Exhibit
10.2


 


VOTING AND LOCK-UP AGREEMENT


 


THIS VOTING AND LOCK-UP AGREEMENT, dated as of December 1, 2007 (this “Agreement”),
is by and among VIVENDI S.A., a societe anonyme organized under the laws of
France (“Vivendi”), ACTIVISION, INC., a Delaware corporation (“Activision”),
and MR. BRIAN G. KELLY, an individual (“Management Stockholder”).


 


RECITALS


 


WHEREAS, concurrently with the execution of
this Agreement, Vivendi, VGAC LLC, a limited liability company organized under
the laws of the State of Delaware, Vivendi Games, Inc., a Delaware corporation
and wholly owned subsidiary of Vivendi (“Games”), Activision and Sego
Merger Corporation, a Delaware corporation and wholly owned subsidiary of
Activision (“Merger Sub”), are entering into a Business Combination
Agreement, dated as of the date hereof (the “Combination Agreement”),
which provides for, among other things, the combination of the respective
businesses of Activision and Games upon the terms and subject to the conditions
set forth therein;


 


WHEREAS, Management Stockholder is the record
holder of such number of outstanding shares, par value $0.000001 per share, of
Activision (“Activision Common Stock”) as is listed on Schedule 1
attached hereto (the “Current Shares”);


 


WHEREAS, as a condition to its willingness to
enter into the Combination Agreement, Vivendi has required that Management
Stockholder execute and deliver this Agreement.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants and agreements herein contained, and
intending to be legally bound hereby, the parties agree as follows:


 


1.
Definitions.


 


(a)           For
purpose of this Agreement, the following terms shall have the meanings set
forth below:


 


“Applicable Securities” means, with respect to any Registration
Statement, the Registrable Securities identified in the Demand Notice or
Piggyback Notice relating to such Registration Statement, and any Registrable
Securities which any other Electing Holder is entitled to, and requests, be
included in such registration statement within 20 days after receiving
such notice.


 


“Commission” means the Securities and Exchange Commission.


 


“Demand Registration” means a registration under the Securities
Act of an offer and sale of Registrable Securities effected pursuant to
Section 6.1 hereof.


 


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“Demand Registration Statement” means a registration statement
filed under the Securities Act by Activision pursuant to the provisions of
Section 6.1 hereof, including the Prospectus contained therein, any
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement.


 


“Effectiveness Period” means, with respect to any Registration
Statement, the period during which such Registration Statement is effective.


 


“Electing Holder” means, with respect to any Registration, each
stockholder that is entitled and elects to sell Registrable Securities pursuant
to such Registration.


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended.


 


“NASD” means the National Association of Securities Dealers,
Inc.


 


“NASD Rules” means the Rules of the NASD, as amended from time
to time.


 


“Person” means any individual, corporation (including
not-for-profit), general or limited partnership, limited liability company,
joint venture, estate, trust, association, organization, Governmental Entity or
other entity of any kind or nature.


 


“Piggyback Demand Registration” means a registration under the
Securities Act of an offer and sale of Registrable Securities effected pursuant
to Section 6.2 hereof.


 


“Prospectus” means the prospectus (including, without
limitation, any preliminary prospectus, any final prospectus and any prospectus
that discloses information previously omitted from a prospectus filed as part
of an effective Registration Statement in reliance upon Rule 430A under
the Act) included in a Registration Statement, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Applicable Securities covered by a Registration Statement and by
all other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by Activision under the Exchange Act and incorporated
by reference therein.


 


“Registrable Securities” means any Common Stock or other
securities acquired by Management Stockholder from Activision other than any such
securities that are Unrestricted Securities.


 


“Registration” means a Demand Registration or Piggyback
Registration.


 


“Registration Expenses” means all expenses incident to
Activision’s performance of its obligations in respect of any Registration of
Registrable Securities pursuant to this Agreement, including but not limited to
all registration, filing and NASD fees, fees of any stock exchange upon which
the Registrable Securities are listed, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the fees and disbursements of
counsel for Activision and of its independent public accountants, including the
expenses of any special audits or “comfort” letters 


 


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required by or incident to such performance and compliance, premiums
and other costs of policies of insurance obtained by Activision against
liabilities arising out of the public offering of Registrable Securities being
registered; provided, however, that
notwithstanding the foregoing Registration Expenses shall not include any fees
and disbursements of counsel retained by Management Stockholder, underwriters,
selling brokers or similar professionals or any transfer taxes or underwriting
discounts, fees or commissions relating to the sale of the Registrable
Securities.


 


“Registration Statement” means a registration statement filed by
Activision with the Commission under the Securities Act pursuant to the
provisions of Section 6.1 or 6.2 hereof, including the Prospectus contained
therein, any amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such registration statement.


 


“Securities Act” means the Securities Act of 1933, as amended.


 


“Shares” shall mean (i) all issued and outstanding
shares of Activision Common Stock owned of record or beneficially by Management
Stockholder as of the date of this Agreement; and (ii) all additional shares of
Activision Common Stock that Management Stockholder purchases or otherwise
acquires beneficial ownership of (including pursuant to the exercise of any
options or other securities) during the period from the date of this Agreement
through the termination of this Agreement pursuant to Section 12.


 


“Subject Securities” shall mean (i) those
securities set forth on Schedule 1 hereto; and (ii) all additional
securities of Activision (including all additional Shares and all additional
options, warrants and other rights to acquire Shares) that Management
Stockholder purchases or otherwise acquires beneficial ownership of during the
period from the date of this Agreement through the termination of this
Agreement pursuant to Section 12.


 


“Transfer” shall mean, with respect to any Subject
Security, any direct or indirect (i) offer, sale, contract to sell, sale of option or contract to purchase,
purchase of any option or contract to sell, grant of any option, right or
warrant to purchase, loan, redemption, tender, cash-out or other transfer or
disposition, (ii) pledge, grant of
lien, preemptive right, security interest, claim, charge or other encumbrance,
or (iii) entering into any agreement or commitment providing for any of the foregoing.


 


“Unrestricted Security” means any
Registrable Security that (i) has been offered and sold pursuant to a
registration statement that has become effective under the Securities Act, (ii)
has been transferred in compliance with Rule 144 under the Securities Act
(or any successor provision thereto) under circumstances after which such
Registrable Securities became freely transferable without registration under
the Securities Act and any legend relating to transfer restrictions under the
Securities Act has been removed or (iii) is transferable pursuant to
paragraph (k) of Rule 144 (or any successor provision thereto).


