Amendment to General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D/A Schedule 13D Amendment No. 3 Atari Corporation 9 57K
2: EX-2 Exhibit 2 Stock Purchase Agmt Atari/Twi 11± 42K
3: EX-3 Exhibit 3 Stock Purchase Agmt Atari Corp/Games 10± 34K
4: EX-4 Exhibit 4 Registration Rights Ltr/Exb 4D 2 10K
EX-3 — Exhibit 3 Stock Purchase Agmt Atari Corp/Games
| EX-3 | 1st “Page” of 4 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
|---|
STOCK PURCHASE AGREEMENT (the "Agreement") made and entered
into this 24th day of March, 1994 between ATARI CORPORATION, a Nevada
corporation ("Atari") and ATARI GAMES CORPORATION, a Delaware Corporation
("Atari Games"). Capitalized terms used herein and not otherwise defined
shall have the meanings given to such terms in the Stock Purchase
Agreement by and between Atari and Time Warner Inc. ("TWI"), dated as of
the date hereof (the "Stock Purchase Agreement").
W I T N E S S E T H
WHEREAS, Atari desires to issue to Atari Games an aggregate
of 70,000 shares (the "Shares") of its Common Stock, par value $.01 per
share (the "Common Stock"), in settlement of certain amounts owing by
Atari to Atari Games and Atari Games is willing to accept the same,
subject to the terms and conditions and for the consideration set forth
herein.
NOW, THEREFORE, for and in consideration of the foregoing
premises, the mutual promises, agreements and covenants hereinafter set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
Section 1. The Shares.
Subject to the terms and conditions of this Agreement, at the
Closing, Atari shall issue and sell to Atari Games and Atari Games shall
purchase from Atari, the Shares, represented by one or more stock
certificates, issued in the name of Atari Games.
Section 2. Consideration.
In consideration of the Shares, Atari Games shall deem the
royalty payments (the "Royalty Payments") owing to Atari Games from Atari
through December 31, 1993, under the software license agreements listed
on Schedule I hereto (the "License Agreements"), satisfied and fully
paid. The parties acknowledge and agree that the Shares are being issued
to Atari Games in settlement of amounts owing under the License
Agreements through December 31, 1993 and that from and after the Closing
Date, Atari shall have no further obligation or liability with respect to
the Royalty Payments for the period ending December 31, 1993.
Notwithstanding any provision contained herein to the contrary, the
parties agree that Atari shall continue to be liable to Atari Games for
royalty payments accuring under the License Agreements after December 31,
1993. The parties acknowledge and agree that the minimum guarantee
requirements under the License Agreements shall have no further force or
effect.
Section 3. Representations, Warranties and Agreements of
Atari Games.
Atari Games hereby represents and warrants to Atari and
agrees with Atari as follows:
(a) Due Authorization. This Agreement has been duly
authorized by all necessary corporate action on the part of Atari Games,
has been duly executed and delivered by Atari Games, and constitutes the
legal, valid and binding obligation of Atari Games, enforceable in
accordance with its terms.
(b) No Violation. Neither the execution and delivery
of this Agreement nor the consummation of the transactions contemplated
hereby by Atari Games will (i) violate or result in any violation of or
be in conflict with or constitute a default under any term of the
Certificate of Incorporation or By-laws of Atari Games or of any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to Atari Games, or (ii) require that
Atari Games obtain the consent or authorization of or waiver or filing by
or make a filing with any governmental, administrative or self-regulatory
body or agency or any other person or entity, other than any such
consent, authorization, waiver which has been duly and validly obtained
or made prior to the date hereof, other than a filing under the Hart-
Scott-Rodino Antitrust Improvements Act of 1976 and the rules and
regulations promulgated thereunder (the "HSR Act") or (iii) require the
satisfaction or termination of any waiting period under any application
statute, rule or governmental regulation applicable to Atari Games, other
than compliance with the HSR Act.
(c) Investment Representation. The acquisition of the
Shares by Atari Games will be for investment purposes only and for the
sole account of Atari Games and not with a view to the redistribution or
resale of any or all of the Shares. None of the Shares acquired pursuant
to this Agreement will be transferred except in a transaction registered
or exempt from registration under the Securities Act of 1933, as amended.
Atari Games acknowledges that any certificate for the Shares shall bear a
legend with respect to the transfer or resale of the Shares substantially
as follows:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 and such shares may not
be sold or transferred unless such sale or transfer will be
effected in accordance with the registration requirements of the
Securities Act of 1933, as at the time amended, or in conformity
with the limitations of Rule 144 promulgated under such Act or in
conformity with any other exemption from the registration
requirements of such Act which may then be available with respect
thereto."
