP OF PLACE OF ORGANIZATION CALIFORNIA ------------------------------------------------------------------------------- Number of shares 7 SOLE VOTING POWER 71,251,784(6) beneficially owned by -------------------------------------------------- each reporting person 8 SHARED VOTING POWER 260,000(7) with -------------------------------------------------- 9 SOLE DISPOSITIVE POWER 71,251,784(8) ------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 71,511,784(9) ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 59.0%(10) ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO ------------------------------------------------------------------------------- ---------------------------------- 6 Represents the 71,251,784 CUSH Owned Shares following the transfer of 10,600,000 shares to Nexgen in the Transaction and the retransfer of 3,052,115 shares of Common Stock from Nexgen to CUSH in physical settlement of the Transaction on the Termination Date (see Item 6 below). 7 Represents the 260,000 Cayre Director Proxy Shares. 8 Represents the 71,251,784 CUSH Owned Shares following the transfer of 10,600,000 shares to Nexgen in the Transaction and the retransfer of 3,052,115 shares of Common Stock from Nexgen to CUSH in physical settlement of the Transaction on the Termination Date (see Item 6 below). 9 Includes (i) CUSH Owned Shares and (ii) the Cayre Director Proxy Shares. 10 Based on 121,279,275 shares of the Company's Common Stock outstanding as of November 5, 2004. Page 3 of 9 Pages This Amendment No. 8 ("Amendment No. 8") to the Schedule 13D filed on December 14, 1999, as amended by Amendment No. 1 filed with the Securities Exchange Commission (the "SEC") on January 10, 2000, as amended and restated by Amendment No. 2 filed with the SEC on May 26, 2000, as amended by Amendment No. 3 filed with the SEC on October 4, 2000, as amended by Amendment No. 4 filed with the SEC on January 8, 2001, as amended by Amendment No. 5 filed with the SEC on September 24, 2003, as amended by Amendment No. 6 filed with the SEC on February 24, 2004 and by Amendment No. 7 filed with the SEC on June 18, 2004 (as so amended, the "Schedule 13D"), is filed by the undersigned to further amend the Schedule 13D. The Schedule 13D is filed with respect to the common stock, par value $.01 per share (the "Common Stock") of Atari Inc. (formerly known as Infogrames, Inc., formerly known as GT Interactive Software Corp.), a Delaware corporation (the "Company"). Capitalized terms used and not defined in this Amendment No. 8 shall have the meanings ascribed to them in the Schedule 13D. Except as specifically provided herein, this Amendment No. 8 does not modify any of the information previously reported in the Schedule 13D. Item 2. Identity and Background. This item is hereby amended and restated in its entirety to read as follows: (a) Infogrames Entertainment S.A. ("Infogrames") and California U.S. Holdings, Inc., a wholly owned subsidiary of Infogrames (previously in the Schedule 13D "Purchaser" and henceforth "CUSH", and together with Infogrames, the "Filing Persons"). (b) Infogrames is a societe anonyme organized under the laws of France. CUSH is a California corporation. (c) The address of the principal office of Infogrames is 1, place Verrazzano, 69252 Lyon Cedex 09 France. The address of the principal office of CUSH is c/o Atari, Inc. 417 Fifth Avenue, New York, NY 10016 (d) The principal business activities of the Filing Persons is the holding of equity interest in companies engaged in the business of development and distribution of computer software. (e) During the past five years, neither Filing Person has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (f) Neither Filing Person is, nor, during the last five years, was subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws as a result of a civil proceeding before a judicial or administrative body of competent jurisdiction nor has any such judicial or administrative body found either Filing Person was in violation of such laws. Set forth on Exhibit 1 to this Statement, and incorporated herein by reference, is the name, residence or business address, present principal occupation or employment, and citizenship, of each executive officer and director of the Filing Persons, and the name of any corporation or other organization in which such occupation or employment is conducted, Page 4 of 9 Pages together with the principal business and address of any such corporation or organization other than Infogrames