0000947871-05-000113.txt : 20120703
0000947871-05-000113.hdr.sgml : 20120703
20050118150124
ACCESSION NUMBER: 0000947871-05-000113
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 3
FILED AS OF DATE: 20050118
DATE AS OF CHANGE: 20050118
GROUP MEMBERS: CALIFORNIA US HOLDINGS INC
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: 05533501
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_011805.txt
SCHEDULE 13-D/A
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549, U.S.A.
SCHEDULE 13D
under the Securities Exchange Act of 1934
(Amendment No. 9)
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)
January 13, 2005
----------------------------------------------
(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 10 Pages
xxx
Schedule 13D
-------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON S.S. OR I.R.S. INFOGRAMES
IDENTIFICATION NO. OF ABOVE PERSON ENTERTAINMENT SA
-------------------------------------------------------------------------------
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 63,117,396(1)
beneficially owned by --------------------------------------------------
each reporting person 8 SHARED VOTING POWER 260,000(2)
with --------------------------------------------------
9 SOLE DISPOSITIVE POWER 63,117,396(3)
-------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON 63,377,396(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) 52.3%(5)
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON CO
-------------------------------------------------------------------------------
_____________________________
1 Includes (i) 60,251,784 shares of Common Stock (the "CUSH Owned Shares")
directly held by California U.S. Holdings, Inc., a wholly owned subsidiary
of Infogrames, following the sale by CUSH of 11,000,000 shares to eight
institutional investors on January 13, 2005, (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 10 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 60,251,784(6)
beneficially owned by --------------------------------------------------
each reporting person 8 SHARED VOTING POWER 260,000(7)
with --------------------------------------------------
9 SOLE DISPOSITIVE POWER 60,251,784(8)
-------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON 60,511,784(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) 49.9%(10)
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON CO
-------------------------------------------------------------------------------
_____________________________
6 Represents the 60,251,784 CUSH Owned Shares, following the sale by CUSH of
11,000,000 shares to eight institutional investors on January 13, 2005.
7 Represents the 260,000 Cayre Director Proxy Shares.
8 Represents the 60,251,784 CUSH Owned Shares.
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 10 Pages
This Amendment No. 9 ("Amendment No. 9") 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, as amended by Amendment No. 7 filed with the SEC on June 18,
2004, and as amended by Amendment No. 8 filed with the SEC on January 14, 2005
(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. 9 shall have the meanings ascribed to them in the Schedule
13D.
Except as specifically provided herein, this Amendment No. 9 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 interests 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 10 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 January 13, 2005 CUSH sold 11,000,000 shares to eight institutional
investors at a negotiated price of $2.55 per share.
Item 5. Interest in Securities of the Issuer
Item 5 is amended to add the following statements to each of the
following paragraphs:
(a) The responses of the Filing Persons to Rows (11) through (13) of
the cover pages of this Statement are incorporated herein by
reference. The calculation of the following percentages is based on
the number of shares of Common Stock disclosed as outstanding as of
November 5, 2004, as reported by the Company in its quarterly report
on Form 10-Q for the quarter ended September 30, 2004 as filed with
the Securities & Exchange Commission on November 9, 2004. Following
the sale by CUSH of 11,000,000 shares to eight institutional investors
on January 13, 2005, CUSH may be deemed to be the beneficial owner of
60,511,784 shares of Common Stock, including the 60,251,784 shares of
Common Stock directly held by CUSH and the 260,000 shares held by the
Cayre Group and subject to a proxy in favor of CUSH for the election
and removal of directors pursuant to the Cayre Purchase Agreements.
The 60,511,784 shares of Common Stock of which CUSH may be deemed the
beneficial owner represent 49.9%% of the outstanding shares of the
Company.
