View:
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) July 11, 2001 (August 1, 2000)
ACTIVISION, INC.
________________________________________________________________________________
(Exact Name of Registrant as Specified in Charter)
Delaware 0-12699 95-4803544
________________________________________________________________________________
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
3100 Ocean Park Blvd., Santa Monica, CA 90405
________________________________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (310) 255-2000
________________________________________________________________________________
(Former Name or Former Address, if Changed Since Last Report)
================================================================================
Item 5. Other Events.
This Form 8-K is being filed to report certain exhibits attached hereto.
The Board of Directors (the "Board") of Activision, Inc., a Delaware
corporation (the "Company"), adopted certain amendments to the Company's By-laws
on August 1, 2000, which provided for (i) fixing the number of directors on the
Board with the Board having the sole authority to increase or decrease such
number, (ii) filling of vacancies on the Board only by an affirmative vote of at
least a majority of the remaining directors, (iii) limiting who may call a
special meeting of the stockholders to the Board acting by a majority and the
Chairman or Co-Chairman of the Board and eliminating the stockholders' right to
call a special meeting or require that the Board or Chairman call a special
meeting of the stockholders, (iv) nomination of directors and other business
proposals by stockholders but only in the event that such nominations and
proposals are received timely by the Company and in proper written form and (v)
super- majority vote to amend or repeal the foregoing amendments to the
Company's By-laws.
The Company entered into an employment agreement with Mr. Lawrence Goldberg
on January 1, 2001, and with Ms. Kathy Vrabeck on April 1, 2001, which replace
the employment agreements previously entered into between the Company and Mr.
Goldberg on April 1, 2000, and the Company and Ms. Vrabeck on July 12, 1999,
respectively.
Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits.
(c) Exhibits.
3.2 Amended and Restated By-laws of the Company.
10.1 Employment agreement dated January 1, 2001, between the
Company and Mr. Lawrence Goldberg.
10.2 Employment agreement dated April 1, 2001, between the
Company and Ms. Kathy Vrabek.
-2-
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: July 11, 2001
ACTIVISION, INC.
By:/s/ Brian G. Kelly
------------------------
Name: Brian G. Kelly
Title: Co-Chairman
-3-
Exhibit 3.2
As adopted by the Board of Directors
August 1, 2000
AMENDED AND RESTATED
BY-LAWS
OF
ACTIVISION, INC.
ARTICLE I
OFFICES
1.1. Registered Office: The registered office of Activision, Inc.(the
"Corporation") within the State of Delaware shall be established and maintained
at the location of the registered agent of the Corporation. The Corporation was
originally organized as Activision Holdings, Inc.
1.2. Other Offices: The Corporation may have other offices, either within
or without the State of Delaware, at such place or places as the Board of
Directors may from time to time appoint or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS
2.1. Place of Stockholders' Meetings. All meetings of the stockholders of
the Corporation shall be held at such place or places, within or without the
State of Delaware as may be fixed by the Board of Directors from time to time or
as shall be specified in the respective notices thereof.
2.2. Date and Hour of Annual Meetings of Stockholders. An annual meeting of
stockholders shall be held each year at such place, on such date, and at such
time as the Board of Directors shall each year fix, which date shall be within
thirteen (13) months of the last annual meeting of stockholders or, if no such
meeting has been held, the date of incorporation.
2.3. Purposes of Annual Meetings. At each annual meeting, the stockholders
shall elect the members of the Board of Directors for the succeeding year. At
any such annual meeting any further proper business may be transacted.
2.4. Special Meetings of Stockholders. Except as required by law and
subject to the rights of the holders of any series of Preferred Stock of the
Corporation established pursuant to the provisions of the Certificate of
Incorporation, special meetings of stockholders may be called only by the Board
of Directors pursuant to a resolution approved by a majority of the then
authorized number of directors or by the Chairman or Co-Chairman of the Board of
Directors. Stockholders of the Corporation are not permitted to call a special
meeting or to require that the Board of Directors or the Chairman or Co-Chairman
of the Board of Directors call a special meeting of stockholders. The business
permitted at any special meeting of stockholders shall be limited to the
business brought before the meeting by or at the direction of the Board of
Directors or the Chairman or Co-Chairman of the Board of Directors.
