Amended Trademark License Agreement

THIS TRADEMARK LICENSE AGREEMENT (the "Agreement") is entered into on September 4, 2003, between and among ATARI Interactive, Inc., a Delaware corporation, having its principal place of business at 50 Dunham Road, Beverly, MA 01915 ("ATARI Interactive"), Infogrames Entertainment S.A., a company incorporated under the laws of France having its principal place of business at 1 Place Verrazzano, 69252 Cedex 09, France ("Parent"), and Atari, Inc., a Delaware corporation, having its principal place of business at 417 5th Avenue, New York, N.Y. 10016 ("Licensee").


WITNESSETH:
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WHEREAS, ATARI Interactive, which is a wholly-owned subsidiary of the Parent, is the owner of the Trademarks listed or described on Schedule A hereto (collectively the "Trademarks") used in connection with its business;


WHEREAS, ATARI Interactive has the power and authority to grant to Licensee the right and license to use the Trademarks pursuant to this Agreement;


WHEREAS, pursuant to a Trademark License Agreement (the "Original Trademark License"), effective as of May 1, 2003 between ATARI Interactive and Licensee, Licensee obtained from ATARI Interactive a license to use the Trademarks during the Term of the Original Trademark License for the business of developing, producing, publishing and distributing entertainment and edutainment software for p.c. and video game consoles and ancillary merchandise related to video games exclusively.


WHEREAS, in consideration of the obligation of Licensee, as contained in an Agreement Regarding Satisfaction of Debt and License Amendment (the "Satisfaction Agreement") dated September __, 2003 between Licensee and Parent, to issue 2,000,000 shares of common stock of Licensee to ATARI Interactive when and as provided in the Satisfaction Agreement, Licensee and ATARI Interactive are amending and restating the Original Trademark Agreement as set forth herein;


NOW, THEREFORE, in consideration of the promises and mutual covenants, agreements and obligations set forth herein and in the Satisfaction Agreement, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:


1. Grant of License.
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1.1 (a) Subject to the terms and conditions herein, ATARI Interactive hereby grants to Licensee, during the Term (as defined below) the exclusive right and license to use the Trademarks in connection with the Business in the Territory, including, without limitation, in Licensee's own name, on all corporate materials and on all Product packaging, marketing, advertising and promotional materials and for identification purposes for individuals who are associated with the Products and/or the Business.
For the purposes of this Agreement, the term "Business" shall mean the business of developing, producing, publishing and distributing entertainment software and/or edutainment software including for and in connection with online and multi-player applications, interactive television and mobile telephony, and shall include ancillary merchandise and promotional goods related to such software, to the Licensee's brand and to its corporate name (together the "Product(s)") ; for the purposes of this Agreement, the term "Product(s)" shall be construed limitatively and shall exclude the use of the Trademarks for businesses in connection with interactive television, mobile telephony, theme-parks, toys, etc...


(b) For the avoidance of doubt, the rights granted to Licensee hereunder are exclusive, and neither Atari Interactive nor Parent shall have the right, during the Term and with respect to in the Territory, to grant any other license to any third party for the right to use the Trademarks for the Products and/or Business.


1.2 The term "Territory" shall mean the United States of America, Canada and Mexico and any other country which is encompassed by the definition of "Territory" as set forth in the Distribution Agreement between Parent and Licensee.


1.3 Licensee shall have the right to conduct its Business in the Territory directly and/or through any sublicense (which sublicense shall include the right to use the Trademarks in connection therewith, if applicable) that it would ordinarily enter into during the Term in its usual course of Business (e.g., OEM and distribution agreements, etc.), it being understood and agreed that: (a) Licensee shall not grant to any third party any sublicense that will endure for a period beyond December 31, 2013 and, more generally, shall not grant any sublicense on terms and/or conditions that are inconsistent with the terms and conditions of the present Agreement, in particular with respect to the Products, the Business and the Territory; (b) this paragraph shall not be deemed to permit Licensee from granting any trademark license with respect to the Trademarks for use in connection with a third party's business, nor shall Licensee have the right to grant a global trademark license to any third party; and (c) during the Term, on a basis no less frequently than quarterly, Licensee shall furnish ATARI Interactive and Parent with a written summary of any and all such sublicenses it enters into.