Following the sale by CUSH of 11,000,000 shares to eight
institutional investors on January 13, 2005, Infogrames may be deemed
to be the beneficial owner of 63,377,396 shares of Common Stock,
including, by virtue of its ownership of 100% of the capital stock of
CUSH, 60,511,784 shares of Common Stock that are deemed beneficially
owned by CUSH and, in addition, the 2,000,000 Atari License Shares
held by Infogrames wholly owned subsidiary Atari Interactive and the
865,612 shares of Common Stock directly held by Infogrames. The
63,377,396 shares of which Infogrames may be deemed the beneficial
owner represent 52.3% of the outstanding shares of the Company.
Except as disclosed in this Item 5(a), none of the Filing Persons nor,
to the best of their knowledge, any of the persons listed on Exhibit 1
to this
Page 5 of 10 Pages
Statement beneficially owns any Shares or has the right to acquire any
Shares.
(b) The responses of the Filing Persons to (i) Rows (7) through (10)
of the cover pages of this Statement on Schedule 13D and (ii) Item
5(a) hereof are incorporated herein by reference.
Except as disclosed in this Item 5(b), none of the Filing Persons nor,
to the best of their knowledge, any of the persons listed on Exhibit 1
to this Statement presently has the power to vote or to direct the
vote or to dispose or direct the disposition of any of the Shares
which they may be deemed to beneficially own.
(c) The responses of the Filing Persons to Item 4 hereof are
incorporated herein by reference.
Except as disclosed in this Statement, none of the Filing Persons nor,
to the best of their knowledge, any of the persons listed on Exhibit 1
to this Statement has effected any transaction in the Shares during
the past 60 days.
(d) To the best knowledge of the Filing Persons, no other person has
the right to receive or the power to direct the receipt of dividends
from, or the proceeds from the sale of, the Shares beneficially owned
by the Filing Persons.
(e) Not applicable.
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 eight separate purchase agreements (the form of which is
attached hereto as Exhibit 99.3), CUSH sold 11,000,000 shares to eight
institutional investors at a negotiated price of $2.55 per share on January 13,
2005. The shares were sold from the 12,052,115 shares registered on Atari's
Registration Statement on Form S-3 (No. 333-117136) (the "Registration
Statement"). As of the date hereof 1,052,115 remain unsold under the
Registration Statement.
Wedbush Morgan Securities Inc. ("WMS") acted as agent for the Seller
pursuant to the letter agreement, dated January 7, 2005, attached hereto as
Exhbit 99.4. WMS received a transaction fee of 4.0% plus reimbursement of its
reasonable out-of-pocket expenses in connection with the sale.
Item 7. Materials to Be Filed as Exhibits
Exhibit 1 Chart Regarding Executive Officers and Directors of
Filing Persons. (Filed on 1/14/2005 as Exhibit 1 to
Schedule 13D to Amendment No. 8 and incorporated herein
by reference.)
Page 6 of 10 Pages
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.)
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.)
Page 7 of 10 Pages
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.)
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.)
Page 8 of 10 Pages
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.
(Filed on 1/14/2005 as Exhibit 99.1 to Schedule 13D to
Amendment No. 8 and incorporated herein by reference.)
Exhibit 99.2 Letter Agreement, dated December 21, 2004, between
CUSH and Nexgen relating to the Termination of the
Transaction. (Filed on 1/14/2005 as Exhibit 99.2 to
Schedule 13D to Amendment No. 8 and incorporated herein
by reference.)
Exhibit 99.3 Form of Letter Purchase Agreement, dated January
13, 2005, between CUSH and each purchaser relating to
the sale of 11,000,000 shares. *
Exhibit 99.4 Letter Agreement, dated January 7, 2005, between
CUSH and Wedbush Morgan Securities Inc. ("WMS"),
relating to WMS's appointment as agent of CUSH in the
sale of shares. *
__________________
* Filed with this Amendment.
Page 9 of 10 Pages
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 14, 2005 By: INFOGRAMES ENTERTAINMENT SA
By:__________________________________
Bruno Bonnell
Chairman and Chief Executive Officer
Dated: January 14, 2005 By: CALIFORNIA U.S. HOLDINGS, INC.