or CUSH, as the case may be, for which such information is set forth. To the best of the Filing Persons' knowledge, none of the Filing Persons' directors or executive officers, (a) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) has been a party to a civil proceeding before a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 4. Purpose of the Transaction Item 4 is amended to add the following paragraphs: On October 21, 2004 Nexgen delivered to CUSH an early termination in accordance with the terms of the Transaction on the basis that the arithmetic average price of the stock of the Company for five successive trading days was less than $1.50. On October 28, 2004, CUSH and Nexgen amended the Transaction to provide for the early termination of the Transaction and to allow it to be carried out in a mixture of physical settlement and cash settlement, in accordance with market conditions. On December 21, CUSH and Nexgen entered into a letter agreement setting forth the final terms for termination of the Transaction. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Item 6 is amended to add the following paragraphs: Pursuant to the amendment (attached hereto as Exhibit 99.1), CUSH and Nexgen amended the Contracts to provide for the early termination of the Transaction and to allow it to be carried out in a mixture of physical settlement and cash settlement, in accordance with market conditions. Pursuant to the amendment CUSH and Nexgen further agreed that early termination was to be achieved by progressively decreasing the Equity Notional Amount of the Transaction based on the weighted average price at which Nexgen was able to unwind its hedge in relation to such reduction in the size of the Transaction and accordingly reducing the Number of Shares and also agreed that the Equity Reset Payments provisions and the Credit Cushion Payments provisions of the Transaction were to lapse. The amendment further provided that the Termination Date would be the earlier of (i) 15th February 2005, and (ii) the date upon which either the Number of Shares has been reduced to zero or the Equity Notional Amount has been reduced to zero and that upon the Termination Date, CUSH would pay to Nexgen the Equity Notional Amount (if any) remaining as of the Termination Date, and Nexgen would deliver to CUSH the Number of Shares (if any) remaining as of the Termination Date. CUSH had the right to indicate at any time to Nexgen that it wished to settle a part of the Transaction by physical settlement, provided that the amount of the Transaction that was subject to physical settlement was required to be limited to the number of Shares actually owned or controlled by Nexgen at such time. Page 5 of 9 Pages On December 21, 2004, Nexgen and CUSH agreed, pursuant to a letter agreement dated December 22, 2004 (attached hereto as Exhibit 99.2), to reduce the Equity Notional Amount from USD 2,151,429.51 to zero, at a weighted average price per share of Common Stock of USD 2.6104. Correspondingly, reducing the Number of Shares remaining from 3,880,097 to 3,055,917. Using the same weighted average price per share of USD 2.6104, to offset the USD 9,925.49 Floating Amount owing by CUSH to Nexgen pursuant to the amendment against delivery of 3,802 Shares that would otherwise have been due to be redelivered to CUSH under the Amendment. As a consequence of these reductions, the Number of Shares remaining was 3,052,115 shares of Common Stock and these shares were delivered by Nexgen to CUSH pursuant to paragraph 7 of the amendment on January 3, 2005. Item 7. Materials to Be Filed as Exhibits Exhibit 1 Chart Regarding Executive Officers and Directors of Filing Persons. * Exhibit 2 Joint Filing Agreement between the Filing Persons. (Filed on 12/14/1999 as Exhibit 2 to Schedule 13D and incorporated herein by reference.) Exhibit 3 Securities Purchase Agreement, dated as of November 15, 1999, among the Company and the Filing Persons. (Filed on 12/14/1999 as Exhibit 3 to Schedule 13D and incorporated herein by reference.) Exhibit 4 Short Term Note of the Company in the Principal Amount of $25.0 million. (Filed on 12/14/1999 as Exhibit 4 to Schedule 13D and incorporated herein by reference.) Exhibit 5 Warrant to Purchase 50,000 shares of Common Stock, issued to CUSH. (Filed on 12/14/1999 as Exhibit 5 to Schedule 13D and incorporated herein by reference.) Exhibit 6 5% Subordinated Convertible Note of the Company, issued to CUSH. (Filed on 1/10/2000 as Exhibit 6 to Amendment