 


“Voting Shares” shall mean all issued and
outstanding Shares owned of record or beneficially by Management Stockholder or
over which Management Stockholder exercises voting power, in each case, as of
the record date for persons entitled (i) to receive notice of, and


 


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to vote at, the special meeting of the stockholders of Activision
called for the purpose of voting on the matters referred to in Section 3,
or (ii) to take action by written consent of the stockholders of
Activision with respect to the matters referred to in Section 3.
Management Stockholder agrees that any shares of capital stock of Activision
that Management Stockholder purchases or over which Management Stockholder
exercises voting power during the period from the date of this Agreement
through the earlier of the Closing Date and the date of termination of this
Agreement pursuant to Section 11 shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Voting
Shares on the date hereof.


 


(b)           For
purposes of this Agreement, capitalized terms used and not defined herein shall
have the respective meanings ascribed to them in the Combination Agreement.


 


2.
Representations of Management Stockholder.


 


(a)           Management Stockholder hereby represents and warrants to Vivendi as
follows:


 


(i)            Management
Stockholder is the record and beneficial owner (for purposes of this Agreement,
such term shall have the meaning set forth in Rule 13d-3 under the Exchange Act
and the rules and regulations promulgated thereunder, but without regard to any
conditions (including the passage of time) to the acquisition of such shares)
of, and has good and valid and marketable title to, the Current Shares.


 


(ii)           As
of the date hereof, Management Stockholder is not the record or beneficial
owner of any shares of Activision Common Stock or other voting securities of
Activision, other than the Current Shares, and, except as set forth on
Schedule 1 attached hereto, Management Stockholder
holds no options to purchase or rights to subscribe for or otherwise acquire
any securities of Activision, including without limitation any options,
warrants, convertible securities or other securities, calls, commitments,
conversion privileges, preemptive rights, rights of first refusal, rights of
first offer or other rights or agreements outstanding to purchase or otherwise
acquire (whether directly or indirectly) any shares of Activision Common Stock
or any securities convertible into or exchangeable for any shares of Activision
Common Stock or obligating Activision to grant, issue, extend or enter into any
such option, warrant, convertible security or other security, call, commitment,
conversion privilege, preemptive right, right of first refusal, right of first
offer or other right or agreement, and has no other interest in or voting
rights with respect to any such securities of Activision.


 


(iii)          Management
Stockholder has all requisite power and authority necessary to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.


 


(iv)          This
Agreement has been duly executed and delivered by Management Stockholder and,
assuming due execution and delivery of this Agreement by Vivendi, constitutes a
valid and binding agreement of Management Stockholder, enforceable against
Management Stockholder in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and similar Laws of general
applicability relating


 


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to
or affecting creditors’ rights and to general equity principles (regardless of
whether such enforcement is considered in a proceeding at law or in equity).


 


(v)          Other
than as required or permitted by this Agreement, the Current Shares and other
Subject Securities listed on Schedule 1 hereto are now and shall at all times
during this Agreement be owned as set forth on Schedule 1, free and clear of
all pledges, liens, proxies, claims, charges, security interests, preemptive
rights, voting trusts, voting agreements, options, rights of first offer or
refusal and any other encumbrances or arrangements whatsoever with respect to
the ownership, transfer or voting of the Subject Securities in any such case
that would, individually or in the aggregate, reasonably be expected to
materially impair the ability of Management Stockholder to perform his
obligations under this Agreement or prevent or delay the consummation of any of
the transactions contemplated by this Agreement, and there are no outstanding
options, warrants or rights to purchase or acquire, or agreements or
arrangements relating to the voting of, any of the Subject Securities other
than this Agreement.


 


(vi)         The
execution and delivery of this Agreement by Management Stockholder and the
performance by Management Stockholder of its obligations hereunder will not
(including with or without due notice or lapse of time or both):


 


(1)           require
any consent, approval, order, authorization or permit of, or registration or
filing with or notification to, any Governmental Entity or other party, except
for the filing with the SEC of any Schedules 13D or 13G or amendments to
Schedules 13D or 13G and filings under Section 16 of the Exchange Act, as
may be required in connection with this Agreement and the transactions
contemplated hereby;


 


(2)           result
in any violation or the breach of, or constitute a default under, or give rise
to any right of termination, cancellation or acceleration or any payments
under, or result in a loss of a benefit or in the creation or imposition of a
lien under, any of the terms, conditions or provisions of any note, lease,
mortgage, indenture, license, agreement or other instrument or obligation to
which Management Stockholder is a party or by which Management Stockholder or
any of his assets is bound that would, individually or in the aggregate,
reasonably be expected to materially impair the ability of Management Stockholder
to perform his obligations under this Agreement or prevent or delay the
consummation of any of the transactions contemplated by this Agreement; or


 


(3)           violate
the provisions of any order, writ, injunction, judgment, decree, statute, rule
or regulation applicable to Management Stockholder in such a manner as would,
individually or in the aggregate, reasonably be expected to materially impair
the ability of Management Stockholder to perform his obligations under this
Agreement or prevent or delay the consummation of any of the transactions
contemplated by this Agreement.


 


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(vii)         Management
Stockholder understands and acknowledges that Vivendi is entering into the
Combination Agreement in reliance upon Management Stockholder’s execution,
delivery and performance of this Agreement.


 


(b)           Except where expressly stated to be given as of the date hereof only,
the representations and warranties contained in this Agreement shall be made as
of the date hereof and as of each date from the date hereof through and
including the date of termination of this Agreement.


 


3.
Agreement to Vote Shares. During the period commencing on the date
hereof and continuing until the earlier to occur of the Closing and the
termination of this Agreement in accordance with its terms, Management
Stockholder agrees to: (i) appear (in person or by proxy) at any annual or
special meeting of the stockholders of Activision for the purpose of obtaining
a quorum; and (ii) vote (or, if requested, execute proxies with respect
to), or execute a written consent or consents if stockholders of Activision are
requested to vote their shares through the execution of an action by written
consent in lieu of any such annual or special meeting of stockholders of
Activision, all Voting Shares: (a) in favor of approval of the Combination
Agreement and the transactions contemplated thereby at every meeting (or in
connection with any action by written consent) of the stockholders of
Activision at which such matters are considered and at every adjournment or
postponement thereof; (b) against (1) any action, proposal,
transaction or agreement which would reasonably be expected to result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of Activision under the Combination Agreement or of Management
Stockholder under this Agreement and (2) any Activision Acquisition
Proposal. Notwithstanding the foregoing, Management Stockholder shall remain
free to vote (or execute consents or proxies with respect to) the Voting Shares
with respect to any matter not covered by this Section 3 in any manner he
deems appropriate; provided,
that such vote (or execution of consents or proxies with respect thereto) would
not reasonably be expected to interfere with, delay, discourage, adversely
affect or inhibit the timely consummation of the transactions contemplated by
the Combination Agreement.