By:__________________________________
Bruno Bonnell
Chairman and Chief Executive Officer
Page 10 of 10 Pages
EX-99.3
2
ex99-3_011805.txt
TO SC13D/A
Exhibit 99.3
California U.S. Holdings, Inc.
417 Fifth Avenue
New York, NY 10016
Ladies and Gentlemen:
The undersigned, ________________________________ (the "Purchaser"),
hereby confirms its agreement with you as follows:
1. This Agreement is made as of January [13], 2005 between the
Purchaser and California U.S. Holdings, Inc., a California corporation (the
"Seller").
2. The Seller is the record and beneficial owner of 71,251,784 shares
of common stock, par value $.01 per share ("Common Stock"), of Atari, Inc., a
Delaware corporation ("Atari"), and intends to sell to two or more buyers,
including the Purchaser, an aggregate of up to 11,000,000 fully paid and
nonassessable shares of Common Stock (the "Shares"). The proposed sale of the
Shares has been registered under the Securities Act of 1933, as amended,
pursuant to Atari's Registration Statement on Form S-3 (No. 333-117136) (the
"Registration Statement"). The Registration Statement was declared effective on
August 20, 2004, remains effective on the date hereof and will be effective at
the time of the Closing (as defined below).
3. The Seller and the Purchaser agree that the Purchaser will purchase
from the Seller and the Seller will sell to the Purchaser _________ Shares (the
"Purchaser Shares") for a purchase price of $____ per Share, or an aggregate
purchase price of $__________. The Purchaser acknowledges that the offering of
the Shares is not a firm commitment underwriting and that there is no minimum
offering amount.
4. The completion of the purchase and sale of the Purchaser Shares
(the "Closing") will occur on January [14], 2005. At or prior to the Closing,
the Purchaser will deliver to Wedbush Morgan Securities Inc., as agent for the
Seller ("WMS"), a Federal Funds wire transfer in the full amount of the purchase
price for the Purchaser Shares. At the Closing, the Seller will cause to be
delivered to the Purchaser, using customary book-entry and/or physical delivery
procedures, the number of Shares as set forth above in Section 3 against
delivery to the Seller by WMS of a Federal Funds wire transfer in the amount of
the purchase price, net of agents' fees and expenses, for the Purchaser Shares.
5. The Purchaser hereby confirms receipt of the Prospectus Supplement
dated January 12, 2005 and the related Prospectus dated August 24, 2004
(collectively, the "Prospectus") of Atari delivered physically or by email to
the Purchaser accompanied by this Agreement. The Purchaser confirms that it has
had full access to the Prospectus and has been fully able to read, review,
download and print the Prospectus.
6. Each of the Seller and the Purchaser represents and warrants to the
other party that, as of the date hereof and the time of the Closing, (a) it has
full right, power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement,
and (b) this Agreement constitutes a valid and binding obligation of such party,
enforceable against it in accordance with the terms of this Agreement.
7. The Purchaser acknowledges and agrees that nothing in the
Prospectus, this Agreement or any other materials presented to the Purchaser in
connection with the purchase and sale of the Purchaser Shares constitutes legal,
tax or investment advice. The Purchaser represents and warrants that, as of the
date hereof and the time of the Closing, it has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of Shares and acknowledges that it
is not relying on WMS to perform due diligence or any other investigation and
that no accountant's "comfort letter" will be delivered in connection with the
transactions contemplated hereby. The Purchaser acknowledges that it has
requested that it not be provided any material nonpublic information.