No.1 to Schedule 13D and incorporated herein by reference.) Exhibit 7 Equity Purchase and Voting Agreement, dated as of November 15, 1999, among the Filing Persons and the GAP Entities. (Filed on 12/14/1999 as Exhibit 8 to Schedule 13D and incorporated herein by reference.) Exhibit 8 Form of GAP Warrant. (Filed on 12/14/1999 as Exhibit 9 to Schedule 13D and incorporated herein by reference.) Exhibit 9 Exchange Agreement, dated as of November 15, 1999, among the Company and the GAP Entities. (Filed on 12/14/1999 as Exhibit 10 to Schedule 13D and incorporated herein by reference.) Page 6 of 9 Pages Exhibit 10 Form of Equity Purchase and Voting Agreements, dated as of November 15, 1999, among the Filing Persons and the members of the Cayre Group. (Filed on 12/14/1999 as Exhibit 11A to Schedule 13D and incorporated herein by reference.) Exhibit 11 Note Purchase Agreement, dated as of November 15, 1999, between certain members of the Cayre Group and CUSH. (Filed on 12/14/1999 as Exhibit 11B to Schedule 13D and incorporated herein by reference.) Exhibit 12 Right of First Offer Agreement, dated as of November 15, 1999, among CUSH and the Lenders. (Filed on 12/14/1999 as Exhibit 13 to Schedule 13D and incorporated herein by reference.) Exhibit 13 Supplemental Agreement, dated May 19, 2000, between Edmondson, Ward and Infogrames. (Filed on 10/04/2000 as Exhibit 13 to Amendment No. 3 and incorporated herein by reference.) Exhibit 14 Warrant Agreement, dated as of February 15, 2000, among the Company and CUSH, and Warrant to Purchase 45,000 shares of Common Stock (225,000 shares before Reverse Stock Split), issued to CUSH. (Filed on 10/04/2000 as Exhibit 14 to Amendment No. 3 and incorporated herein by reference.) Exhibit 15 Second Amended and Restated Registration Rights Agreement, dated as of October 2, 2000, between CUSH and the Company. (Filed on 10/04/2000 as Exhibit 15 to Amendment No. 3 and incorporated herein by reference.) Exhibit 16 Agreement and Plan of Merger, dated as of September 6, 2000, by and among the Company, Merger Sub, Infogrames, CUSH and INA. (Filed by the Company on 09/12/00 as Exhibit A to its Proxy Statement on Schedule 14C and incorporated herein by reference.) Exhibit 17 Stock Purchase and Exchange Agreement, dated December 28, 2001, among Infogrames and the Sellers. (Filed on 01/04/2001 as Exhibit 16 to Amendment No. 4 and incorporated herein by reference.) Exhibit 18 Convertible Subordinated Note issued by the Company to Infogrames, on December 28, 2001, in a principal amount of $40,812,000. (Filed on 01/04/2001 as Exhibit 17 to Amendment No. 4 and incorporated herein by reference.) Exhibit 19 Convertible Subordinated Note issued by the Company to Infogrames, on December 28, 2001, in a principal amount of $9,188,000. (Filed on 01/04/2001 as Exhibit 18 to Amendment No. 4 and incorporated herein by reference.) Page 7 of 9 Pages Exhibit 20 Trademark License Agreement, dated as of September 4, 2003, among Infogrames, Atari Interactive and the Company. (Filed by the Company on 09/05/03 as Exhibit 10.71 to its Registration Statement on Form S-2 and incorporated herein by reference.) Exhibit 21 Agreement Regarding Satisfaction of Debt and License Amendment, dated as of September 4, 2003, among CUSH, Infogrames and the Company. (Filed by the Company on 09/18/03 as Exhibit 10.70 to its Registration Statement on Form S-2 and incorporated herein by reference.) Exhibit 22 Underwriting Agreement, dated September 18, 2003, among the Company, Infogrames and UBS Securities LLC, Harris Nesbitt Gerard, Inc., and SoundView Technology Corporation, as Managing Underwriters. (Filed by the Company on 09/18/03 as Exhibit 1 to its Registration Statement on Form S-2 and incorporated herein by reference.) Exhibit 23 ISDA Master Agreement, dated June 11, 2004, between CUSH and Nexgen (Filed on 6/18/2004 as Exhibit 23 to Amendment 7 and incorporated herein by reference.) Exhibit 24 Transaction Confirmation, dated June 11, 2004, between CUSH and Nexgen, as amended on June 15, 2004 (Filed on 6/18/2004 as Exhibit 24 to Amendment 7 and incorporated herein by reference.) Exhibit 25 Amendment, dated June 15, 2004, to Transaction Confirmation, dated June 11, 2004, between CUSH and Nexgen (Filed on 6/18/2004 as Exhibit 25 to Amendment 7 and incorporated herein by reference.) Exhibit 26 Registration Rights Agreement, dated June 11, 2004, between CUSH and Nexgen (Filed on 6/18/2004 as Exhibit 26 to Amendment 7 and incorporated herein by reference.) Exhibit 99.1 Letter Agreement, dated October 28, 2004, between CUSH and Nexgen amending the Transaction Confirmation.