 


4.
Representations of Vivendi. Vivendi hereby represents and warrants to
Management Stockholder that:


 


(a)           Vivendi is a corporation duly organized, validly existing and in good
standing under the laws of France and has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.


 


(b)           The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite corporate action and no other corporate proceedings on the
part of Vivendi are necessary to authorize this Agreement or the consummation
of the transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by Vivendi and is a valid and binding agreement
of Vivendi enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and similar Laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles (regardless of whether such enforcement is considered in a
proceeding at law or in equity).


 


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(c)           The execution, delivery and performance by Vivendi of this Agreement
and the consummation by Vivendi of the transactions contemplated hereby do not
and shall not (including with notice or lapse of time or both):


 


(i)            contravene
or conflict with the certificate of incorporation or the bylaws (or similar
organizational documents) of Vivendi;


 


(ii)           require
any consent, approval, order, authorization or permit of, or registration or filing
with or notification to, any Governmental Entity or other party;


 


(iii)          result
in any violation or the breach of, or constitute a default under, or give rise
to any right of termination, cancellation or acceleration or any payments
under, or result in a loss of a benefit or in the creation or imposition of a
lien under, any of the terms, conditions or provisions of any note, lease,
mortgage, indenture, license, agreement or other instrument or obligation to
which Vivendi is a party or by which Vivendi or any of its assets may be bound
that would, individually or in the aggregate, reasonably be expected to
materially impair the ability of Vivendi to perform its obligations under this
Agreement or prevent or delay the consummation of any of the transactions
contemplated by this Agreement; or


 


(iv)          violate
the provisions of any order, writ, injunction, judgment, decree, statute, rule
or regulation applicable to Vivendi in such a manner as would, individually or
in the aggregate, reasonably be expected to materially impair the ability of
Vivendi to perform its obligations under this Agreement or prevent or delay the
consummation of any of the transactions contemplated by this Agreement.


 


5.
Restrictions on Transfer.


 


(a)           Subject to the terms of this Agreement, for a period beginning on the
date hereof and continuing until the earlier of the Closing and the termination
of this Agreement in accordance with its terms (the “Voting Period”),
Management Stockholder agrees that, without the prior written consent of Vivendi,
he shall not: (i) Transfer any Subject Securities or Management Stockholder’s
voting or economic interest therein, (ii) grant any proxies, options or rights
of first offer or refusal with respect to any of the Subject Securities, or
(iii) enter into any voting agreement, voting trust or other voting
arrangement with respect to any of the Subject Securities.


 


(b)           Subject to the terms of
this Agreement, for a period beginning on the Closing Date and continuing until
the date which is 120 days after the Closing Date (the “Lock-Up Period”),
Management Stockholder agrees that,
without the prior written consent of Vivendi, he shall not: (i) Transfer
(including pursuant to the Tender Offer) any Subject Security or (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of any Subject Security,
whether any such transaction described in clause (i) or (ii) of this Section
5(b) is to be settled by delivery of Activision Common Stock or such other
securities, in cash or otherwise.


 


(c)           Notwithstanding the foregoing, the provisions of Sections 5(a) and (b) shall
not apply to Transfers of Subject Securities by gift, will or intestacy,
including, without limitation,


 


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transfers by gift, will or intestacy to family members of Management
Stockholder or to a settlement or trust established under the laws of any
country (a “Permitted Transfer”);
provided, that in the event of any Permitted Transfer, the transferee
shall enter into an agreement substantially in the form hereof (or a
joinder hereto in a form reasonably satisfactory to Vivendi) and agrees to be
bound by its terms; provided, however, that
notwithstanding such Transfer, Management Stockholder shall continue to be
liable for any breach by such transferee of its agreements and covenants
hereunder or thereunder. Management Stockholder also agrees and consents
to the entry of stop transfer instructions with Activision’s transfer agent and
registrar against the transfer of the undersigned’s Subject Securities except
in compliance with the terms hereof.


 


(d)           Notwithstanding
the foregoing, Vivendi and
Management Stockholder agree that, during the Lock-Up Period, Management
Stockholder may, without the prior written consent of Vivendi, sell Subject
Securities during the Lock-Up Period as follows:


 


(i)            Management Stockholder may Transfer
(including pursuant to the Tender Offer) up to 33-1/3% of the Current Shares;
and


 


(ii)           Management Stockholder may Transfer
(including pursuant to the Tender Offer) up to 33-1/3% of the Subject
Securities (other than the Current Shares) that are owned by Management
Stockholder on the Closing Date (which percentage shall be calculated based on
the number of Shares issuable upon exercise or otherwise underlying or in
respect of such Subject Securities).


 


6.
Registration Rights.


 


6.1.
Demand Registration.


 


(a)           Following the Lock-Up Period, Management
Stockholder shall have the right, subject to the terms of this Agreement, to
require Activision to register for offer and sale under the Securities Act all
or a portion of the Registrable Securities then owned by Management Stockholder
subject to the requirements and limitations in this Section 6.1. In order
to exercise such right, Management Stockholder must give written notice to
Activision (a “Demand Notice”) requesting that Activision register under
the Securities Act the offer and sale of Registrable Securities (i) having a
market value on the date the Demand Notice is received (the “Demand Date”)
of at least $50 million based on the then prevailing market price, or (ii)
representing all of the Registrable Securities then held by Management
Stockholder. Upon receipt of the Demand Notice, Activision shall (i) promptly
notify such other Persons as may be entitled to participate in such sale of the
receipt of such Demand Notice, (ii) prepare and file with the Commission
as soon as practicable and in no event later than 90 days after the Demand
Date a Demand Registration Statement relating to the offer and sale of the
Applicable Securities on any available form agreed to by the Management
Stockholder and Activision for which Activision then qualifies (which may
include a “shelf” Registration Statement under Rule 415 promulgated under
the Securities Act solely for use in connection with delayed underwritten
offerings under Rule 415 promulgated under the Securities Act) and
(iii) use reasonable efforts to cause such Demand Registration Statement
to be declared effective


 


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under the Securities Act as promptly as practicable. Activision shall
use reasonable efforts to have each Demand Registration Statement remain
effective until the earlier of (i) one year (in the case of a shelf Demand
Registration Statement) or 60 days (in the case of any other Demand
Registration Statement) from the Effective Time of such Registration Statement
and (ii) such time as all of the Applicable Securities have been disposed
of by the Electing Holders.