8. The Seller represents and warrants that, as of the date hereof and
the time of the Closing, (a) it has good and valid title to the Purchaser Shares
and the legal right and power, and all authorizations and approvals required by
law and under its charter and bylaws, to sell, transfer and deliver the
Purchaser Shares hereunder, (b) delivery of and payment for the Purchaser Shares
hereunder will pass to the Purchaser good and valid title to the Purchaser
Shares, free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim created or suffered by the Seller, (c) as described in the
Prospectus, without giving effect to the transactions contemplated hereby, the
Seller and its affiliates beneficially own shares of Common Stock representing
approximately 61% of the outstanding Common Stock, and the individual who serves
as Chairman and Chief Executive Officer of the Seller also serves as Chairman
and Chief Creative Officer of Atari, (d) the Seller has not directly or
indirectly disclosed to the Purchaser any nonpublic information that it believes
to be material with respect to Atari or the transactions contemplated hereby,
and (e) to the Seller's knowledge, the Registration Statement and Prospectus do
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
9. The Purchaser represents and warrants that, as of the date hereof
and the time of the Closing, it (a) is a sophisticated investor and has such
knowledge and experience in financial and business matters and expertise in
assessing investment risk, (b) is capable of evaluating the merits, risks and
suitability of investing in the Purchaser Shares and (c) is able to bear the
economic risks of, and an entire loss of, its investment in the Purchaser
Shares.
10. This Agreement will be governed by, and construed in accordance
with, the internal laws of the State of New York.
11. Each of the parties hereto hereby waives to the fullest extent
permitted by applicable law any right it may have to a trial by jury with
respect to any litigation directly or indirectly arising out of, under or in
connection with this Agreement or the transactions contemplated by this
Agreement. Each of the parties hereto hereby (a) certifies that no
representative, agent or attorney of the other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (b) acknowledges that it has been induced to
enter into this Agreement and the transactions contemplated by this Agreement,
as applicable, by, among other things, the mutual waivers and certifications in
this Section 11.
12. This Agreement may be executed in two or more counterparts, each
of which will constitute an original, but all of which, when taken together,
will constitute but one instrument, and will become effective when one or more
counterparts have been signed by each party hereto and delivered to the other
parties.
13. The parties' representations and warranties herein will survive
the Closing.
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
Name of Purchaser:
_____________________________________________
_____
By:__________________________________________
Name:
Title:
Address:_____________________________________
_____________________________________________
_____________________________________________
Tax ID No.:__________________________________
Contact Name:________________________________
Contact Fax Number:__________________________
Contact Email:_______________________________
Contact Telephone Number:____________________
Name in which book-entry should be made (if
different):__________________________________
Broker:______________________________________
Broker Contact Name:_________________________
Broker Phone Number:_________________________
Broker Fax:__________________________________
Broker Email:________________________________
DTC Account Number:__________________________
AGREED AND ACCEPTED:
CALIFORNIA U.S. HOLDINGS, INC.
By:__________________________________
Name:
Title:
EX-99.4
3
ex99-4_011805.txt
TO SC13D/A
EXHIBIT 99.4
1000 WILSHIRE BOULEVARD, LOS ANGELES, CALIFORNIA 90017-2465
MAILING ADDRESS: P.O. BOX 30014, LOS ANGELES, CALIFORNIA 90030-0014
[Graphic omitted] WEDBUSH MORGAN (213) 688 4545
SECURITIES FAX (213) 688 6642
Investment Bankers Since 1925
January 7, 2004
CONFIDENTIAL
------------
Mr. Bruno Bonnell
Chairman and CEO
California U.S. Holdings, Inc.
417 5th Avenue
New York NY 10016
Dear Mr. Bonnell:
This letter agreement (this "Agreement") confirms our understanding with respect
to the engagement by California U.S. Holdings, Inc. (the "Company") of Wedbush
Morgan Securities, Inc. ("Wedbush Morgan") in connection with the sale of
approximately 10 million shares of Atari, Inc. common stock (the "Securities")
on a best efforts basis through a registered direct offering or private
placement to "accredited" investors (the "Transaction"). The term of the
engagement shall be for a period of 12 months or until terminated by either
party as provided below (see Termination).
1. Scope of Engagement. The Company hereby engages Wedbush Morgan to act as
-------------------
its placement agent ("Placement Agent") in connection with the Transaction.