4. Representations, Warranties and Agreements of Atari.
Atari hereby represents and warrants to Atari Games and
agrees with Atari Games as follows:
(a) Organization. Atari is a corporation duly
organized, validly existing, and in good standing under the laws of the
State of Nevada and is duly qualified to do business and in good standing
as a foreign cor poration in the jurisdiction where it is required to
qualify to conduct its business as presently conducted. Atari has the
requisite corporate power and authority to own its property and to carry
on its business as now conducted.
(b) Due Authorization. Atari has full power and
authority to execute and deliver this Agreement and, as of the Closing
Date, has full power and authority to perform this Agreement, including,
without limitation, the power and authority to issue the Shares. Atari
has duly taken all corporate and other actions necessary to authorize the
execution and delivery of this Agreement and, as of the Closing Date, has
duly taken all corporate and other actions necessary to authorize the
performance of this Agreement, including, without limitation, all actions
necessary to authorize the issuance of the Shares. This Agreement has
been duly executed and delivered by Atari and this Agreement constitutes
the legal, valid and binding obligation of Atari enforceable in
accordance with its terms.
(c) No Violation. Neither the execution and delivery
of this Agreement nor the consummation of the transactions contemplated
hereby by Atari will (i) violate or result in any violation of or be in
conflict with or constitute a default under any term of the Certificate
of Incorporation or By-laws of Atari or of any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to Atari, (ii) require that Atari obtain the consent or
authorization of or waiver by or make a filing with any governmental,
administrative or self-regulatory body or agency or any other person or
entity, other than any such consent, authorization, waiver or filing
which has been duly and validly obtained or made prior to the date
hereof, other than a filing under the HSR Act or (iii) require the
satisfaction or termination of any waiting period under any statute, rule
or governmental regulation applicable to Atari, other than compliance
with the HSR Act.
(d) Capitalization, Issuance of Shares. As of
December 31, 1993, Atari's authorized capital stock consists of
100,000,000 shares of Common Stock, par value $.01 per share, of which
57,214,587 shares were issued and outstanding, all of which are duly
authorized and have been validly issued and are fully paid and non-
assessable. Except as shown on Exhibit 4(d), Atari has not issued any
options, warrants or convertible or exchangeable securities and is not a
party to any other agreements, which require, or upon the passage of
time, the payment of money or the occurrence of any other event, may
require, Atari to issue or sell any of its Common Stock. Upon delivery
to Atari Games of the certificate or certificates evidencing the Shares
against the execution and delivery of this Agreement, the Shares will
have been duly authorized, validly issued, fully paid and nonassessable
and will be free of preemptive or similar rights and no personal
liability will attach to the ownership thereof.
(e) On or before the Closing Date, Atari will arrange
for the listing or supplemental listing of the Shares to be issued to
Atari Games hereunder, as appropriate, on the American Stock Exchange.
(f) SEC Reports and Financial Statements. Atari has
furnished to Atari Games copies of the following reports and financial
statements:
(i) the Annual Reports on Form 10-K of Atari
for the fiscal years ended December 31, 1991 and 1992;
(ii) the Quarterly Reports on Form 10-Q of
Atari for each of the three fiscal quarters ended during 1993; and
(iii) the Current Reports of Atari on Form 8-K
filed after January 1, 1993.
Atari has filed with the Securities and Exchange Commission
("SEC") all reports ("SEC Reports") required to be filed by it under the
Securities Exchange Act of 1934, as amended (the "'34 Act"). None of the
SEC Reports contains, as of the respective dates thereof, any untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made. All
financial statements contained in the SEC Reports have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods indicated ("GAAP"). Each balance sheet
presents fairly in accordance with GAAP the consolidated financial
position of Atari as of the date of such balance sheet, and each
statement of operations and of cash flows presents fairly in accordance
with GAAP the consolidated results of operations and the consolidated
cash flows of Atari for the fiscal periods then ended.
(g) Additional Reports. No event has occurred
requiring, or which with the passage of time will require, the filing of
an SEC Report that has not heretofore been filed and furnished to Atari
Games.
5. Pre-merger Notification. Promptly, and in any event not
later than 5 days after execution of this Agreement, Atari and Atari
Games shall file or cause to be filed notification and report forms with
the Federal Trade Commission and the U.S. Department of Justice under the
HSR Act with respect to Atari Games' acquisition of the Shares.