 


(b)           Activision shall have the right to postpone
(or, if necessary or advisable, withdraw) the filing, or to delay the
effectiveness, of a Registration Statement or offers and sales of Applicable
Securities registered under a shelf Demand Registration Statement if a majority
of the Independent Directors (as defined in Activision’s bylaws) of Activision
determines in good faith that the sale of Registrable Securities covered by
such Registration Statement (i) would interfere with any pending financing, acquisition,
corporate reorganization or other corporate transaction involving Activision or
any of its Subsidiaries, (ii) would require disclosure of any event or
condition that such directors determine would be disadvantageous for Activision
to disclose and which Activision is not otherwise required to disclose at such
time, or (iii) would otherwise be materially detrimental to Activision and its
Subsidiaries, taken as a whole, and furnishes to the Electing Holders a copy of
a resolution of such Independent Directors setting forth such determination; provided, however, that no single postponement shall exceed
120 days in the aggregate. Activision shall advise the Electing Holders of
any such determination as promptly as practicable.


 


(c)           Notwithstanding anything in this
Section 6.1, Activision shall not be obligated to take any action under
this Section 6.1:


 


(i)            with respect to more than two (2) Demand
Registration Statements relating to underwritten offerings which have become
effective and which covered all the Registrable Securities requesting to be
included therein; or


 


(ii)           with respect to more than two (2) Demand
Registration Statements which have become and remained effective as required by
this Agreement in a twenty-four month period.


 


(d)           Activision may include in any registration
requested pursuant to Section 6.1(a) hereof other securities for sale for
its own account or for the account of another Person, subject to the following
sentence. In connection with an underwritten offering, if the managing
underwriter advises Activision and the Electing Holders that in its good faith
view the number of securities requested to be registered exceeds the maximum
number which can be sold in such offering without materially adversely
affecting the pricing, timing or likely success of the offering (with respect
to any offering, the “Maximum Number”), Activision shall include such
Maximum Number in such Registration Statement as follows: (i) first, the
Applicable Securities requested to be registered by Management Stockholder,
(ii) second, the Applicable Securities requested to be included by any
other Electing Holders, if any, (iii) third, any securities proposed to be
included by Activision and (iv) fourth, any other securities requested to
be included in such Registration Statement. For purposes of this Agreement, an
“underwritten offering”


 


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shall be an offering pursuant to which securities are sold to a
broker-dealer or other financial institution or group thereof for resale by
them to investors.


 


(e)           Management Stockholder shall have the right
to withdraw his Demand Notice (in which case such Demand Notice shall be deemed
never to have been given for purposes of Section 6.1(a) or Section 6.1(c))
(i) at any time prior to the time the Demand Registration Statement has
been declared or becomes effective if Management Stockholder reimburses
Activision for the reasonable out-of-pocket expenses incurred by it prior to
such withdrawal in effecting such Registration, (ii) upon the issuance by
the Commission or any court or other governmental agency or authority of a stop
order, injunction or other order which prohibits or interferes with such
Registration, (iii) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration are not satisfied other than as a result of default by Management
Stockholder, or (iv) if Activision exercises any of its rights under
Section 6.1(b) of this Agreement. If Management Stockholder withdraws a
Demand Notice pursuant to this Section 6.1(e) and Activision nevertheless
decides to continue with the Registration as to securities other than the
Applicable Securities, then Management Stockholder shall be entitled to participate
in such Registration pursuant to Section 6.2 hereof, but in such case the
Intended Offering Notice must be given to Management Stockholder at least 10
business days prior to the anticipated filing date of the Registration
Statement and Management Stockholder shall be required to give the Piggyback
Notice no later than five (5) business days after Activision’s delivery of such
Intended Offering Notice.


 


(f)            If any Registration pursuant to this
Section 6.1 shall relate to an underwritten offering, Management
Stockholder and Activision shall select a joint lead managing underwriter
reasonably acceptable to the other party, which consent shall not be
unreasonably withheld, conditioned or delayed, and the right of any other
stockholder to participate therein shall be conditioned upon such stockholder’s
participation in the underwriting agreements and arrangements required by this
Agreement.


 


6.2.
Piggyback Registrations.


 


(a)           Following the Lock-Up Period, if at any time
Activision intends to file on its behalf or on behalf of any holder of its
securities a Registration Statement under the Securities Act in connection with
a public offering of any securities of Activision (other than a registration
statement on Form S-8 or Form S-4 or their successor forms), then Activision
shall give written notice of such intention (an “Intended Offering Notice”)
to Management Stockholder at least 10 business days prior to the date such
Registration Statement is filed. Such Intended Offering Notice shall offer to
include in such Registration Statement for offer to the public the number or
amount of Registrable Securities as Management Stockholder may request, subject
to the conditions set forth herein, and shall specify, to the extent then
known, the number and class of securities proposed to be registered, the
proposed date of filing of such Registration Statement, any proposed means of
distribution of such securities, and any proposed managing underwriter or
underwriters of such securities. If Management Stockholder elects to have his
Registrable Securities offered and sold pursuant to such Registration
Statement, he


 


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shall so advise Activision in writing (such written notice from
Management Stockholder being a “Piggyback Notice”) not later than seven
(7) business days after the date on which Management Stockholder received the
Intended Offering Notice, setting forth the number of Registrable Securities
that Management Stockholder desires to have offered and sold pursuant to such
Registration Statement. Upon the request of Activision, Management Stockholder
shall enter into such underwriting, custody and other agreements as shall be
customary in connection with registered secondary offerings or necessary or
appropriate in connection with the offering. Management Stockholder shall be
permitted to withdraw all or part of his Applicable Securities from any
Registration pursuant to this Section 6.2 at any time prior to the sale
thereof (or, if applicable, the entry into a binding agreement for such sale).
If any Registration pursuant to this Section 6.2 shall relate to an
underwritten offering, the right of Management Stockholder to participate
therein shall be conditioned upon Management Stockholder’s participation in the
underwriting agreements and arrangements required by this Agreement.


 


(b)           In connection with an underwritten offering,
if the managing underwriter or underwriters advise Activision that in its or
their good faith view the number of securities proposed to be registered
exceeds the Maximum Number with respect to such offering, Activision shall
include in such Registration such Maximum Number as follows: (i) first,
the securities that Activision proposes to sell, and (ii) second, the
Applicable Securities requested to be included in such Registration pro rata among such other holders of
securities of Activision who have requested that their securities be included
in such Registration Statement and who hold contractual registration rights
with respect to such securities, based on the respective amount of Applicable
Securities owned by them.