2.5. Notice of Meetings of Stockholders. Except as otherwise expressly
required or permitted by law, not less than ten days nor more than sixty days
before the date of every stockholders' meeting the Secretary shall give to each
stockholder of record entitled to vote at such meeting written notice, (i)
delivered by hand, (ii) sent by telecopier, provided that a copy is mailed,
postage prepaid, (iii) sent by Express Mail, Federal Express or other express
delivery service, (iv) sent by telegram or (v) the mailing thereof by
first-class mail, postage prepaid, stating the place, date and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for which
the meeting is called. Such notice, if mailed, shall be deemed to be given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address for notices to such stockholder as it appears on the
records of the Corporation.
2.6. Quorum of Stockholders. (a) Unless otherwise provided by the
Certificate of Incorporation or by law, at any meeting of the stockholders, the
presence in person or by proxy of stockholders entitled to cast a majority of
the votes thereat shall constitute a quorum.
(b) At any meeting of the stockholders at which a quorum shall be present,
a majority of those present in person or by proxy may adjourn the meeting from
time to time without notice other than announcement at the meeting. In the
absence of a quorum, the officer presiding thereat shall have power to adjourn
the meeting from time to time until a quorum shall be present. Notice of any
adjourned meeting, other than announcement at the meeting, shall not be required
to be given, except as provided in paragraph (d) below and except where
expressly required by law.
(c) At any adjourned session at which a quorum shall be present, any
business may be transacted which might have been transacted at the meeting
originally called but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof, unless a new record date is fixed by the Board of Directors.
(d) If an adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
-2-
2.7. Chairman and Secretary of Meeting. The President, or, in his absence,
a Vice President, shall preside at meetings of the stockholders. The Secretary
or, in his absence, an Assistant Secretary, shall act as secretary of the
meeting, or if neither is present, then the presiding officer may appoint a
person to act as secretary of the meeting.
2.8. Voting by Stockholders. Except as may be otherwise provided by the
Certificate of Incorporation or these by-laws, at every meeting of the
stockholders each stockholder shall be entitled to one vote for each share of
stock standing in his name on the books of the Corporation on the record date
for the meeting. All elections and questions shall be decided by the vote of a
majority in interest of the stockholders present in person or represented by
proxy and entitled to vote at the meeting.
2.9. Proxies. Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by proxy. Every proxy shall be in
writing, subscribed by the stockholder or his duly authorized attorney-in-fact,
but need not be dated, sealed, witnessed or acknowledged.
2.10. Inspectors. The election of directors and any other vote by ballot at
any meeting of the stockholders shall be supervised by at least two inspectors.
Such inspectors may be appointed by the presiding officer before or at the
meeting; or if one or both inspectors so appointed shall refuse to serve or
shall not be present, such appointment shall be made by the officer presiding at
the meeting.
2.11. List of Stockholders. (a) At least ten days before every meeting of
stockholders the Secretary shall prepare and make a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder.
(b) During ordinary business hours, for a period of at least ten days prior
to the meeting, such list shall be open to examination by any stockholder for
any purpose germane to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is to be held.
(c) The list shall also be produced and kept at the time and place of the
meeting during the whole time of the meeting, and it may be inspected by any
stockholder who is present.
(d) The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
Section 2.11 or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
2.12. Procedure at Stockholders' Meetings. Except as otherwise provided by
these by-laws or any resolutions adopted by the stockholders or Board of
Directors, the order of business and all other matters of procedure at every
meeting of stockholders shall be determined
-3-
by the presiding officer. Not less than 15 minutes following the presentation of
any resolution to any meeting of stockholders, the presiding officer may
announce that further discussion on such resolution shall be limited to not more
than three persons who favor and not more than three persons who oppose such
resolution, each of whom shall be designated by the presiding officer and shall
thereupon be entitled to speak thereon for not more than five minutes. After
such persons, or such a lesser number thereof as shall advise the presiding
officer of their desire so to speak, shall have spoken on such resolution, the
presiding officer may direct a vote on such resolution without further
discussion thereon at the meeting.