Wedbush Morgan shall assist the Company in preparing documents and in
identifying potential investors and shall, on behalf of the Company,
contact such potential investors as Wedbush Morgan deems appropriate.
Wedbush Morgan shall assist the Company in analyzing, structuring,
negotiating and effecting the Transaction. The Company shall cooperate with
Wedbush Morgan in connection with the identification of potential investors
and shall report and refer all contacts and inquiries received by the
Company regarding the engagement to Wedbush Morgan. It is anticipated that
the Company shall also engage its own legal counsel and may require the
services of an accounting firm.
2. Company Information. The Company shall cooperate with Wedbush Morgan in
-------------------
connection with its financial review and analysis of the Company and Atari,
Inc. and shall provide Wedbush Morgan with such information concerning the
Company and Atari, Inc. as Wedbush Morgan deems reasonably necessary or
appropriate for such review and analysis (collectively, the "Information").
Wedbush Morgan shall keep in confidence and shall not, without the
Company's prior consent, disclose to any person except on a need to know
basis internally (except its own counsel or as such counsel has reasonably
advised is required by applicable law and then only to the extent
necessary) any non-public Information furnished by or derived from any
Information furnished by the Company to Wedbush Morgan.
MEMBER NEW YORK STOCK EXCHANGE
1000 WILSHIRE BOULEVARD, LOS ANGELES, CALIFORNIA 90017-2465
MAILING ADDRESS: P.O. BOX 30014, LOS ANGELES, CALIFORNIA 90030-0014
[Graphic omitted] WEDBUSH MORGAN (213) 688 4545
SECURITIES FAX (213) 688 6642
Investment Bankers Since 1925
All Information provided by the Company shall be accurate and complete in
all material respects and shall not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they were
made, not false or misleading. Wedbush Morgan does not assume
responsibility for the accuracy or completeness of the Information,
including but not limited to any disclosure materials related to the
Transaction. The Company acknowledges and agrees that Wedbush Morgan will
rely primarily on the Information and on information available from
generally recognized public sources in performing its services hereunder,
without having independently verified the same.
3. The Company shall pay Wedbush Morgan the following amounts:
a. Minimum Fee. Upon the earliest of (i) closing of the Transaction, or (ii)
-----------
termination of this Agreement, the Company shall pay Wedbush Morgan a
minimum fee of $50,000, which shall be credited against any success fees
outlined below.
b. Fees for the Securities. Wedbush Morgan shall be paid upon consummation of
-----------------------
the Transaction a transaction fee, payable in cash, of 4.0% of the Gross
Proceeds (as defined below) from the sale of the Securities in connection
with the Transaction (the "Transaction Fee") and excludes expenses. For
purposes hereof, "Gross proceeds" shall mean the fair market value of all
of the consideration (including, without limitation, cash, securities,
other assets, and contingent payments such as earn-outs, only as and if the
money is actually received by the Company) paid by investors for the
Company's Securities issued in connection with the Transaction, as part of
such Transaction before the deduction of expenses related to the
Transaction, including the fee payable to Wedbush Morgan.
c. Expenses. Wedbush Morgan shall promptly be reimbursed for all of its
--------
reasonable out-of-pocket expenses incurred in connection with its
engagement hereunder, including fees and expenses of travel, legal
counsel, background checks, printing, shipping, delivery, and other third
party services, provided aggregate expenses shall not exceed $50,000 unless
approved in writing by the Company. Invoice(s) will be submitted to the
Company as expenses are incurred and shall be paid in 30 days or less. It
is anticipated that the Company will engage legal counsel, accountants, and
other professionals as reasonably required.