 


(c)           The rights of Management Stockholder
pursuant to Section 6.1 hereof and this Section 6.2 are cumulative,
and the exercise of rights under one such Section shall not exclude the subsequent
exercise of rights under the other such Section (except to the extent expressly
provided otherwise herein). Notwithstanding anything herein to the contrary,
Activision may abandon and/or withdraw any registration as to which rights
under Section 6.2 may exist (or have been exercised) at any time and for
any reason without liability hereunder. In such event, Activision shall notify
Management Stockholder. No Registration of Registrable Securities effected
pursuant to a request under this Section 6.2 shall be deemed to be, or
shall relieve Activision of its obligation to effect, a Registration upon
request under Section 6.1 hereof. Activision may enter into other
registration rights agreements; provided,  however, that the rights and benefits of a holder of
securities of Activision with respect to registration of such securities as
contained in any such other agreement shall not be inconsistent with, or
adversely affect, the rights and benefits of holders of Registrable Securities
as contained in this Agreement.


 


6.3.
Registration Procedures. In connection with a Registration
Statement, the following provisions shall apply:


 


(a)           Management Stockholder shall in a timely
manner (i) deliver to Activision and its counsel a duly completed copy of
any form of notice and questionnaire reasonably


 


11

















 


requested by Activision and (ii) provide Activision and its
counsel with such other information as to himself as may be reasonably
requested by Activision in connection with Activision’s obligations under
federal and state securities laws.


 


(b)           Activision shall furnish to Management
Stockholder, prior to the Effective Time, a copy of the Registration Statement
initially filed with the Commission, and shall furnish to Management
Stockholder copies of each amendment thereto and each amendment or supplement,
if any, to the Prospectus included therein.


 


(c)           Activision shall promptly take such action
as may be reasonably necessary so that (i) each of the Registration Statement
and any amendment thereto and the Prospectus forming part thereof and any
amendment or supplement thereto (and each report or other document incorporated
therein by reference in each case), when it becomes effective, complies in all
material respects with the Securities Act and the Exchange Act and the
respective rules and regulations thereunder, (ii) each of the Registration
Statement and any amendment thereto does not, when it becomes effective,
contain an 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 not
misleading and (iii) each of the Prospectus forming part of the
Registration Statement, and any amendment or supplement to such Prospectus,
does not at any time during the period during which Activision is required to
keep a Registration Statement continuously effective under Section 6.1(a)
(other than any period during which it is entitled and elects to postpone
offers and sales under Section 6.1(b) (each, a “Postponement Period”))
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.


 


(d)           Activision shall, promptly upon learning
thereof, advise Management Stockholder, and shall confirm such advice in
writing if so requested by any Management Stockholder:


 


(i)            when the Registration Statement and any
amendment thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become effective;


 


(ii)           of any request by the Commission for
amendments or supplements to the Registration Statement or the Prospectus
included therein or for additional information;


 


(iii)          of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for such purpose;


 


(iv)          of the receipt by Activision of any
notification with respect to the suspension of the qualification of the
securities included in the Registration Statement for sale in any jurisdiction
or the initiation of any proceeding for such purpose;


 


12

















 


(v)           following the effectiveness of any
Registration Statement, of the happening of any event or the existence of any
state of facts that requires the making of any changes in the Registration
Statement or the Prospectus included therein so that, as of such date, such
Registration Statement and Prospectus do not contain an untrue statement of a
material fact and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading (which advice shall be accompanied by an instruction to Management
Stockholder to suspend the use of the Prospectus until the requisite changes
have been made which instruction Management Stockholder agrees to follow); and


 


(vi)          if at any time any of the representations and
warranties of Activision contemplated by paragraph (l) below cease to be
true and correct or will not be true and correct as of the closing date for the
offering.


 


(e)           Activision
shall use its commercially reasonable efforts to prevent the issuance, and if
issued to obtain the withdrawal, of any order suspending the effectiveness of
the Registration Statement at the earliest possible time.


 


(f)            Activision
shall furnish to Management Stockholder, without charge, at least one copy of
the Registration Statement and all post-effective amendments thereto, including
financial statements and schedules, and, if Management Stockholder so requests
in writing, all reports, other documents and exhibits that are filed with or
incorporated by reference in the Registration Statement.


 


(g)           Activision
shall, during the period during which Activision is required to keep a
Registration Statement continuously effective under Section 6.1(a) or
elects to keep effective under Section 6.2(a), deliver to Management
Stockholder and any managing underwriter or agent, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) included in
the Registration Statement and any amendment or supplement thereto and other
documents as they may reasonably request to facilitate the distribution of the
Registrable Securities; and Activision consents (except during the continuance
of any event described in Section 6.3(d)(v) hereof) to the use of the
Prospectus, with any amendment or supplement thereto, by Management Stockholder
and any managing underwriter or agent in connection with the offering and sale
of the Applicable Securities covered by the Prospectus and any amendment or
supplement thereto during such period.


 


(h)           Prior
to any offering of Applicable Securities pursuant to the Registration
Statement, Activision shall (i) use reasonable efforts to cooperate with
Management Stockholder and his counsel in connection with the registration or
qualification of such Applicable Securities for offer and sale under any
applicable securities or “blue sky” laws of such jurisdictions within the
United States as Management Stockholder may reasonably request, (ii) use
reasonable efforts to keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers and sales in
such jurisdictions for the period during which Activision is required to keep a
Registration Statement continuously effective under Section 6.1(a) or
elects to keep effective under Section 6.2(a) and (iii) take any and
all other actions reasonably requested


 


13

















 


by Management Stockholder which are necessary or advisable to enable
the disposition in such jurisdictions of such Applicable Securities; provided, however, that nothing contained in this
Section 6.3(h) shall require Activision to (A) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 6.3(h) or
(B) take any action which would subject it to general service of process
or taxation in any such jurisdiction if it is not then so subject.


 


(i)            Activision
shall, if requested by Management Stockholder, use commercially reasonable
efforts to cause all such Applicable Securities to be sold pursuant to the
Registration Statement to be listed on any securities exchange or automated
quotation service on which securities of Activision are listed or quoted.


 


(j)            Activision
shall cooperate with Management Stockholder to facilitate the timely
preparation and delivery of certificates representing Applicable Securities to
be sold pursuant to the Registration Statement, which certificates shall comply
with the requirements of any securities exchange or automated quotation service
on which any securities of Activision are listed and quoted, and which
certificates shall be free of any restrictive legends and in such permitted
denominations and registered in such names as Management Stockholder or any
managing underwriter or agent may request in connection with the sale of
Applicable Securities pursuant to the Registration Statement.