2.13. Action By Consent Without Meeting. Unless otherwise provided by the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual
or special meeting, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
2.14 Advance Notice Procedures. Subject to the rights of holders of any
series of Preferred Stock established pursuant to the provisions of the Amended
and Restated Certificate of Incorporation, nominations for the election of
directors and business proposed to be brought before an annual meeting of
stockholders may be made by the Board of Directors or a committee appointed by
the Board of Directors, or by any stockholder entitled to vote generally in the
election of directors; provided, that any such stockholder may nominate one or
more persons for election as directors at an annual meeting or propose business
to be brought before an annual meeting, or both, only if such stockholder has
given timely notice in proper written form of his or her intent to make such
nomination or nominations or to propose such business. To be timely, a
stockholder's notice must be delivered to or mailed and received by the
Secretary of the Corporation not less than 60 days nor more than 90 days prior
to the annual meeting; provided, however, that in the event that less than 70
days' notice or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must be so received
not later than the close of business on the tenth day following the day on which
such notice of the date of the meeting was mailed or such public disclosure was
made, whichever occurs first. To be in proper written form, a stockholder's
notice to the Secretary shall set forth:
(i) the name and address of the stockholder who intends to make the
nominations or propose the business as they appear on the Corporation's
books and, as the case may be, of the person or persons to be nominated or
of the business to be proposed;
(ii) a representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and, if
applicable, intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice;
-4-
(iii) if applicable, a description of all arrangements or
understandings between the stockholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder;
(iv) such other information regarding each nominee or each matter of
business to be proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or
intended to be nominated, or the matter been proposed, or intended to be
proposed, by the Board of Directors, and such other information about the
nominee as the Board of Directors deems appropriate, including, without
limitation, the nominee's age, business and residence addresses, principal
occupation and the class and number of shares of Common Stock beneficially
owned by the nominee, or such other information about the business to be
proposed and about the stockholder making such business proposal before the
annual meeting as the Board of Directors deems appropriate, including,
without limitation, the class and number of shares of Common Stock
beneficially owned by such stockholder; and
(v) if applicable, the consent of each nominee to serve as director of
the Corporation if so elected.
The chairman of the meeting may refuse to acknowledge the nomination of any
person or the proposal of any business not made in compliance with the foregoing
procedure.
ARTICLE III
DIRECTORS
3.1. Powers of Directors. The property, business and affairs of the
Corporation shall be managed by its Board of Directors which may exercise all
the powers of the Corporation except such as are by the law of the State of
Delaware or the Certificate of Incorporation or these by-laws required to be
exercised or done by the stockholders.
3.2. Number, Method of Election, Terms of Office of Directors. (a) The
number of directors which shall constitute the Board of Directors shall be one
(1) or more unless changed by action of the Board of Directors. Each director
shall hold office until the next annual meeting of stockholders and until his
successor is elected and qualified, provided, however, that a director may
resign at any time. Directors need not be stockholders.
(b) Number. The Board of Directors shall consist of not fewer than three
(3) members and not more than nine (9) members, with the number of authorized
directors being initially fixed at six (6), which number may be changed from
time to time by a resolution of the Board of Directors adopted by the
affirmative vote of at least a majority of the total number of authorized
directors most recently fixed by the Board of Directors, except in each case as
may be provided pursuant to resolutions of the Board of Directors, adopted
pursuant to the provisions of the
-5-
Certificate of Incorporation, establishing any series of Preferred Stock and
granting to holders of shares of such series of Preferred Stock rights to elect
additional directors under specified circumstances.
3.3. Vacancies on Board of Directors; Removal. (a) Any director may resign
his office at any time by delivering his resignation in writing to the President
or the Secretary. It will take effect at the time specified therein or, if no
time is specified, it will be effective at the time of its receipt by the
Corporation. The acceptance of a resignation shall not be necessary to make it
effective, unless expressly so provided in the resignation.
(b) Vacancies. Any vacancy on the Board of Directors, howsoever resulting,
including through an increase in the number of directors, shall only be filled
by the affirmative vote of a majority of the remaining directors then in office,
even if less than a quorum, or by the sole remaining director. Any director
elected to fill a vacancy shall hold office for the same remaining term as that
of his or her predecessor, or if such director was elected as a result of an
increase in the number of directors, then for the term specified in the
resolution providing for such increase.
(c) Removal. Any director may be removed with or without cause at any time
by the affirmative vote of stockholders holding of record in the aggregate at
least a majority of the outstanding shares of stock of the Corporation, given at
a special meeting of the stockholders called for that purpose.
3.4. Meetings of the Board of Directors. (a) The Board of Directors may
hold their meetings, both regular and special, either within or without the
State of Delaware.
(b) Regular meetings of the Board of Directors may be held at such time and
place as shall from time to time be determined by resolution of the Board of
Directors. No notice of such regular meetings shall be required. If the date
designated for any regular meeting be a legal holiday, then the meeting shall be
held on the next day which is not a legal holiday.