1.4 In addition, it is expressly understood and agreed that the rights of Licensee hereunder shall be deemed to include each of Licensee's subsidiaries "controlled" by it, but only for so long as each remains a subsidiary controlled by Licensee, as defined herein, it being understood and agreed that Licensee shall remain liable for the obligations created hereunder with respect to the rights exercised by any such subsidiaries. It is understood and agreed that each of such subsidiaries shall not exercise any right other than the rights contemplated by the present Agreement., in particular with respect to the Products, the Business and the Territory. "Control" shall mean the possession, whether direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.


1.5 For the avoidance of doubt, the parties agree that for the purposes of this Agreement, Oddworld shall not be deemed a subsidiary of Licensee.


1.6 Licensee agrees that notwithstanding the exclusivity in the Territory, ATARI InteractiveLicensor shall have the right during the Term to use the Trademarks in the Territory : (i) for purposes of its corporate denomination and only to the extent that such denomination is sufficiently distinctive from that of Licensee, and (ii) for the Business and the Products but only to the extent it is published or distributed by Licensee in the Territory, pursuant to the carried out through the distribution agreement between Licensee and Parent as of the date hereof..


2 2. Acknowledgment of Ownership.
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2.1 Subject to the limited representations in Section 8 below, Licensee recognizes and acknowledges the validity of ATARI Interactive's rights in the Trademarks and that ATARI Interactive is the owner thereof as so represented by ATARI Interactive herein. Licensee agrees not to challenge the validity of, or ATARI Interactive's title to, the Trademarks, and not to oppose or petition to cancel any applications filed or registrations received in respect of such rights. Licensee's use of the Trademarks shall inure to the benefit of ATARI Interactive.


2.2 All rights and goodwill created by or arising from use of the Trademarks by Licensee shall be and remain the sole and exclusive property of ATARI Interactive, and Licensee does hereby waive and renounce any and all claims to such Trademarks. Licensee further agrees not to perform any act or omission materially adverse to the Trademarks.


2.3 Licensee shall not attempt to register or claim rights in the Trademarks, alone or as part of its own trademark, in the Territory or in jurisdictions foreign thereto, without the prior permission of ATARI Interactive and of Parent. Licensee acknowledges that, notwithstanding the provisions of Section 10.1 below, ATARI Interactive, as the owner of the Trademarks, shall have the right to apply for, and to extend, registrations for the Trademarks throughout the Territory. Licensee agrees to cooperate with ATARI Interactive with respect to the preparation of any application for or extensions of any such registrations, and shall execute any other documents ATARI Interactive may reasonably require to maintain the registrations in effect.


3. Term
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Subject to the terms of Sections 5 and 20 below, the term of the license granted hereunder (the "Term") shall be deemed to commence on the day on which the Original Trademark License became effective to and to continue through and including December 31, 2013.


4. Upfront consideration and Royalties


4.1 The license granted by this Agreement will be royalty free until, and including, December 31, 2008. However, as provided in the Satisfaction Agreement, Licensee shall issue to ATARI Interactive two million (2,000,000) shares of Licensee's common stock.


4.2 Licensee will pay ATARI Interactive a royalty equal to 1% of Licensee's net revenues in each calendar quarter in each of the calendar years ending December 31, 2009, 2010, 2011, 2012 and 2013. Notwithstanding the foregoing, no royalties or other amounts shall be payable to ATARI Interactive on amounts received by Licensee from ATARI Interactive or Parent or any affiliates thereof in connection with sales of Licensee's Products or otherwise.


4.3 For the purposes of this Agreement, L ...