OR PRIOR TO JUNE 30, 2009, BUT THE COMPANY
ENTERS INTO ANOTHER AGREEMENT
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PURSUANT TO WHICH A CHANGE OF CONTROL (AS SUCH TERM IS DEFINED IN THE NEW
EMPLOYMENT AGREEMENT) IS CONSUMMATED ON OR PRIOR TO JUNE 30, 2009 (AN
"ALTERNATIVE TRANSACTION"), THE EXECUTIVE SHALL BE ENTITLED TO THE SECOND BONUS
AND THE RSU BONUS IN ACCORDANCE WITH SECTIONS 1(A)(II) AND 1(B); PROVIDED,
HOWEVER, THAT, FOR PURPOSES OF SECTIONS 1(A)(II) AND 1(B), REFERENCES TO THE
CONSUMMATION DATE WILL BE DEEMED TO REFER TO THE CONSUMMATION DATE OF THE
ALTERNATIVE TRANSACTION.
(D)
FAILURE TO TIMELY CONSUMMATE A TRANSACTION. NOTWITHSTANDING THE
FOREGOING, IF THE COMBINATION TRANSACTIONS OR AN ALTERNATIVE TRANSACTION IS NOT
CONSUMMATED ON OR PRIOR TO JUNE 30, 2009, THE EXECUTIVE SHALL HAVE NO
ENTITLEMENT TO, AND THE COMPANY SHALL NOT BE OBLIGATED TO PAY TO THE EXECUTIVE,
THE SECOND BONUS OR THE RSU BONUS.
2.
Miscellaneous
(A)
TAXATION. THE COMPANY MAY WITHHOLD FROM ANY PAYMENTS MADE UNDER
THE AGREEMENT ALL FEDERAL, STATE, CITY OR OTHER APPLICABLE TAXES AS SHALL BE
REQUIRED PURSUANT TO ANY LAW, GOVERNMENTAL REGULATION OR RULING.
(B)
NOTICES. FOR PURPOSES OF THIS AGREEMENT, NOTICES AND ALL OTHER
COMMUNICATIONS PROVIDED FOR HEREIN SHALL BE IN WRITING AND SHALL BE DEEMED TO
HAVE BEEN DULY GIVEN WHEN (I) DELIVERED PERSONALLY; (II) SENT BY FACSIMILE OR
OTHER SIMILAR ELECTRONIC DEVICE AND CONFIRMED; (III) DELIVERED BY COURIER OR
OVERNIGHT EXPRESS; OR (IV) THREE BUSINESS DAYS AFTER BEING SENT BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS:
If to the Company:
Activision, Inc.
3100 Ocean Park Boulevard
Santa Monica, CA 90405
Attention: General Counsel
with a copy to:
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
Attention: Linda E. Rappaport
If to the Executive:
Robert A. Kotick
c/o Activision, Inc.
3100 Ocean Park Boulevard
Santa Monica, CA 90405
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd St.
New York, NY 10019
Attention: Michael Segal
or to such other address as a party may furnish to the other party in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
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(C)
WAIVER. NO WAIVER BY EITHER PARTY HERETO OF ANY BREACH OF ANY
PROVISION OF THIS AGREEMENT SHALL BE DEEMED A WAIVER OF ANY PRECEDING OR
SUCCEEDING BREACH OF SUCH PROVISION OR ANY OTHER PROVISION HEREIN CONTAINED.
(D)
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT
TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
(E)
ENTIRE AGREEMENT. THIS AGREEMENT SETS FORTH THE ENTIRE AGREEMENT
OF THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND IS INTENDED
TO SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS EMPLOYMENT NEGOTIATIONS,
UNDERSTANDINGS AND AGREEMENTS (WHETHER WRITTEN OR ORAL), INCLUDING THE AMENDED
EMPLOYMENT AGREEMENT. NO PROVISION OF THIS AGREEMENT MAY BE WAIVED OR CHANGED,
EXCEPT BY A WRITING SIGNED BY THE PARTY TO BE CHARGED WITH SUCH WAIVER OR
CHANGE.
(F)
SUCCESSORS; BINDING AGREEMENT. NEITHER