6. Conditions to Closing.
(a) The obligation of Atari to issue and sell and
Atari Games to purchase the Shares, are subject to the satisfaction or
(to the extent permitted by law) waiver at or prior to the Closing Date
of the condition that, on the Closing Date:
(i) the waiting period under the HSR Act,
including any extensions thereof, shall have expired or terminated;
(ii) there shall be no effective injunction,
writ or preliminary restraining order or any order of any nature
issued by a court or governmental agency of competent jurisdiction
directing that the transactions contemplated hereby or any of them
not be consummated as herein provided, and immediately prior to the
Closing Date, no proceeding or lawsuit with respect to the
transactions contemplated hereby shall have been commenced and be
pending, or be threatened, by any governmental or regulatory
agency;
(iii) the Company shall have received
approval from the American Stock Exchange for the listing or
supplemental listing of the Shares to be issued hereunder; and
(iv) Atari, TWI and Atari Games shall have
executed and delivered the Letter Agreement relating to
registration rights dated as of even date herewith in the form
attached hereto as Exhibit A.
(b) The obligation of Atari Games to purchase, on the
Closing Date, is subject to the satisfaction or waiver at or prior to the
Closing Date of each of the following conditions:
(i) Each of the representations and
warranties of Atari contained in Section 4 hereof shall be true and
correct in all respects as of the date hereof and as of the Closing
Date and Atari shall have performed all obligations to be performed
by it hereunder as of such date and Atari shall deliver a
certificate dated that date and signed by the Chief Executive
Officer or a Senior Vice President of Atari, to that effect;
(ii) Atari Games shall have been furnished
with an opinion of General Counsel of Atari, dated the Closing Date
addressed to Atari Games in such customary form and with such
customary provisions as Atari Games and Atari shall agree to prior
to the closing of the transactions contemplated hereby.
(c) The obligation of Atari to issue the Shares on
the Closing Date is subject to the condition that each of the
representations and warranties of Atari Games contained in Section 3
hereof shall be true and correct in all respects as of the date hereof
and as of the Closing Date, with the same effect as if made at and as of
the time of the Closing and Atari Games shall have performed all
obligations to be performed by it hereunder as of such date and shall
deliver a certificate dated that date signed by a Senior Vice President
or Vice President of Atari Games to that effect.
7. Parties in Interest.
(a) This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors,
assigns and legal representatives.
(b) Except as provided in clause (c) of this Section
7, this Agreement may not be assigned by either party hereto without the
prior written consent of the other party.
(c) Atari Games may, if it has assigned its rights
under the Stock Purchase Agreement, at any time prior to the Closing,
assign any or all of its rights hereunder to one or more of its wholly
owned subsidiaries (which may be organized subsequent to the date hereof)
and any such subsidiaries may assume any or all of Atari Games'
obligations hereunder; provided that in the event of such assumption, (i)
the representations and warranties contained in Section 3 shall be deemed
to be given with respect to such subsidiary and (ii) Atari Games shall
remain jointly and severally liable for such obligations.
8. Specific Performance. The parties hereto acknowledge
that the benefits to them under this Agreement are unique, that they are
willing to enter into this Agreement only upon strict performance by each
other of all of their obligations hereunder and that monetary damage
above would not afford adequate remedy for failure to perform any such
obligations hereunder. Accordingly, the parties hereby consent to
specific performance of their obligations hereunder and waive any
requirement for securing or posting of any bond in connection with the
obtaining of any injunctive or other equitable relief to enforce their
rights hereunder.
9. Termination.
(a) This Agreement may be terminated at any time prior
to the Closing Date,
(i) by mutual written agreement of Atari and
Atari Games;
(ii) by either party hereto (A) if a
preliminary or permanent injunction or other order, decree or
ruling shall have been issued by a court of competent jurisdiction
or by a governmental, regulatory or administrative agency or
commission, that would enjoin, prohibit or materially interfere
with the consummation of this Agreement or the transactions
contemplated herein; or (B) if the Closing Date shall not have
occurred on or before April 30, 1994, unless such party is in
breach of the Agreement at such time;
(iii) by Atari if there shall have been a
breach of the obligations, representations or warranties of Atari
Games hereunder; or
(iv) by Atari Games if there shall have been
a breach of the obligations, representations or warranties of Atari
hereunder.
(b) In the event of termination of this Agreement by
either or both of the parties pursuant to clause (a) of this Section 9,
written notice thereof of shall forthwith be given to the other party
hereto, this Agreement and the transactions contemplated hereby shall be
abandoned, and this Agreement, except for the provisions of this Section
and Section 12(d), shall forthwith become void and have no effect.
(c) Notwithstanding anything to the contrary in clause
(b) above, no termination of this Agreement shall release any party
hereto from any claim arising or derived from its breach of this
Agreement.
