Exhibit
4.1


 


FIRST
AMENDMENT TO RIGHTS AGREEMENT


 


This First Amendment, dated as of December 1,
2007 (this “Amendment”), to the Rights Agreement, dated as of April 18,
2000 (the “Rights Agreement”), is made between Activision, Inc., a Delaware
corporation (the “Company”), and Continental Stock Transfer & Trust
Company, a limited trust organized under the laws of the State of New York (the
“Rights Agent”).  Capitalized terms not otherwise defined herein
have the meanings given to such terms in the Rights Agreement.


 


WHEREAS, the Company, Vivendi, S.A., a société anonyme organized under the
laws of France (“Vivendi”), VGAC LLC, a limited liability company
organized under the laws of the State of Delaware (“Vivendi LLC”), Vivendi
Games, Inc., a Delaware corporation (“Games”), and Sego Merger
Corporation, a Delaware corporation (“Merger Sub”), have proposed to
enter into a Business Combination Agreement (“BCA”) in order to combine
the respective businesses of Games and the Company, pursuant to which, among
other things, (i) Vivendi shall purchase (the “Share Purchase”) from the
Company a number of newly issued shares of common stock, par value $0.000001
per share, of the Company (“Company Common Stock”) and (ii) Merger Sub
shall be merged with and into Games (the “Merger” and, together with the
Share Purchase, the “Combination Transactions”) pursuant to which (x)
each share of common stock, par value $0.01 per share, of Games (“Games
Common Stock”) shall be converted into the right to receive a number of
shares of Company Common Stock equal to the Exchange Ratio (as defined in the
BCA) and (y) Games shall become a wholly-owned subsidiary of the Company;


 


WHEREAS, upon consummation of the Combination
Transactions, Vivendi shall beneficially own a majority of the issued and
outstanding shares of the Company Common Stock;


 


WHEREAS, the Board of Directors of the
Company has approved and adopted the BCA, determined that the BCA and the
transaction contemplated thereby, including the Combination Transactions, are advisable
to, fair to and in the best interests of the Company and its stockholders and,
in connection with the execution of the BCA, that it is in the best interests
of the Company and its stockholders to amend the Rights Agreement;


 


WHEREAS, the Company and the Rights Agent
desire to amend the Rights Agreement to provide that neither Vivendi nor any of
its affiliates shall be deemed an Acquiring Person, no Distribution Date shall
be deemed to occur, and no Rights will otherwise become exercisable as a result
of the execution and delivery of the BCA, the public announcement of such
execution and delivery or the consummation of the transactions contemplated by
the BCA, including the Combination Transactions; and


 


WHEREAS, pursuant to its authority under
Section 27 of the Rights Agreement, the Board of Directors of the Company has
authorized and approved this Amendment to the Rights Agreement as of the date
hereof.


 


NOW THEREFORE, in consideration of the
premises and the mutual agreements herein set forth in this Amendment, the
parties hereby agree as follows:


 

















 


1.             The Company hereby directs the Rights
Agent, in its capacity as Rights Agent and in accordance with Section 27 of the
Rights Agreement, to execute this Amendment.


 


2.             The Rights Agreement is hereby amended by
adding a new Section 35 to the Rights Agreement, which shall read in its
entirety as follows:


 


“Section 35.           Certain Exceptions.
 Notwithstanding anything to the contrary contained herein, (i) none of Vivendi,
S.A., a société anonyme organized under
the laws of France (“Vivendi”) nor any of its Affiliates or Associates
shall become, or be deemed to be, individually or collectively, an Acquiring
Person, a Beneficial Owner of Common Stock or an Affiliate or Associate of an
Acquiring Person by virtue of the approval, execution and delivery of, the
public announcement of such approval, execution and delivery, or the
performance of, the Business Combination Agreement, dated as of December   ,
2007, by and among the Company, Vivendi, VGAC LLC, Vivendi Games, Inc., and
Sego Merger Corporation (as it may be amended from time to time, the “BCA”), or
the consummation of the Combination Transactions (as defined in the BCA) or the
other transactions contemplated by the BCA, (ii) no triggering event under Sections
11 or Section 13 shall occur or be deemed to occur, in each case, as a result
of the approval, execution and delivery of, the public announcement of such
approval, execution and delivery, or the performance of, the BCA, or the
consummation of the Combination Transactions or the other transactions
contemplated by the BCA, and (iii) no Distribution Date shall occur, in each
case, as a result of the approval, execution and delivery of, the public
announcement of such approval, execution and delivery, or the performance of,
the BCA, or the consummation of the Combination Transactions or the other
transactions contemplated by the BCA.”


 


3.             The Rights Agreement is hereby further
amended by adding a new Section 36 to the Rights Agreement, which shall read in
its entirety as follows:


 


“Section 36.           Termination.  Notwithstanding
anything to the contrary contained herein, this Agreement shall terminate upon
the consummation of the transactions contemplated by the BCA and all rights hereunder
shall be extinguished.”


 


4.             This Amendment shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws thereof
applicable to contracts to be made and performed entirely within the State of Delaware.


 


5.             This Amendment shall be deemed effective
immediately prior to the execution and delivery of the BCA. Except as otherwise
amended hereby, the Rights Agreement shall remain in full force and effect and
shall be otherwise unaffected hereby.


 


6.             This Amendment may be executed in
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and both such counterparts shall together constitute but one
and the same instrument.


 


*  *
 *  *  *


 


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IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to the Rights Agreement to be duly executed as of the date
first above written.


 


 


	
   

  	
  ACTIVISION,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Robert A. Kotick

  	
   

  
	
   

  	
  Robert A.
  Kotick

  
	
   

  	
  Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CONTINENTAL
  STOCK TRANSFER &

  
	
   

  	
  TRUST
  COMPANY

  
	
   

  	
  as Rights
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Michael Mullings

  	
   

  
	
   

  	
   

  	
  Michael
  Mullings

  
	
   

  	
   

  	
  Vice
  President

  
					



 


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