(c) The first meeting of each newly elected Board of Directors shall be
held immediately following the annual meeting of the stockholders for the
election of officers and the transaction of such other business as may come
before it. If such meeting is held at the place of the stockholders' meeting, no
notice thereof shall be required.
(d) Special meetings of the Board of Directors shall be held whenever
called by direction of the President or at the written request of any one
director.
(e) The Secretary shall give notice to each director of any special meeting
of the Board of Directors by mailing the same at least three days before the
meeting or by telegraphing, telexing, or delivering the same not later than the
day before the meeting. Unless required by law, such notice need not include a
statement of the business to be transacted at, or the purpose of, any such
meeting. Any and all business may be transacted at any meeting of the Board of
Directors. No notice of any adjourned meeting need be given. No notice to or
waiver by any director shall be required with respect to any meeting at which
the director is present.
-6-
3.5. Quorum and Action. Unless provided otherwise by law or the Certificate
of Incorporation, a majority of the whole Board shall constitute a quorum for
the transaction of business; but if there shall be less than a quorum at any
meeting of the Board, a majority of those present may adjourn the meeting from
time to time. The vote of a majority of the directors present at any meeting at
which a quorum is present shall be necessary to constitute the act of the Board
of Directors.
3.6. Presiding Officer and Secretary of Meeting. The President, or, in his
absence, any Vice President, or, in their absence a member of the Board of
Directors selected by the members present, shall preside at meetings of the
Board. The Secretary shall act as secretary of the meeting, but in his absence
the presiding officer may appoint a secretary of the meeting.
3.7. Action by Consent Without Meeting. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board or any committee
designated by the Board, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes or proceedings of the Board or
any committee designated by the Board.
3.8. Action by Telephonic Conference. Members of the Board of Directors, or
any committee designated by such Board, may participate in a meeting of such
Board or committee thereof by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting.
3.9. Committees. (a) The Board of Directors may, by resolution or
resolutions passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of any member or
such committee or committees, the member or members thereof present at any such
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member.
(b) Any such committee, to the extent provided in the resolution or
resolutions of the Board of Directors, or in these by-laws, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power of authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the by-laws of the Corporation; and unless the resolution, these
by-laws, or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
-7-
3.10. Compensation of Directors. Directors shall receive such reasonable
compensation for their service on the Board of Directors or any committees
thereof, whether in the form of salary or a fixed fee for attendance at
meetings, or both, with expenses, if any, as the Board of Directors may from
time to time determine. Nothing herein contained shall be construed to preclude
any director from serving in any other capacity and receiving compensation
therefor.
ARTICLE IV
OFFICERS
4.1. Officers, Title, Elections, Terms. (a) The elected officers of the
Corporation shall be a President, and a Secretary, who shall be elected by the
Board of Directors at its annual meeting following the annual meeting of the
stockholders, to serve at the pleasure of the Board of Directors or otherwise as
shall be specified by the Board of Directors at the time of such election and
until their successors are elected and qualify.
(b) The Board of Directors may elect or appoint at any time, and from time
to time, additional officers or agents, including without limitation, a
Treasurer, a Chairman of the Board of Directors, one ore more Vice Chairmen and
one or more Vice Presidents, with such duties as the Board of Directors may deem
necessary or desirable. Such additional officers shall serve at the pleasure of
the Board of Directors or otherwise as shall be specified by the Board of
Directors at the time of such election or appointment. Two or more offices may
be held by the same person.
(c) Any vacancy in any office may be filled for the unexpired portion of
the term by the Board of Directors.
(d) Any officer may resign his office at any time. Such resignation shall
be made in writing and shall take effect at the time specified therein or, if no
time be specified, at the time of its receipt by the Corporation. The acceptance
of a resignation shall not be necessary to make it effective, unless expressly
so provided in the resignation.
(e) The salaries of all officers of the Corporation shall be fixed by the
Board of Directors.
4.2. Removal of Elected Officers. Any elected officer may be removed at any
time, either with or without cause, by resolution adopted at any regular or
special meeting of the Board of Directors by a majority of the directors then in
office.
4.3. Duties. (a) President. The President shall be the principal executive
officer of the Corporation and, subject to the control of the Board of
Directors, shall supervise and control all the business and affairs of the
Corporation. He shall, when present, preside at all meetings of the stockholders
and of the Board of Directors. He shall see that all orders and resolutions of
the Board of Directors are carried into effect (unless any such order or
resolution shall provide otherwise), and in general shall perform all duties
incident to the office of president and such other duties as may be prescribed
by the Board of Directors from time to time.
