Exhibit 10.53


 





 


Amendment #2 to Employment Agreement

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


 


Michael Griffith


 


This Amendment
#2 to Employment Agreement (this “Amendment #2”)
is entered into as of December 15, 2008, by and between Michael Griffith (“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 June 15, 2005,
which was amended on December 1, 2007 (the “Employment
Agreement”).


 


Employee and
Employer desire to further 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:  The Employment Agreement is hereby amended to
delete the penultimate sentence of Section 2(d) 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.


 


2.                                       Termination by Employee:  The Employment Agreement is hereby amended to
delete Section 9(b) in its entirety and replace it with a new Section 9(b) to
read as follows:  You may terminate your
employment under this Agreement upon the occurrence of the following, which
shall remain uncured for a period of 45 days following notice to Employer of
such occurrence: (i) the material diminution of your duties and
responsibilities hereunder in violation of the Agreement, provided that neither
your ceasing to have investor relations, financial reporting or similar
responsibilities, nor the addition of one of more operating units or
subsidiaries by reason of acquisitions or similar transactions that are not
incorporated into Employer, nor the addition of new management and reporting
responsibilities at Employer or Activision by reason of significant increase in
the size and scope of Employer’s core business due to acquisitions or similar
events shall be considered a diminution in your duties or responsibilities in
violation of the Agreement;  (ii) a
material reduction in your Base Salary; (iii) the elimination or material
reduction of your participation in any incentive or benefit plan other than, in
any such case, as a result of the modification, reduction or elimination of
such plan with regard to all senior executives of Employer or as a result of
regulatory, tax or accounting requirements; or (iv) your relocation
without your consent to a location more than twenty-five (25) miles from Los
Angeles County provided that such relocation is materially adverse to you; provided,
that you shall not have the right to terminate your


 


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employment
pursuant to clauses (i), (ii) or (iii) of this Section 9(b) after
such date as your Total Compensation shall equal or exceed the Guarantee Amount
so long as, in the case of (i) above, your position remains as a senior
executive position with the equivalent of divisional leadership
responsibilities.


 


3.                                       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(d)(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(d)(i)(iii) in
a single lump sum on the date such bonus otherwise would have been payable.


 


4.                                       Disability:  Section 9(c) 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, this Agreement shall terminate and, upon said
Disability, Employer shall be obligated to pay you the amounts set forth in
Paragraph 9(e)(ii).  “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.


 


5.                                       Compensation upon Disability:  Section 9(d)(ii) of the Employment
Agreement is hereby amended to provide that Employee shall receive the
compensation provided for in Section 9(d)(ii) in the event of his
Disability, with the compensation provided for under Sections 9(d)(ii)(i),
(ii), (iv) 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(d)(ii)(iii) in
a single lump sum on the date such bonus otherwise would have been payable.


 


6.                                       Performance Termination:  With respect to Section 9(e) of the
Employment Agreement, payment of the severance described in clauses (v) and
(vi) of Section 9(e) shall cease immediately on the date the
total of such payments made to Employee equals the upon Employee’s receipt of
an amount of severance equal to the applicable Pro Rata Guarantee Amount to
which Employee is entitled upon Employee’s termination pursuant to Section 9(e).


 


7.                                       Section 409A:  Section 16(q) of the Employment
Agreement is hereby amended 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


 


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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 #2, 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 #2, then the
terms and provisions of this Amendment #2 shall in all events control.


 


AGREED AND
ACCEPTED:


 


	
  Employee:

  	
   

  	
  Employer:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Activision Publishing, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Michael Griffith

  	
   

  	
  By:

  	
  /s/ George L. Rose

  
	
  Michael Griffith

  	
   

  	
  Name: George L. Rose

  
	
  Date: 11/21/08

  	
   

  	
  Title:   Chief Legal Officer

  
	
   

  	
   

  	
  Date: 12/12/08

  



 


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