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-2 — Exhibit 2 Stock Purchase Agmt Atari/Twi
EX-2 | 1st “Page” of 2 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement") made and entered
into as of the 24th day of March, 1994, by and between ATARI CORPORATION,
a Nevada corporation (the "Company"), and TIME WARNER INC., a Delaware
corporation (the "Purchaser").
The Company desires to sell and Purchaser desires to purchase
an aggregate of 1,500,000 shares (the "Shares") of the Common Stock, par
e "Purchaser").
The Company desires to sell and Purchaser desires to purchase
an aggregate of 1,500,000 shares (the "Shares") of the Common Stock, par
value $.01 per share (the "Common Stock") of the Company, subject to the
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,
adequacy and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
1. Purchase and Sale of the Shares. Subject to the terms
and conditions of this Agreement, at the Closing (as hereinafter
defined), the Company shall sell and deliver the Shares to the Purchaser,
and the Purchaser shall purchase the Shares from the Company at a
purchase price of $8.50 per Share (the aggregate consideration for the
Shares hereinafter referred to as the "Share Purchase Price").
2. The Closing.
(a) The closing of the sale of the Shares (the
"Closing") will, subject to the satisfaction or waiver of all conditions
to the parties' obligations hereunder, take place on such date (the
"Closing Date") as shall be five business days following the expiration
of any applicable waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 and the rules and regulations promulgated
thereunder (the "HSR Act"), or such other date as the parties shall
mutually agree.
(b) At the Closing, the Company will deliver to the
Purchaser or its assignee(s) a certificate or certificates evidencing the
Shares in form and substance reasonably acceptable to the Purchaser or
its assignee(s), against payment of the Share Purchase Price to the
Company as specified below.
(c) At the Closing, the Purchaser shall pay the Share
Purchase Price to the Company in immediately available funds, such funds
to be delivered by wire transfer to an account specified by the Company
to the Purchaser on the Closing Date.
3. Representations, Warranties and Agreements of the
Purchaser. The Purchaser hereby represents and warrants to the Company
and agrees with the Company as follows:
(a) Due Authorization. This Agreement, and the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Purchaser. This Agreement
has been duly executed and delivered by the Purchaser, and constitutes
the legal, valid and binding obligation of the Purchaser, 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 the Purchaser 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 the Purchaser or of any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to the Purchaser, or (ii) require that
the Purchaser 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 the
Purchaser, other than compliance with the HSR Act.
(c) Investment Representation. The purchase of the
Shares and any "Additional Shares" (as defined in Section 5 hereof) by
the Purchaser, will be for investment purposes only and for the sole
account of the Purchaser and not with a view to the redistribution or
resale of any or all of the Shares or Additional Shares. None of the
Shares or Additional 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 (the "'33
Act"). The Purchaser acknowledges that the certificates for the Shares,
and the Additional Shares shall bear a legend with respect to the
transfer or resale of such securities 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 the
Company. The Company hereby represents and warrants to the Purchaser and
agrees with the Purchaser as follows:
(a) Organization. The Company 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 corporation in the jurisdictions where it is required to
qualify to conduct its business as presently conducted. The Company has
the requisite corporate power and authority to own its property and to
carry on its business as now conducted.
(b) Due Authorization. The Company has full power
and authority to execute and deliver this Agreement and, as of the
Closing, will have full power and authority to perform this Agreement and
the transactions contemplated hereby including, without limitation, the
power and authority to issue and sell the Shares, and the Additional
Shares. The Company has duly taken all corporate and other actions
necessary to authorize the execution and delivery of this Agreement and,
as of the Closing, will have 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 and
sale of the Shares and the Additional Shares. This Agreement has been
duly executed and delivered by the Company and this Agreement constitutes
the legal, valid and binding obligation of the Company, 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 the Company 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 the Company or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to the Company, (ii) require that the Company
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 the Company, other
than compliance with the HSR Act.
(d) Capitalization, Issuance of Shares. As of
December 31, 1993, the Company'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), the Company 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, the Company to issue or sell any of its Common Stock. Upon
delivery to the Purchaser of the certificates evidencing the Shares
against receipt of the Share Purchase Price, 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. The Additional Shares when issued by
the Company, pursuant to Section 5 hereof, 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, the Company will
arrange for the listing or supplemental listing, as appropriate, on the
American Stock Exchange of (i) the Shares to be issued to the Purchaser
hereunder and (ii) all of the Additional Shares issuable pursuant to
Section 5 hereof, subject to official notification from the Company's
transfer agent regarding such issuance.
(f) SEC Reports and Financial Statements. The
Company has furnished to Purchaser copies of the following reports and
financial statements:
(i) the Annual Reports on Form 10-K of the
Company for the fiscal years ended December 31, 1991 and 1992;
(ii) the Quarterly Reports on Form 10-Q of
the Company for each of the three fiscal quarters ended during
1993; and
(iii) any Current Reports of the Company on
Form 8-K filed after January 1, 1993.