-8-
(b) Vice President. Each Vice President, if any, shall have such powers and
perform such duties as the Board of Directors may determine or as may be
assigned to him by the President. In the absence of the President or in the
event of his death, or inability or refusal to act, the Vice President (or in
the event there be more than one Vice President, the Vice Presidents in the
order designated at the time of their election, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the President and when so acting, shall have all the powers and be subject to
all the restrictions upon the President.
(c) Treasurer. The Treasurer shall (1) have charge and custody of and be
responsible for all funds and securities of the Corporation; (2) receive and
give receipts for moneys due and payable to the Corporation from any source
whatsoever; (3) deposit all such moneys in the name of the Corporation in such
banks, trust companies, or other depositories as shall be selected by resolution
of the Board of Directors; and (4) in general perform all duties incident to the
office of treasurer and such other duties as from time to time may be assigned
to him by the President or by the Board of Directors. He shall, if required by
the Board of Directors, give a bond for the faithful discharge of his duties in
such sum and with such surety or sureties as the Board of Directors shall
determine.
(d) Secretary. The Secretary shall (1) keep the minutes of the meetings of
the stockholders, the Board of Directors, the Executive Committee (if
designated), and all other committees, if any, of which a secretary shall not
have been appointed, in one or more books provided for that purpose; (2) see
that all notices are duly given in accordance with the provisions of these
by-laws and as required by law; (3) be custodian of the corporate records and of
the seal of the Corporation and see that the seal of the Corporation is affixed
to all documents, the execution of which on behalf of the Corporation under its
seal, is duly authorized; (4) keep a register of the post office address of each
stockholder which shall be furnished to the Secretary by such stockholder; (5)
have general charge of stock transfer books of the Corporation; and (6) in
general perform all duties incident to the office of secretary and such other
duties as from time to time may be assigned to him by the President or by the
Board of Directors.
(e) Assistant Secretaries and Assistant Treasurers. At the request of the
Secretary or in his absence or disability, one or more Assistant Secretaries
designated by him or by the Board of Directors shall have all the powers of the
Secretary for such period as he or it may designate or until he or it revokes
such designation. At the request of the Treasurer or in his absence or
disability, one or more Assistant Treasurers designated by him or by the Board
of Directors shall have all the powers of the Treasurer for such period as he or
it may designate or until he or it revokes such designation. The Assistant
Secretaries and Assistant Treasurers, in general, shall perform such duties as
shall be assigned to them by the Secretary or the Treasurer, respectively, or by
the President or the Board of Directors.
ARTICLE V
CAPITAL STOCK
-9-
5.1. Stock Certificates. (a) Every holder of stock in the Corporation shall
be entitled to have a certificate signed by, or in the name of, the Corporation
by the Chairman or the President or a Vice President, and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary, certifying the
number of shares owned by him.
(b) If such certificate is countersigned by a transfer agent other than the
Corporation or its employee, or by a registrar other than the Corporation or its
employee, the signatures of the officers of the Corporation may be facsimiles,
and, if permitted by law, any other signature may be a facsimile.
(c) In case any officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of issue.
(d) Certificates of stock shall be issued in such form not inconsistent
with the Certificate of Incorporation as shall be approved by the Board of
Directors. They shall be numbered and registered in the order in which they are
issued.
(e) All certificates surrendered to the Corporation shall be cancelled with
the date of cancellation, and shall be retained by the Secretary, together with
the powers of attorney to transfer and the assignments of the shares represented
by such certificates, for such period of time as shall be prescribed from time
to time by resolution of the Board of Directors.
5.2. Record Ownership. A record of the name and address of the holder of
each certificate, the number of shares represented thereby and the date of issue
thereof shall be made on the Corporation's books. The Corporation shall be
entitled to treat the holder of any share of stock as the holder in fact
thereof, and accordingly shall not be bound to recognize any equitable or other
claim to or interest in any share on the part of any other person, whether or
not it shall have express or other notice thereof, except as required by law.
5.3. Transfer of Record Ownership. Transfers of stock shall be made on the
books of the Corporation only by direction of the person named in the
certificate or his attorney, lawfully constituted in writing, and only upon the
surrender of the certificate therefor and a written assign ment of the shares
evidenced thereby. Whenever any transfer of stock shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer if, when the certificates are presented to the Corporation for
transfer, both the transferor and transferee request the Corporation to do so.