* Exhibit 99.2 Letter Agreement, dated December 22, 2004, between CUSH and Nexgen relating to the Termination of the Transaction.* ------------------ * Filed with this Amendment. Page 8 of 9 Pages [NEXGEN FINANCIAL SOLUTIONS] [GRAPHIC OMITTED] SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: January 13, 2005 By: INFOGRAMES ENTERTAINMENT SA By: /s/ Bruno Bonnell --------------------------------- Bruno Bonnell Chairman and Chief Executive Officer Dated: January 13, 2005 By: CALIFORNIA U.S. HOLDINGS, INC. By: /s/ Bruno Bonnell --------------------------------- Bruno Bonnell Chairman and Chief Executive Officer Page 9 of 9 Pages EX-1 2 ex1_011205.txt EXECUTIVE OFFICERS AND FILING PERSONS Exhibit 1 CHART REGARDING EXECUTIVE OFFICERS AND DIRECTORS OF FILING PERSONS

Name Director (D) and/or Citizenship / Principal Principal Business Address Executive Officer Jurisdiction of Occupation or (EO) of Infogrames Organization Employment (I) and/or Purchaser (P) ------------------------------------------------------------------------------------------------------------------------------------ Bruno Bonnell I (D) (EO) France Chief Executive Development and Infogrames Officer of Distribution of Entertainment S.A. P (D) (EO) Infogrames Computer software 1, Place Verrazzano 69252 Cedex 09 Lyon France Thomas Schmider I (D) (EO) France Chief Operating Development and Infogrames Officer of Distribution of Entertainment S.A. P (D) (EO) Infogrames Computer software 1, Place Verrazzano 69252 Cedex 09 Lyon France Christophe Sapet I (D) (EO) France Executive Officer, Development and Infogrames Strategy of Distribution of Entertainment S.A. Infogrames Computer software 1, Place Verrazzano 69252 Cedex 09 Lyon France David Ward I (D) England Chairman of Atari Development and Infogrames representing Gray UK Ltd., managing Distribution of Entertainment S.A. Phantom Limited director of Computer software 1, Place Verrazzano Infogrames UK 69252 Cedex 09 Lyon subsidiaries France Jean-Michel Perbet I (D) (EO) France President of Atari Development and Infogrames Europe Distribution of Entertainment S.A. Computer software 1, Place Verrazzano 69252 Cedex 09 Lyon France

Page 1 of 2 Pages

Name Director (D) and/or Citizenship / Principal Principal Business Address Executive Officer Jurisdiction of Occupation or (EO) of Infogrames Organization Employment (I) and/or Purchaser (P) ------------------------------------------------------------------------------------------------------------------------------------ Frederic Chesnais I (EO) France Executive Officer, Development and Infogrames Finance, Chief Distribution of Entertainment S.A. P (D) (EO) Financial Officer Computer software 1, Place Verrazzano of Infogrames 69252 Cedex 09 Lyon France

Page 2 of 2 Pages EX-99.1 3 ex99-1_011205.txt LTR AGMT, DATED 10/28/04 BTWN CUSH AND NEXGEN Exhibit 99.1 [NEXGEN FINANCIAL SOLUTIONS] [GRAPHIC OMITTED] Nexgen Capital Limited Ormonde House 12 Lower Leeson Street Dublin 2, Ireland Tel: +353 1 439 4900 Fax: +353 1 439 4926 To: California U.S. Holdings, Inc c/o ATARI Inc 417 Fifth Avenue New York, NY 10016 United States of America Fax : +1 212 726 4239 Attention : General Counsel Copy: Infogrames Entertainment S.A. 1 Place Verrazzano 69252 Lyon, Cedex 09 France Fax : +33 4 3764 3095 Attention : Frederic Chesnais, Frederic Monnereau / Legal Department Copy: York Stockbrokers, Inc 610 Fifth Avenue, 6th Floor New York, N.Y. 10019 United States of America Attention : Stephen N. Walker / Felipe Aransaenz Fax : +1 212 218 8899 28th October 2004 Dear Sirs, Amendment Letter - modification of Knock-Out Mechanism We refer to (i) the Confirmation (the "Confirmation") dated 11th June 2004 relating to an Equity Swap Transaction (the "Transaction") between California U.S. Holdings, Inc. ("CUSH") and Nexgen Capital Limited ("Nexgen"), (ii) our Knock-Out Notice dated 21st October 2004 and (iii) our subsequent discussion relating to the settlement mechanisms arising in relation to the Knock-Out. Terms used but not defined herein have the meaning given to them in the Confirmation. We write to confirm our mutual agreement to amend the terms of the Transaction and the Confirmation as follows: 1. By way of amendment to the Confirmation, the early termination of the Transaction may be carried out in a mixture of physical settlement and cash settlement and shall Peter Blessing (Chairman), Frank Monks (Managing), Ravi Viswanathan (French), Luc Giraud (French), Francois Robey (French). Registered Number: 336438 Nexgen Capital Limited is authorised by the Irish Financial Services Regulatory Authority under the Investment Intermediaries Act, 1995 [NEXGEN FINANCIAL SOLUTIONS] [GRAPHIC OMITTED] be carried out partially, in accordance with market conditions. For the avoidance of doubt, any physical settlement shall be limited to the number of Shares held by Nexgen. 