 


(k)           Upon
the occurrence of any fact or event contemplated by Section 6.3(d)(v)
hereof, Activision shall promptly prepare a post-effective amendment or
supplement to the Registration Statement or the Prospectus, or any document
incorporated therein by reference, or file any other required document so that,
after such amendment or supplement, such Registration Statement and Prospectus
do not contain an untrue statement of a material fact and do not omit to state
a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading; provided, however, that Activision shall not be required to take
any such action during a Postponement Period (but it shall promptly
thereafter). In the event that Activision notifies Management Stockholder of
the occurrence of any fact or event contemplated by Section 6.3(d)(v) hereof,
Management Stockholder agrees, as a condition of the inclusion of any of
Management Stockholder’s Applicable Securities in the Registration Statement,
to suspend the use of the Prospectus until the requisite changes to the
Prospectus have been made.


 


(l)            Activision
shall, together with Management Stockholder, enter into such customary
agreements (including an underwriting agreement in customary form in the event
of an underwritten offering) and take all other reasonable and appropriate
action in order to expedite and facilitate the registration and disposition of
the Registrable Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures substantially similar to those set forth in Section 6.5
hereof with respect to all parties to be indemnified pursuant to
Section 6.5 hereof. In addition, in such agreements, Activision will make
such representations and warranties to Management Stockholder and the
underwriters or agents, if any, in form, substance and scope as are customarily
made by issuers in primary equity offerings. Management Stockholder shall be
party to such agreements and may, at their option, require that any or all of
the representations and warranties by, and the other agreements on the part of,
Activision to and for the benefit of such


 


14

















 


underwriters shall also be made to and for the benefit of Management
Stockholder to the extent applicable. Management Stockholder shall not be
required to make any representations or warranties to or agreements with
Activision or the underwriters or agents other than representations, warranties
or agreements relating to Management Stockholder, his Registrable Securities
(including ownership and title) and his intended method of distribution or any
other representations required by law or reasonably requested by the
underwriters.


 


(m)          If
requested by the managing underwriter in any underwritten offering, Activision
and Management Stockholder will agree to such limitations on sale, transfer,
short sale, hedging, option, swap and other transactions relating to any
securities of Activision or convertible or exchangeable for securities of
Activision (including any sales under Rule 144 of the Securities Act), and
public announcements relating to the foregoing as are then customary in
underwriting agreements for registered underwritten offerings; provided, however, that such limitations shall not continue
beyond the 90th day after the effective date of the Registration Statement in
question or, if later, the commencement of the public distribution of
securities to the extent timely notified in writing by the managing
underwriters.


 


(n)           Activision
shall use commercially reasonable efforts to:


 


(i)            (A) make reasonably available for
inspection by Management Stockholder, any underwriter participating in any
disposition pursuant to the Registration Statement, and any attorney,
accountant or other professional retained by Management Stockholder or any such
underwriter all relevant financial and other records, pertinent corporate
documents and properties of Activision and its subsidiaries, and (B) cause
Activision’s officers, directors and employees to participate in road shows or
other customary marketing activities and to supply all information reasonably
requested by Management Stockholder or any such underwriter, attorney,
accountant or professional in connection with the Registration Statement as is
customary for similar due diligence examinations; provided, however,
that all records, information and documents that are designated by Activision,
in good faith, as confidential shall be kept confidential by Management Stockholder
and any such underwriter, attorney, accountant or agent, unless such disclosure
is required in connection with a court proceeding after such advance notice to
Activision (to the extent practicable in the circumstances) so as to permit
Activision to contest the same, or required by law, or such records,
information or documents become available to the public generally or through a
third party without an accompanying obligation of confidentiality; and provided, further that, the foregoing inspection and information
gathering shall, to the greatest extent possible, be coordinated on behalf of
Management Stockholder and the other parties entitled thereto by one counsel
designated by and on behalf of Management Stockholder and such other parties;


 


(ii)           in connection with any underwritten
offering, obtain opinions of counsel to Activision (which counsel and opinions
(in form, scope and substance) shall be reasonably satisfactory to the
underwriters) addressed to the underwriters, covering the matters customarily
covered in opinions requested in secondary underwritten offerings of equity
securities, to the extent reasonably required by the applicable underwriting
agreement;


 


15

















 


(iii)          in connection with any underwritten offering,
obtain “cold comfort” letters and updates thereof from the independent public
accountants of Activision (and, if necessary, from the independent public
accountants of any Subsidiary of Activision or of any business acquired by
Activision for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to
Management Stockholder (if Management Stockholder has provided such letter,
representations or documentation, if any, required for such cold comfort letter
to be so addressed) and the underwriters, in customary form and covering
matters of the type customarily covered in “cold comfort” letters in connection
with secondary underwritten offerings of equity securities;


 


(iv)          in connection with any underwritten offering,
deliver such documents and certificates as may be reasonably requested by
Management Stockholder and the underwriters, if any, including, without
limitation, certificates to evidence compliance with any conditions contained
in the underwriting agreement or other agreements entered into by Activision;
and


 


(v)           use its best efforts to comply with all
applicable rules and regulations of the Commission and make generally available
to its security holders, as soon as reasonably practicable (but not more than
fifteen months) after the effective date of the Registration Statement, an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act and the rules and regulations promulgated thereunder.


 


(o)           Not
later than the effective date of the applicable Registration Statement,
Activision shall provide a CUSIP number for all Registrable Securities and
provide the applicable transfer agent with printed certificates for the
Registrable Securities which are in a form eligible for deposit with The
Depository Trust Company.


 


(p)           Activision
shall cooperate with Management Stockholder and each underwriter or agent
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
NASD.


 


(q)           As
promptly as practicable after filing with the Commission of any document which
is incorporated by reference into the Registration Statement or the Prospectus,
Activision shall provide copies of such document to counsel for Management
Stockholder and to the managing underwriters and agents, if any.


 


(r)            Activision
shall provide and cause to be maintained a transfer agent and registrar for all
Registrable Securities covered by such Registration Statement from and after a
date not later than the effective date of such Registration Statement.


 


(s)           Activision
shall use reasonable best efforts to take all other steps necessary to effect
the timely registration, offering and sale of the Applicable Securities covered
by the Registration Statements contemplated hereby.


 


6.4.
Registration Expenses. Activision shall bear all of the
Registration Expenses and all other expenses incurred by it in connection with
the performance of its obligations under this Agreement. Management Stockholder
shall bear all other expenses relating to any Registration


 


16

















 


or sale in which Management Stockholder participates, including without
limitation the fees and expenses of counsel and any applicable underwriting
discounts, fees or commissions.