4. Indemnification. The Company shall indemnify Wedbush Morgan and its
---------------
affiliates and their respective directors, offices, employees, agents and
controlling persons (Wedbush Morgan and each such person being an
"Indemnified Party") from and against any and all losses, claims, damages,
and liabilities, joint or several, to which such Indemnified Party may
become subject
MEMBER NEW YORK STOCK EXCHANGE
1000 WILSHIRE BOULEVARD, LOS ANGELES, CALIFORNIA 90017-2465
MAILING ADDRESS: P.O. BOX 30014, LOS ANGELES, CALIFORNIA 90030-0014
[Graphic omitted] WEDBUSH MORGAN (213) 688 4545
SECURITIES FAX (213) 688 6642
Investment Bankers Since 1925
under any applicable federal or state law, or otherwise related to or
arising out of any Transaction contemplated by this Agreement or the
engagement of Wedbush Morgan pursuant to, or the performance by Wedbush
Morgan of the services contemplated by this Agreement and shall reimburse
each Indemnified Party for all expenses (including reasonable legal fees
and expenses) as they are incurred in connection with the investigation of,
preparation for, or defense of any pending or threatened claim or any
action or proceeding arising there from, whether or not such Indemnified
Party is a party to such action or proceeding. Notwithstanding the
foregoing, the Company shall not be liable for indemnification under this
paragraph to the extent that any such loss, claim, damage, or liability is
determined, in a final judgment by a court of competent jurisdiction to
have resulted from Wedbush Morgan's bad faith or gross negligence.
5. Termination. The engagement hereunder and this Agreement may be terminated
-----------
at any time by either party upon written notice to the other party,
effective upon receipt of written notice to that effect by the other party,
or automatically upon consummation of the Transaction. The provisions of
Sections 2, 3, 4, 7 and 8 shall survive any such termination.
6. Arbitration. Any claim or dispute arising out of this Agreement or the
-----------
alleged breach thereof shall be submitted by the parties to binding and
non-appealable arbitration before the National Association of Securities
Dealers ("NASD") to be held in Los Angeles, California. If the NASD is
unavailable as a forum, the New York Stock Exchange ("NYSE") will be used.
Both parties shall attempt in good faith to seek mediation before
submitting to arbitration.
7. Miscellaneous.
-------------
a. Successors and Assigns. This Agreement shall be binding on and inure to the
----------------------
benefit of each party's successors and assigns, but may not be assigned
without the prior written consent of the other party.
b. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of California, without
regard to conflict of laws or principles thereof.
c. Amendment. This Agreement may not be modified or amended except in writing
---------
signed by the parties hereto.
d. Entire Agreement. This Agreement is entered into by each of the parties
----------------
hereto without reliance on any statement, representation, promise,
inducement or agreement not expressly contained within this Agreement. With
respect to the subject matter
MEMBER NEW YORK STOCK EXCHANGE
hereof, this Agreement constitutes the entire agreement between the
parties and supersedes all prior oral or written agreements.
e. Corporate Obligation. The obligations of Wedbush Morgan and the Company
--------------------
hereunder are solely corporate obligations, and no officer, director,
employee, agent, shareholder or controlling person shall be subject to any
personal liability whatsoever to any person, nor will any such claim be
asserted by or on behalf of the Company or any of its affiliates.
8. Opinions and Advice. All opinions and advice, whether written or oral,
-------------------
rendered by Wedbush Morgan to the Company pursuant to this Agreement are
intended solely for the Company's benefit and use in considering the
Transaction. No such opinions or advice may be disclosed to third parties
without Wedbush Morgan's prior written consent.
9. Wedbush Morgan acknowledges that it has been retained to act solely as an
advisor to the Company and not as an advisor to Atari, Inc. or any other
entity. Atari, Inc. will not be deemed to have any obligations under this
agreement.
If the foregoing correctly sets forth your understanding and intentions, please
so indicate by signing and returning to us the enclosed copy of this letter.
Sincerely,
WEDBUSH MORGAN SECURITIES INC.
By: ______________________________
Mark Salter
Managing Director
Head of Investment Banking
APPROVED AND ACCEPTED
ON January 7th, 2005:
CALIFORNIA U.S. HOLDINGS, INC.
By: /s/ Bruno Bonnell
-------------------------
Name: Mr. Bruno Bonnell
Title: Chairman
MEMBER NEW YORK STOCK EXCHANGE