The Company 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").
All of the SEC Reports filed by the Company comply in all material
respects with the requirements of 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. The financial
statements referred to above and 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 the Company as at 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 the Company 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 the
Purchaser.
5. Contingent Issuance of Additional Shares.
(a) If, after the date hereof, and prior to October
1, 1994, the Company shall issue or enter into a definitive agreement to
issue any shares of Common Stock, at a price of less than $7.50 per
share, or any Securities convertible into or exercisable for shares of
Common Stock, at a conversion or exercise price of less than $7.50 per
share, in a "Qualified Issuance" (as defined below), it shall issue to
the Purchaser (or its assignee), provided that, the Closing hereunder
shall have been completed, that number of additional shares of Common
Stock that shall be equal to the amount by which (i) the quotient of
dividing the Share Purchase Price by the lowest per share sale price (the
"Low Price") in any Qualified Issuance (treating the conversion or
exercise price of any security convertible into or exercisable for Common
Stock as the sale price thereof for this purpose), exceeds (ii) 1,700,000
(such number being the number of shares issuable for the Share Purchase
Price, if the purchase price per share had been $7.50); provided,
however, that the number of shares issuable under this Section 5 shall
not exceed 150,000 shares. All of the foregoing amounts, other than the
Share Purchase Price, shall be subject to proportionate adjustment if, at
any time after the date hereof, and prior to the issuance of shares under
this Section 5, the Company shall have fixed a record date for the
payment of a dividend in shares of its Common Stock or for the
subdivision or combination of its outstanding Common Stock into a greater
or smaller number of shares or for the reclassification or other change
in the outstanding shares of Common Stock. The number of additional
shares of Common Stock, if any, that shall become issuable pursuant to
this Section 5 are referred to in this Agreement as the "Additional
Shares." As used in this Agreement, the term "Qualified Issuance" means
any issuance, after the date hereof and prior to October 1, 1994 (or
prior to January 1, 1995 if pursuant to a definitive agreement entered
into after the date hereof but before October 1, 1994), of shares of
Common Stock or securities exchangeable for or convertible into Common
Stock other than (x) shares of Common Stock issued to current or former
employees of the Company pursuant to a bona fide employee benefit plan
approved or adopted by the Board of Directors of the Company prior to
January 1, 1994 or issued pursuant to the exercise of conversion or
exchange rights of convertible or exchangeable securities of the Company
outstanding prior to January 1, 1994 and disclosed to the Purchaser
pursuant to Schedules to this Agreement and (y) any issuance in a single
transaction or series of related transactions, of less than 150,000
shares of Common Stock. The Company shall, not later than five business
days after the Low Price shall be determinable, deliver to the Purchaser
a certificate signed by the Chief Executive Officer or a Senior Vice
President of the Company, disclosing the Low Price and its computation
and the computation of the number of Additional Shares based thereon.
(b) Any Additional Shares that shall become issuable
pursuant to Section 5(a) shall be issued to the Purchaser or its assignee
not later than ten business days after October 1, 1994, if the Low
Price shall be determinable by such date and, otherwise, not later than
January 6, 1995.
(c) If after the date hereof and prior to October 1,
1994, the Company shall enter into a definitive agreement to issue any
shares of its Common Stock (a "Definitive Agreement") in any transaction
other than one within the scope of clause (x) or clause (y) of Section
5(a), the Company will promptly notify the Purchaser of such event in
writing and provide the Purchaser with a copy of such Definitive
Agreement. The Purchaser will then have the irrevocable option (the
"Purchase Option") to purchase up to 1,500,000 shares of the Common Stock
at the same per share price as provided in such Definitive Agreement.
Such Purchaser's Option shall be exercisable by written notice (a
"Purchaser's Notice") to the Company given at any time within three
months after the date of the Company's Notice. Such Purchaser's Option
shall expire if such Purchaser's Notice is not timely given. If the
Purchaser shall timely exercise such Purchaser's Option, the closing of
such purchase shall be concurrent with the closing of the Definitive
Agreement, provided, however, that if such Definitive Agreement closing
shall occur less than ten business days after the date of the Purchaser's
Notice or before the Purchaser's Notice is exercised, the closing
hereunder shall occur on the tenth business day following the date of the
Purchaser's Notice; and provided further that such closing date shall be
appropriately extended for such additional time, if any, as may
reasonably be required for compliance with the HSR Act. Such sale to the
Purchaser shall be on all the same terms and conditions (including any
registration rights) contained in such Definitive Agreement, except for
the number of shares and the total purchase price and except as provided
below if the consideration in such Definitive Agreement is other than
cash. Until the Purchaser has exercised one or more Purchaser's Options
for an aggregate of 1,500,000 shares, the Company shall give the
Purchaser a Company Notice for each Definitive Agreement entered into
before October 1, 1994, and the Purchaser shall have a Purchaser's Option
with respect to each such Definitive Agreement; provided, however, that
the Purchaser shall not be entitled to purchase pursuant to this Section
5(c) more than an aggregate of 1,500,000 shares of Common Stock.