 


6.5.
Indemnification and Contribution.


 


(a)           Upon
the Registration of Applicable Securities pursuant to Section 6.1 or
Section 6.2 hereof, Activision shall indemnify and hold harmless Management
Stockholder and each underwriter, selling agent or other securities
professional, if any, which facilitates the disposition of Applicable
Securities, and each of their respective officers and directors and each person
who controls such underwriter, selling agent or other securities professional
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (each such Person, an “Indemnified Person”) against
any losses, claims, damages or liabilities, joint or several, to which such
Indemnified Person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under
which such Applicable Securities are to be registered under the Securities Act,
or any Prospectus contained therein, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and Activision hereby agrees to reimburse
such Indemnified Person for any reasonable and documented legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided, however, that Activision shall not be liable to any
such Indemnified Person in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such Registration Statement or Prospectus, or amendment or supplement, in
reliance upon and in conformity with written information furnished to
Activision by such Indemnified Person or its agent expressly for use therein;
and provided, further, that Activision
shall not be liable to the extent that any loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon the use of any Prospectus after such time as Activision has advised
Management Stockholder in writing that a post-effective amendment or supplement
thereto is required, except such Prospectus as so amended or supplemented.


 


(b)           Management
Stockholder agrees, as a consequence of the inclusion of any of his Applicable
Securities in such Registration Statement, and shall cause each underwriter,
selling agent or other securities professional, if any, which facilitates the
disposition of Applicable Securities to agree, as a consequence of facilitating
such disposition of Applicable Securities, severally and not jointly, to
indemnify and hold harmless Activision, its directors and officers and each
person, if any, who controls Activision within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any losses, claims, damages or liabilities to which Activision or such
other persons may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement or
Prospectus, or any amendment or supplement, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement or


 


17

















 


alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to
Activision by Management Stockholder, underwriter, selling agent or other
securities professional, as applicable, expressly for use therein; provided, however, that notwithstanding anything herein to the
contrary the maximum aggregate amount that Management Stockholder shall be
required to pay pursuant to this Section 6.5 in respect of any
Registration shall be the net proceeds received by Management Stockholder from
sales of Registrable Securities pursuant to such Registration.


 


(c)           Promptly
after receipt by any Person entitled to indemnity under Section 6.5(a) or
(b) hereof (an “Indemnitee”) of any notice of the commencement of
any action or claim, such Indemnitee shall, if a claim in respect thereof is to
be made against any other person under this Section 6.5 (an “Indemnitor”),
notify such Indemnitor in writing of the commencement thereof, but the omission
so to notify the Indemnitor shall not relieve it from any liability which it
may have to any Indemnitee except to the extent the Indemnitor is actually
prejudiced thereby. In case any such action shall be brought against any
Indemnitee and it shall notify an Indemnitor of the commencement thereof, such
Indemnitor shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other Indemnitor similarly notified, to assume the
defense thereof with counsel reasonably satisfactory to such Indemnitee (which
shall not be counsel to the Indemnitor without the consent of the Indemnitee,
such consent not to be unreasonably withheld, conditioned or delayed). After
notice from the Indemnitor to such Indemnitee of its election so to assume the
defense thereof, such Indemnitor shall not be liable to such Indemnitee under
this Section 6.5 or otherwise for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such Indemnitee, in
connection with the defense thereof (other than reasonable costs of
investigation) unless the Indemnitee shall have been advised by counsel that
representation of the Indemnitee by counsel provided by the Indemnitor would be
inappropriate due to actual or potential conflicting interests between the
Indemnitee and the Indemnitor, including situations in which there are one or
more legal defenses available to the Indemnitee that are different from or
additional to those available to Indemnitor; provided, however,
that the Indemnitor shall not, in connection with any one such action or
separate but substantially similar actions arising out of the same general
allegations, be liable for the fees and expenses of more than one separate
counsel at any time for all Indemnitees, except to the extent that local
counsel, in addition to their regular counsel, is required in order to
effectively defend against such action. No Indemnitor shall, without the
written consent of the Indemnitee, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the Indemnitee is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the Indemnitee from all liability
arising out of such action or claim and (ii) does not include a statement
as to, or an admission of, fault, culpability or a failure to act, by or on
behalf of any Indemnitee. No indemnification shall be available in respect of
any settlement of any action or claim effected by an Indemnitee without the
prior written consent of the Indemnitor, which consent shall not be
unreasonably withheld, conditioned or delayed.


 


(d)           If
the indemnification provided for in this Section 6.5 is unavailable or
insufficient to hold harmless an Indemnitee under Section 6.5(a) or
Section 6.5(b) hereof in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
Indemnitor shall contribute to the amount paid or payable by such Indemnitee


 


18

















 


as a result of such losses, claims, damages or liabilities (or actions
in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Indemnitor and the Indemnitee in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such Indemnitor and Indemnitee
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by such Indemnitor or by
such Indemnitee, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6.5(d) were determined solely by pro
rata allocation (even if Management Stockholder or any underwriters, selling
agents or other securities professionals or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not take
account of the considerations referred to in this Section 6.5(d). The
amount paid or payable by an Indemnitee as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such Indemnitee in connection with investigating or defending any such action
or claim. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
obligations of Management Stockholder and any underwriters, selling agents or
other securities professionals in this Section 6.5(d) to contribute shall
be several in proportion to the percentage of Applicable Securities registered
or underwritten, as the case may be, by them and not joint.


 


7.
Additional Covenant of Management Stockholder. Management Stockholder
shall notify Vivendi of any development occurring after the date of this
Agreement that causes, or that would reasonably be expected to cause, any
breach of any of the representations and warranties set forth in Section 2
hereof.


 


8.
Expenses. Except as otherwise expressly provided herein, each of the
parties hereto shall bear and pay all costs and expenses incurred by them or on
their behalf in connection with the transactions contemplated hereunder,
including fees and expenses of their own financial consultants, investment
bankers, accountants and counsel.


 


9.
Fiduciary Duties. Nothing contained herein shall limit or affect any
actions taken by Management Stockholder or any person or entity controlling or
under the control of Management Stockholder of the types described in the
Combination Agreement (including Sections 6.3 and 6.4 thereof) in response to a
Activision Acquisition Proposal, to the extent that Activision is permitted to
take such actions under the Combination Agreement and provided that Management
Stockholder acts in accordance with any requirement set forth in the
Combination Agreement, nor shall anything contained herein limit or affect any
actions taken by Management Stockholder or any other person in his capacity as
a director of Activision, and none of such actions taken in accordance with the
provisions of this Section 9 or in accordance with the provisions of the
Combination Agreement shall be deemed to constitute a breach of this Agreement.