2. This early termination shall be achieved by progressively decreasing the Equity Notional Amount of the Transaction based on the weighted average price at which Nexgen was able to unwind its hedge in relation to such reduction in the size of the Transaction and accordingly reducing the Number of Shares. In addition, allobligations of both CUSH and Nexgen pursuant to the Equity Reset Payments provisions and the Credit Cushion Payments provisions of the Transaction shall lapse, (i.e. neither CUSH nor Nexgen shall be required to make any further Equity Reset payments, the Equity Reset Amounts shall be excluded from the calculation of the Equity Notional Amount, and Nexgen shall not be required to make any Credit Cushion payment on the Termination Date). Furthermore, in view of the alternative final settlement mechanism set out below, the Equity Amount Payments set out in the Confirmation shall be deleted and Section 8.6 of the Equity Definitions shall no longer apply to the Transaction. 3. On the basis of the foregoing, and after deduction of the Credit Cushion and of all Equity Reset payments paid as of the date of this letter, the Equity Notional Amount is reduced to USD 8,022,941. The resulting amended Number of Shares for the Transaction is 8,972,200 Shares. This amendment to the Transaction (together with the waiver of Equity Reset Payment and Credit Cushion Payment obligations referred to above) shall take effect on the date of signature of this letter. 4. CUSH shall have the right at any time to reduce, in whole or in part, the Equity Notional Amount in cash, subject to a maximum corresponding to the number of Shares which Nexgen holds at such time. Notwithstanding the foregoing, Nexgen shall continue to unwind its hedge in relation to the Transaction in a commercially reasonable manner (which the parties agree, for the avoidance of doubt, may include block trades at a discount in accordance with normal market practice), and shall communicate to CUSH on a weekly basis the resulting number of Shares by which it has reduced its hedge, the weighted average price at which such hedge was unwound, and the corresponding amended Number of Shares and amended Equity Notional Amount of the Transaction, which shall be deemed amended upon such notification by Nexgen. 5. The Calculation Agent shall calculate and notify to CUSH the corresponding partial Floating Amount that corresponds to each partial cash settlement of the Transaction at the applicable Fed Funds capitalised daily rate plus the Spread. The revised Payment Dates shall be the last Business Day of each calendar month (starting on 30th November), and the Termination Date. 6. The Termination Date shall be extended to be the earlier of (i) 15th February 2005,and (ii) the date upon which either the Number of Shares has been reduced to zero or the Equity Notional Amount has been reduced to zero. 7. Upon the Termination Date, CUSH shall pay to Nexgen the Equity Notional Amount (if any) remaining as of the Termination Date, and Nexgen shall deliver to CUSH the Number of Shares (if any) remaining as of the Termination Date. 8. CUSH may indicate at any time to Nexgen that it wishes to settle a part of the Transaction by physical settlement. The amount of the transaction that may be settled in this way shall be limited to the number of Shares actually owned or -------------------------------------------------------------------------------- Nexgen Capital Limited is authorised by the Irish Financial Services Regulatory Authority under the Investment Intermediaries Act, 1995 Page 2 of 3 [NEXGEN FINANCIAL SOLUTIONS] [GRAPHIC OMITTED] controlled by Nexgen at such time. The precise mechanism of such partial physical settlement shall be subject to the further agreement of the parties. Please sign and return to us a copy of this letter to indicate your agreement. Yours faithfully, NEXGEN CAPITAL LIMITED By: /s/ Francois Robey Name: Francois Robey Title: Director We agree to the terms of this letter as set out