Exhibit 99.3
California U.S. Holdings, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 ▇▇▇▇▇▇ 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: