Exhibit 10.70


 





 


Amendment #1 to Employment
Agreement

To Comply with the Provisions of Section 409A of the Internal Revenue Code


 


George Rose


 


This
Amendment #1 to Employment Agreement (this “Amendment #1”)
is entered into as of December 15, 2008, by and between George Rose (“Employee”) and Activision Publishing, Inc. (“Employer”).  All
capitalized terms shall have the same meaning set forth in the Employment
Agreement (as defined below).


 


RECITALS:


 


Employee
and Employer entered into an Employment Agreement dated as of September 11,
2007 (the “Employment Agreement”).


 


Employee
and Employer desire to amend the Employment Agreement in certain respects as
set forth herein in order to comply with the provisions of Section 409A of
the Internal Revenue Code of 1986, as amended.


 


AGREEMENT:


 


The
parties hereby agree to amend the terms of the Employment Agreement as follows:


 


1.                                 Bonus Payment Date.  The Employment Agreement is hereby amended to
delete the third sentence of Section 2(c) in its entirety and replace
it with a new third sentence to read as follows:  The Annual Bonus will be paid at the same
time as bonuses are paid to senior executives, but in no event later than the
15th day of the third month of the year following
the fiscal year to which the Annual Bonus relates.


 


2.                                 Death.  The Employment Agreement is hereby amended to
delete clauses (ii) of Section 11(b) in its entirety and replace
it with a new clause (ii) to read as follows:


 


(ii)                                        Your
heirs or estate shall receive payment of the Bonus Severance in a lump sum at
the same time as bonuses are paid to senior executives, but in no event later
than the 15th day of the third month of the year following
the fiscal year in which your death occurs.


 


3.                                 Termination by the Employer without Cause of
by you for Good Reason.  The Employment Agreement is hereby amended to
delete clauses (ii) through (vii) of Section 11(c) in their
entirety and replace them with new clauses (ii) through (vi) to read
as follows:


 


(ii)                                        You
shall receive payment of an amount equal to the Base Salary (at the rate in
effect on the Termination Date) that you would have received had you remained
employed through the Expiration Date, which amount shall be paid in equal
installments commencing on the first payroll date following the 60th day
following the Termination Date in accordance with the Employer’s payroll
practices in effect on the Termination Date; provided that you shall receive
any installments relating to the 60 day period following the Termination Date
in a 


 

















 


lump sum on the first payroll date
following the 60th day following the Termination Date.


 


(iii)                                     You
shall receive payment of the Bonus Severance in a lump sum at the same time as
bonuses are paid to senior executives, but in no event later than the 15th day of the third month of the year following
the fiscal year in which the Termination Date occurs.


 


(iv)                                    Notwithstanding
any provision of the applicable Equity Award Agreement to the contrary
(including, without limitation, Sections 3 and 21 of the Notice of Restricted
Share Unit Award), all Equity Awards that would have vested during the
twenty-four (24) months following the Termination Date if all applicable
operating income objectives and continued employment criteria had been met
during such twenty-four-month period shall immediately vest as of the 60th day following the Termination Date.  The vested RSUs (including those vesting in
accordance with the prior sentence) shall be paid immediately upon vesting and
all vested Options shall remain exercisable until the earlier of (x) thirty
(30) days after the applicable vesting date and (y) the original
expiration date of the Options.  Any
Equity Awards that do not vest in accordance with this Section 11(c) will
be cancelled immediately.


 


(v)                                       Payment
of the Base Salary continuation, the Bonus Severance and the vesting of the
Equity Awards pursuant to this Section 11(c) are conditioned upon
your execution of a waiver and release in a form prepared by Employer and that
release becoming effective and irrevocable in its entirety within 60 days of
the Termination Date.  Unless otherwise
provided by the Employer, if the release does not become effective and
irrevocable on or prior to the 60th day following the Termination Date, you
shall not be entitled to any payments or benefits pursuant to this Section 11(c) other
than the Basic Severance.


 


(vi)                                    If
you are entitled to receive payments pursuant to Section 9 as a result of
your having become Disabled, then upon a subsequent or concurrent termination
of employment, you shall only be entitled to the payments under Sections 11(c)(i) and
(iii) and not any payment under Sections 11(c)(ii) and (iv).


 


4.                                 Section 409A:  Section 12(s) of the Employment
Agreement is hereby deleted in its entirety and replaced with a new Section 12(s) to
read as follows:  To the extent
applicable, it is intended that the Agreement comply with the provisions of Section 409A.  The Agreement will be administered and
interpreted in a manner consistent with this intent, and any provision that
would cause the Agreement to fail to satisfy Section 409A will have no
force and effect until amended to comply therewith (which amendment may be
retroactive to the extent permitted by Section 409A).  Notwithstanding anything contained herein to
the contrary, you shall not be considered to have terminated employment with
Employer for purposes of the Agreement and no payments shall be due to you
under the Agreement which are payable upon your termination of employment
unless you would be considered to have incurred a “separation from service”
from Employer within the meaning of Section 409A.  To the extent required in order to avoid
accelerated taxation and/or tax penalties under Section 409A, amounts that
would otherwise be payable and benefits that would otherwise be provided
pursuant to the Agreement during the six-month period immediately following
your termination of employment shall instead be paid on the first business day
after the date that is six months following your termination of employment (or
upon your death, if earlier).  In
addition, for purposes of the Agreement, each amount to be paid or benefit to
be provided to you pursuant to the Employment Agreement shall be construed as a
separate identified 


 

















 


                                          payment
for purposes of Section 409A.  With
respect to expenses eligible for reimbursement under the terms of the
Agreement, (i) the amount of such expenses eligible for reimbursement in
any taxable year shall not affect the expenses eligible for reimbursement in
another taxable year and (ii) any reimbursements of such expenses shall be
made no later than the end of the calendar year following the calendar year in
which the related expenses were incurred, except, in each case, to the extent
that the right to reimbursement does not provide for a “deferral of
compensation” within the meaning of Section 409A; provided, however,
that with respect to any reimbursements for any taxes to which you become
entitled under the terms of the Agreement, the payment of such reimbursements
shall be made by Employer no later than the end of the calendar year following
the calendar year in which you remit the related taxes.


 


5.                                 Section 280G:  Section 12(t) of the Employment
Agreement is hereby amended to add a new sentence immediately following the
first sentence of Section 12(t) to read as follows:  To the extent the aggregate of the amounts
constituting the parachute payments are required to be so reduced, the amounts
provided under Section 11 of this Agreement shall be reduced (if
necessary, to zero) with amounts that are payable first reduced first; provided,
however, that in all events the payments provided under Section 11
of this Agreement which are not subject to Section 409A shall be reduced
first.


 


Except
as specifically set forth in this Amendment #1, the Employment Agreement shall
remain unmodified and in full force and effect. 
If any term or provision of the Employment Agreement is contradictory
to, or inconsistent with, any term or provision of this Amendment #1, then the
terms and provisions of this Amendment #1 shall in all events control.


 


 




	
  AGREED
  AND ACCEPTED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Employee:

  	
   

  	
  Employer:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Activision
  Publishing, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s
  George Rose

  	
   

  	
  By:
  

  	
  /s/
  Michael Griffith

  
	
   

  	
   

  	
   

  
	
  George
  Rose

  	
   

  	
  Name:
  

  	
  Michael
  Griffith

  
	
  Date:
  

  	
  December 8,
  2008

  	
   

  	
  Title:
  

  	
  Chief
  Executive Officer and President

  
	
   

  	
   

  	
  Date:
  

  	
  December 9,
  2008