If the consideration to be paid for any shares of Common Stock
under any Definitive Agreement shall be other than cash, the Company's
Notice shall set forth the Company's good faith estimate of the per share
cash value of such consideration and, subject to the following
procedures, such amount shall be the Purchaser's per share purchase price
under this Section 5(c). Upon request, the Company shall promptly
provide the Purchaser with all information the Purchaser may reasonably
require to make its own evaluation of the per share cash value of such
consideration. If the Purchaser shall disagree with the Company's
estimate, it shall so notify the Company in writing within 15 business
days after receiving all requested information, stating the Purchaser's
estimate of such per share cash value. If the Purchaser fails to notify
the Company of any disagreement within such 15 days, the Company's
estimate shall become final. If the Purchaser does so notify the Company
of disagreement with the Company's estimate and the Company and the
Purchaser fail to agree upon the per share cash value of such
consideration within 15 days after the date of the Purchaser's estimate,
either party may refer such dispute to ENDISPUTE to arbitrate the dispute
pursuant to its procedures for single person arbitration (or by such
other alternative dispute resolution organization and procedure as the
parties may approve). The determination by such arbitration proceeding
shall be final and binding. In the event of any such dispute,
notwithstanding any other provision of this Section 5(c), the Purchaser's
Option with respect to such Definitive Agreement shall not expire until
10 business days after such determination of the per share cash value.
All share numbers and per share price provisions contained in this
Section 5(c) shall be subject to anti-dilution adjustment corresponding
to those set forth in Section 5(a) above.
6. Pre-merger Notification. Promptly, and in any event
not later than 5 days after execution of this Agreement, the Company and
Purchaser 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 the Purchaser's purchase of the Shares
and the Additional Shares, if any.
7. Conditions to Closing.
(a) The obligation of the Company to sell, and the
obligation of the Purchaser 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 conditions 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 all of the Additional Shares; and
(iv) Purchaser, the Company and Atari
Games Corporation shall have entered a Letter Agreement
relating to registration rights in the form attached
hereto as Exhibit A.
(b) The obligation of the Purchaser to
purchase the Shares 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 the Company contained in Section 4 hereof
shall be true and correct in all respects as of the date
hereof and as of the Closing, with the same effect as if
made at and as of the time of Closing and the Company
shall have performed all obligations to be performed by
it hereunder as of such date and the Company shall
deliver a certificate dated that date and signed by the
Chief Executive Officer or a Senior Vice President of
the Company to that effect; and
(ii) Purchaser shall have been furnished
with an opinion of General Counsel of the Company, dated
the day of the Closing, addressed to Purchaser in such
customary form and with such customary provisions as
Purchaser and the Company shall agree to prior to the
Closing.
(c) The obligation of the Company to sell the Shares
on the Closing Date is subject to the condition that each of the
representations and warranties of the Purchaser contained in Section 3
hereof shall be true and correct in all respects as of the date and as of
the Closing Date, with the same effect as if made at and as of the time
of Closing and the Purchaser 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
the Purchaser to that effect.
8. 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
8, this Agreement may not be assigned by either party hereto without the
prior written consent of the other party.
(c) The Purchaser may, at any time prior to the
Closing, assign any or all of its rights hereunder to one or more of the
Purchaser's wholly owned subsidiaries (which may be organized subsequent
to the date hereof) and any of such subsidiaries may assume any or all of
the Purchaser's obligations hereunder; provided that in the event of such
assumption, (i) the representations and warranties contained in Section 3
hereof shall be deemed to be given with respect to such subsidiary and
(ii) the Purchaser shall remain jointly and severally liable for such
obligations.
9. 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.
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. Termination.
(a) This Agreement may be terminated at any time
prior to the Closing Date,
(i) by mutual written agreement of the
Company and the Purchaser;
(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 May 31, 1994, unless such
party is in breach of the Agreement at such time;
(iii) by the Company, if there shall have
been a breach of the obligations, representations or
warranties of the Purchaser hereunder; or
(iv) by the Purchaser, if there shall
have been a breach of the obligations, representations
or warranties of the Company hereunder.
(b) In the event of termination of this Agreement by
either or both of the parties pursuant to clause (a) of this Section 11,
written notice thereof 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 11(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.
12. 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 the Purchaser:
Time Warner Inc.
75 Rockefeller Plaza
New York, NY 10019
Attention: General Counsel
Telecopy No.: (212) 397-0657
(ii) if to the Company:
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 the Company and the Purchaser
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
Title: General Counsel, Director
and Authorized Signatory
TIME WARNER INC.
By:/s/Peter R. Haje
Title: Executive Vice President
EXHIBIT A
SEE EXHIBIT 4 TO SCHEDULE 13-D/A
Dates Referenced Herein and Documents Incorporated by Reference
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