10. Further Assurances. The parties shall make, execute,
acknowledge and deliver such other instruments and documents, and take
all such other actions, as may be reasonably required in order to
effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby. The parties, in connection with
entering into this Agreement, performing their obligations hereunder and
taking any and all actions relating hereto, shall comply with all
applicable laws, obtain all required consents and approvals and make all
required filings with any government and promptly provide the other with
all such information as the other may reasonably request in order to be
able to comply with the provisions of this sentence.
11. Miscellaneous.
(a) Amendments and Waivers. This Agreement cannot be
changed or terminated orally and no waiver of compliance with any
provision or condition hereof and no consent provided for herein shall be
effective unless evidenced by an instrument in writing duly executed by
the party hereto sought to be charged with such waiver or consent. No
waiver of any term or provision hereof shall be construed as a further or
continuing waiver of such term or provision or any other term or
provision.
(b) Governing Law; Severability. This Agreement,
together with the rights and obligations of the parties hereunder, shall
be governed by, construed and enforced in accordance with the internal
laws of the State of California. In the event any provision of this
Agreement or the application of any such provision to any party shall be
held by a court of competent jurisdiction to be contrary to law, the
remaining provisions of this Agreement shall remain in full force and
effect.
(c) Notices.All notices, requests, consents,
demands and other communications required or permitted to be given
hereunder shall be in writing and shall be deemed effectively given upon
(x) personal delivery, (y) twenty-four hours after delivery to a courier
service which guarantees overnight delivery or (z) upon receipt of
confirmation after such notice is telecopied, addressed as follows:
(i) if to Atari Games:
Atari Games Corporataion
675 Sycamore Drive
Milpitas, California 95035
Attention: General Counsel
Telecopy No.:
with a copy to:
Time Warner Inc.
75 Rockefeller Plaza
New York, NY 10019
Attention: General Counsel
Telecopy No.: (212) 397-0657
(ii) if to Atari:
Atari Corporation
1196 Borregas Ave.
Sunnyvale, CA 94089
Attention: General Counsel
Telecopy No.: (408) 745-8800
or such other addresses as any party hereto shall have designated by notice
in writing to the other party hereto.
(d) Expenses. Each party hereto shall bear its own
expenses in connection with the entry into and effectuation of this
Agreement.
(e) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) Captions. The captions and headings of this
Agreement are for convenience only and are not to be construed as defining
or limiting the scope or intent of any of the provisions hereof.
(g) Entire Agreement. This Agreement constitutes the
entire agreement and understanding between Atari and Atari Games relating
to the subject matter hereof, and supersedes all prior agreements,
understandings, negotiations and discussions,
whether oral or written relating to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
ATARI CORPORATION
By:/s/Leonard Schrieber
Name: Leonard Schrieber
Title: General Counsel, Director
and Authorized Signatory
ATARI GAMES CORPORATION
By:/s/Dennis Wood
Name: Dennis Wood
Title: Senior Vice President
Atari Games Corporation - Atari Corporation License Agreements
LYNX TITLES DATE EXECUTED MARKETING DATE
Gauntlet 1/5/90 7/4/92
APB 2/8/90 8/8/91
Cyberball 2072 2/8/90 8/8/91
Klax 2/8/90 8/8/91
RoadBlasters 2/8/90 8/8/91
Vindicators 2/8/90 8/8/91
720 2/8/90 8/8/91
Paperboy 4/24/90 10/24/91
S.T.U.N. Runner 6/7/90 12/6/91
Xybots 6/11/90 12/10/91
Hydra 7/9/90 1/9/92
Pit-Fighter 8/28/90 2/28/92
Hard Drivin' 10/19/90 4/18/92
Rampart 7/24/91 1/23/93
Road Riot 4WD 8/19/91 2/19/93
Steel Talons 8/19/91 2/19/93
Relief Pitcher 3/31/92 9/30/93
Escape from the Planet 4/15/92 10/14/93
of Robot Monsters
ST TITLES DATE EXECUTED MARKETING DATE
Steel Talons 8/19/91 2/19/93
Road Riot 4WD 8/19/91 2/19/93
Relief Pitcher UNSIGNED
7800 TITLES DATE EXECUTED MARKETING DATE
Klax 2/8/90 8/8/91
Pit-Fighter 9/11/90 3/10/92
Rampart 7/24/91 1/23/93
Steel Talons 8/20/91 2/20/93
Road Riot 4WD 8/21/91 2/21/93
2600 TITLES DATE EXECUTED MARKETING DATE
Klax 3/8/90 9/8/91
EXHIBIT A
SEE EXHIBIT 4 TO SCHEDULE 13-D/A
Dates Referenced Herein and Documents Incorporated by Reference
↑Top
Filing Submission 0000736157-94-000002 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Tue., Apr. 23, 9:07:38.1am ET 
