Exhibit 10.65


 





 


Amendment #1 to Employment
Agreement

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


 


Brian Hodous


 


This
Amendment #1 to Employment Agreement (this “Amendment #1”)
is entered into as of December 15, 2008, by and between Brian Hodous (“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 18,
2006 (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.                                 Removal of “Beach Leave” Provision:  The Employment Agreement is hereby amended to
delete Section 2(c) in its entirety.


 


2.                                 Bonus:  The Employment Agreement is hereby amended to
delete the fifth sentence of Section 2(e) in its entirety and replace
it with a new sentence to read as follows: 
The Annual Bonus, if granted, shall be paid to you in a single lump sum
no later than the 15th day of the third month following the end of the fiscal
year to which the bonus relates.


 


3.                                 Disability:  Section 9(b) of the Employment
Agreement is hereby amended, following the first sentence thereof, to read as
follows:  In the event of your Disability
during the term of this Agreement, upon said Disability, Employer shall have
the right, in its sole discretion, to terminate your employment under this
Agreement, subject to the provisions of Paragraph 9(d)(ii) below, and,
whether or not Employer exercises such right to terminate your employment,
shall be obligated to pay you the amounts set forth in Paragraph 9(c)(ii) and
further comply with provisions of Paragraph 9(d)(iii).  “Disability” means that, by reason of any
medically determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of not less
than twelve months, you are unable to engage in any substantial gainful
activity or are receiving income replacement benefits under an accident and
health plan covering employees of the Company for a period of not less than
three months.


 


4.                                 Compensation upon Death:  With respect to the compensation payable to
Employee’s heirs, successors or legal representatives in the event of Employee’s
death, such heirs, successors or legal representatives shall receive the
compensation provided for under Sections 9(c)(i)(i), (ii), (iv) and
(v) of the Employment Agreement in a single lump sum payment within
60 days of the date of Employee’s death and the compensation provided 


 

















 


for under Section 9(c)(i)(iii) in
a single lump sum on the date such bonus otherwise would have been payable.


 


5.                                 Compensation upon Disability:  Section 9(c)(ii) of the Employment
Agreement is hereby amended to provide that Employee shall receive the
compensation provided for in Section 9(c)(ii) in the event of his
Disability, with the compensation provided for under Sections 9(c)(ii)(i),
(ii) and (v) of the Employment Agreement to be paid to
Employee in a single lump sum payment within 60 days of the date of Employee’s
Disability and the compensation provided for under Section 9(c)(ii)(iii) in
a single lump sum on the date such bonus otherwise would have been payable.  Section 9(c)(ii) of the Employment
Agreement is hereby amended further to provide that any amounts to which
Employee becomes entitled under the Employment Agreement upon a subsequent or
concurrent termination of employment shall be reduced by any amounts received
by Employee under this Section 9(c)(ii).


 


6.                                 Section 409A:
 The Employment Agreement is hereby
amended to add a new Section 16(r) to read as follows:  To the extent applicable, it is intended that
the Agreement comply with the provisions of Section 409A of the Internal
Revenue Code of 1986, as amended (“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.


 


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/
  Brian Hodous

  	
   

  	
  By:

  	
  /s/
  George L. Rose

  
	
   

  	
   

  	
   

  
	
  Brian
  Hodous

  	
   

  	
  Name:
  

  	
  George
  L. Rose

  
	
  Date:
  

  	
  11/19/08

  	
   

  	
  Title:
  

  	
  Chief
  Legal Officer

  
	
   

  	
   

  	
  Date:
  

  	
  12/12/08