above. CALIFORNIA U.S. HOLDINGS, INC. By: /s/ Frederic Chesnais Name: Mr Frederic Chesnais Title: Secretary Countersigned, solely in its capacity as U.S. registered broker-dealer and in accordance with the provisions of Rule 15(a)(6) pursuant to the US Securities Exchange Act of 1934, by: YORK STOCKBROKERS, INC. By: Name: Title: -------------------------------------------------------------------------------- Nexgen Capital Limited is authorised by the Irish Financial Services Regulatory Authority under the Investment Intermediaries Act, 1995 Page 3 of 3 EX-99.2 4 ex99-2_011205.txt LTR AGMT, DATED 12/22/04 BTWN CUSH AND NEXGEN Exhibit 99.2 [NEXGEN FINANCIAL SOLUTIONS] [GRAPHIC OMITTED] Nexgen Capital Limited Ormonde House 12 Lower Leeson Street Dublin 2, Ireland Tel: +353 1 439 4900 Fax: +353 1 439 4926 To: California U.S. Holdings, Inc c/o ATARI Inc 417 Fifth Avenue New York, NY 10016 United States of America Fax : +1 212 726 4239 Attention : General Counsel Copy: Infogrames Entertainment S.A. 1 Place Verrazzano 69252 Lyon, Cedex 09 France Fax : +33 4 3764 3095 Attention : Frederic Chesnais, Frederic Monnereau / Legal Department Copy: York Stockbrokers, Inc 610 Fifth Avenue, 6th Floor New York, N.Y. 10019 United States of America Attention : Stephen N. Walker / Felipe Aransaenz Fax : +1 212 218 8899 22nd December 2004 Dear Sirs, Amendment Letter - termination of Transaction We refer to (i) the Confirmation (the "Confirmation") dated 11th June 2004 relating to an Equity Swap Transaction (the "Transaction") between California U.S. Holdings, Inc. ("CUSH") and Nexgen Capital Limited ("Nexgen"), (ii) our Amendment Letter dated 28th October 2004 (the "Amendment Letter") relating to the modification of the Knock-Out Mechanism, and (iii) our discussions yesterday relating to the unwinding of the final portion of the Transaction. Terms used but not defined herein have the meaning given to them in the Confirmation or the Amendment Letter. We write to confirm our mutual agreement, with effect as of yesterday, 21st December 2004, as follows: 1. We agreed to reduce the Equity Notional Amount from USD 2,151,429.51 to zero, at a weighted average price per Share of USD 2.6104. Correspondingly, this reduced the Number of Shares remaining from 3,880,097 to 3,055,917. Peter Blessing (Chairman), Frank Monks (Managing), Ravi Viswanathan (French), Luc Giraud (French), Francois Robey (French). Registered Number: 336438 Nexgen Capital Limited is authorised by the Irish Financial Services Regulatory Authority under the Investment Intermediaries Act, 1995 [NEXGEN FINANCIAL SOLUTIONS] [GRAPHIC OMITTED] 2. Using the same weighted average price per Share of USD 2.6104, we agreed to offset the USD 9,925.49 Floating Amount owing from CUSH to Nexgen pursuant to paragraph 5 of the Amendment Letter against delivery of 3,802 Shares that would otherwise have been due to be redelivered to CUSH paragraph 7 of the Amendment Letter. 3. Following both of these reductions, the Number of Shares remaining and due to be delivered by Nexgen to CUSH pursuant to paragraph 7 of the Amendment Letter is therefore 3,052,115 Shares (the "Final Shares"). 4. We hereby confirm that, upon your due execution of this letter, CUSH shall have no further obligations to Nexgen pursuant to the Transaction. 5. Nexgen is ready immediately to deliver the Final Shares to you. As previously requested, please provide us with your securities account details for receipt of the Final Shares (which are now in dematerialised format), or your alternative instructions as to how you wish these shares to be delivered to you. 6. Upon our delivery to you of the Final Shares, Nexgen shall have no further obligations to CUSH pursuant to the Transaction. Please sign and return to us a copy of this letter to indicate your agreement. Yours faithfully, NEXGEN CAPITAL LIMITED By: /s/ Frank Monks Name: Frank Monks Title: Managing Director We agree to the terms of this letter as set out above. CALIFORNIA U.S. HOLDINGS, INC. By: Name: Mr Frederic Chesnais Title: Secretary Countersigned, solely in its capacity as U.S. registered broker-dealer and in accordance with the provisions of Rule 15(a)(6) pursuant to the US Securities Exchange Act of 1934, by: YORK STOCKBROKERS, INC. By: Name: Title: -------------------------------------------------------------------------------- Nexgen Capital Limited is authorised by the Irish Financial Services Regulatory Authority under the Investment Intermediaries Act, 1995 Page 2 of 2