CONSUMMATED ON 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:
Brian G. Kelly
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 NEW
YORK, 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;