 


10. Specific Performance. Each party hereto acknowledges that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance herewith or were otherwise breached.
Accordingly, each party hereto agrees that


 


19

















 


injunctive
relief or any other equitable remedy, in addition to remedies at law or in
damages, is the appropriate remedy for any such breach and will not oppose the
granting of such relief on the basis that the other party has an adequate
remedy at law or in damages. Each party hereto agrees that it will not seek,
and agrees to waive any requirement for, the securing or posting of a bond in
connection with any other party’s seeking or obtaining such equitable relief.


 


11. Successors and Assigns. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the parties hereto and
their respective successors, assigns, heirs and devises, as applicable. This
Agreement shall not be assignable without the written consent of the other
party hereto, except that Vivendi may assign, in its sole discretion, all or
any of its rights, interests and obligations hereunder to any of its
Affiliates.


 


12. Termination. This Agreement will terminate automatically,
without any action on the part of any party hereto, on the earlier of (a) the
termination of the Combination Agreement pursuant to its terms prior to the
Closing; (b) at any time by mutual agreement between Vivendi and
Management Stockholder; and (c) the date that is 120 days after the Closing
Date; provided, however, the provisions of Section 6 of this Agreement shall
survive until the earlier of (i) Management Stockholder’s Registrable
Securities becoming transferable pursuant to paragraph (k) of Rule 144 (or any
successor provision thereto) and (ii) the first occurrence of a Termination
Event (as defined in the Amended and Restated Bylaws of Activision in effect after the consummation of the
transactions contemplated by the Combination Agreement).


 


13. Entire Agreement. This Agreement (including the documents
and the instruments referred to herein) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.


 


14. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Delaware,
without regard to the conflicts of laws provisions thereof.


 


15. Jurisdiction; Waiver of Venue. Each of the parties
irrevocably agrees that any legal action or proceeding arising out of or
related to this Agreement or for recognition and enforcement of any judgment in
respect hereof brought by any other party hereto or its successors or assigns
may be brought and determined in the Court of Chancery in and for New Castle
County in the State of Delaware (or, if such court lacks jurisdiction, any
appropriate state or federal court in New Castle County in the State of
Delaware), and each of the parties hereby irrevocably submits to the exclusive
jurisdiction of the aforesaid courts for itself and with respect to its
property, generally and unconditionally, with regard to any such action or
proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any action, suit or proceeding
relating thereto except in such courts). Each of the parties agrees further to
accept service of process in any manner permitted by such courts. Each of the
parties hereby irrevocably and unconditionally waives, and agrees not to
assert, by way of motion or as a defense, counterclaim or otherwise, in any
action or proceeding arising out of or related to this Agreement or the
transactions contemplated hereby, (i) any claim that it is not personally
subject to the jurisdiction of the above-named courts for any reason other than
the failure lawfully to serve process, (ii) that it or its property is exempt
or immune from jurisdiction


 


20

















 


of any such court or from any legal process commenced in such courts (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise), (iii) to the
fullest extent permitted by law, that (A) the suit, action or proceeding in any
such court is brought in an inconvenient forum, (B) the venue of such suit,
action or proceeding is improper or (C) this Agreement, or the subject matter
hereof, may not be enforced in or by such courts and (iv) any right to a trial
by jury.


 


16. Notices. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given or made by a party hereto only upon receipt by the receiving party
at the following addresses (if mailed) or the following telecopy numbers (if
delivered by facsimile), or at such other address or telecopy number for a
party as shall be specified by like notice:


 


(a)           if
to Vivendi, to


Vivendi S.A.


42, avenue de Friedland  
 75380 Paris cedex 08  

Attention: Frédéric
Crépin


Telecopy: + 33 1 71 71 11
43


 


with a copy (which shall not
constitute notice) to:


 


Vivendi S.A.


800 Third Avenue, 5th
Floor


New York, New
York 10022


Attention: George E.
Bushnell III, Esq.


Telecopy:
(212) 572-7496


 


and:


 


Gibson, Dunn & Crutcher
LLP


2029 Century Park East


Los Angeles, California 90067


Attention: Ruth Fisher, Esq.


Telecopy:
(310) 551-8741


 


(b)           if
to Activision, to


 


Activision, Inc.


3100 Ocean Park Boulevard


Santa Monica,
California 90405


Attention: George L. Rose,
Esq.


Telecopy: (310) 255-2152


 


21

















 


with a copy (which shall not
constitute notice) to:


 


Skadden, Arps, Slate,
Meagher & Flom LLP


300 South Grand Avenue


Los Angeles, California
90071


Attention: Brian J.
McCarthy, Esq.


Telecopy:
(213) 687-5600


 


(c)           if
to Management Stockholder, to


 


Mr. Brian G. Kelly

c/o Activision, Inc.


3100 Ocean Park Boulevard


Santa Monica,
California 90405


 


with a copy (which shall not
constitute notice) to:


 


Wachtell, Lipton, Rosen
& Katz


51 West 52nd
Street


New York, New York 10019


Attention: Michael J. Segal,
Esq.


Telecopy:
(212) 403-2000


 


17. Severability. This Agreement shall be deemed severable; the
invalidity or unenforceability of any term or provision of this Agreement shall
not affect the validity or enforceability of the balance of this Agreement or
of any other term hereof, which shall remain in full force and effect. If any
of the provisions hereof are determined to be invalid or unenforceable, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible.


 


18. Waiver. The parties hereto may, to the extent permitted by
applicable Law, subject to Section 19 hereof, (a) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto or (b) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such waiver shall be valid only if set forth in a written
instrument signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.


 


19. Modification. No supplement, modification or amendment of
this Agreement will be binding unless made in a written instrument that is
signed by all of the parties hereto and that specifically refers to this
Agreement.


 


20. Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the same agreement and
shall become effective when such counterparts have been signed by each of the
parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.


 


22

















 


21. Headings. All Section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.


 


[Signature Page Follows]


 


23

















 


IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the date first written above.


 


 


	
   

  	
  VIVENDI S.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jean-Bernard
  Lévy

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jean-Bernard
  Lévy

  
	
   

  	
   

  	
  Title:

  	
  Chairman of the
  Board and CE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ACTIVISION, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ George Rose

  	
   

  
	
   

  	
   

  	
  Name:

  	
  George Rose

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President and

  
	
   

  	
   

  	
   

  	
  General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Brian G.
  Kelly

  	
   

  
	
   

  	
  Brian G. Kelly

  
							



 


 


[Signature Page to Voting and Lock-Up Agreement]


 

















 


Schedule 1


 


Please
see attached schedule.


 


Schedule 1 - 1