5.4. Lost, Stolen or Destroyed Certificates. Certificates representing
shares of the stock of the Corporation shall be issued in place of any
certificate alleged to have been lost, stolen or destroyed in such manner and on
such terms and conditions as the Board of Directors from time to time may
authorize.
5.5. Transfer Agent; Registrar; Rules Respecting Certificates. The
Corporation may maintain one or more transfer offices or agencies where stock of
the Corporation shall be
-10-
transferable. The Corporation may also maintain one or more registry offices
where such stock shall be registered. The Board of Directors may make such rules
and regulations as it may deem expedient concerning the issue, transfer and
registration of stock certificates.
5.6. Fixing Record Date for Determination of Stockholders of Record. The
Board of Directors may fix, in advance, a date as the record date for the
purpose of determining stockholders entitled to notice of, or to vote at, any
meeting of the stockholders or any adjournment thereof, or the stockholders
entitled to receive payment of any dividend or other distribution or the
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or to express consent to corporate
action in writing without a meeting, or in order to make a determination of the
stockholders for the purpose of any other lawful action. Such record date in any
case shall be not more than sixty days nor less than ten days before the date of
a meeting of the stockholders, nor more than sixty days prior to any other
action requiring such determination of the stockholders. A determination of
stockholders of record entitled to notice or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
5.7. Dividends. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the Corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the Corporation available
for dividends, such sum or sums as the Board of Directors from time to time in
their discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the Corporation.
ARTICLE VI
SECURITIES HELD BY THE CORPORATION
6.1. Voting. Unless the Board of Directors shall otherwise order, the
President, any Vice President, the Secretary or the Treasurer shall have full
power and authority, on behalf of the Corporation, to attend, act and vote at
any meeting of the stockholders of any corporation in which the Corporation may
hold stock, and at such meeting to exercise any or all rights and powers
incident to the ownership of such stock, and to execute on behalf of the
Corporation a proxy or proxies empowering another or others to act as aforesaid.
The Board of Directors from time to time may confer like powers upon any other
person or persons.
6.2. General Authorization to Transfer Securities Held by the Corporation.
(a) Any of the following officers, to wit: the President, any Vice President and
the Treasurer shall be, and they hereby are, authorized and empowered to
transfer, convert, endorse, sell, assign, set over and deliver any and all
shares of stock, bonds, debentures, notes, subscription warrants, stock purchase
warrants, evidence of indebtedness, or other securities now or hereafter
standing in the name of or owned by the Corporation, and to make, execute and
deliver, under the seal of the Corporation, any
-11-
and all written instruments of assignment and transfer necessary or proper to
effectuate the authority hereby conferred.
(b) Whenever there shall be annexed to any instrument of assignment and
transfer executed pursuant to and in accordance with the foregoing paragraph
(a), a certificate of the Secretary of the Corporation in office at the date of
such certificate setting forth the provisions of this Section 6.2 and stating
that they are in full force and effect and setting forth the names of persons
who are then officers of the Corporation, then all persons to whom such
instrument and annexed certificate shall thereafter come, shall be entitled,
without further inquiry or investigation and regardless of the date of such
certificate, to assume and to act in reliance upon the assumption that the
shares of stock or other securities named in such instrument were theretofore
duly and properly transferred, endorsed, sold, assigned, set over and delivered
by the Corporation, and that with respect to such securities the authority of
these provisions of the by-laws and of such officers is still in full force and
effect.
ARTICLE VII
MISCELLANEOUS
7.1. Signatories. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate. Pending
further designation, all such checks, drafts or orders shall require the
signature of both the President and the Vice President.
7.2. Seal. The seal of the Corporation shall be in such form and shall have
such content as the Board of Directors shall from time to time determine.
7.3. Notice and Waiver of Notice. Whenever any notice of the time, place or
purpose of any meeting of the stockholders, directors or a committee of the
Board is required to be given under the law of the State of Delaware, the
Certificate of Incorporation or these by-laws, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or after
the holding thereof, or actual attendance at the meeting in person or, in the
case of any stockholder, by his attorney-in-fact, shall be deemed equivalent to
the giving of such notice to such persons.
7.4. Amendment of By-Laws. (a) By Board of Directors. The by-laws of the
Corporation may be altered, amended or repealed or new by-laws may be made or
adopted by the Board of Directors at any regular or special meeting of the
Board; provided however, that Sections 3.4 and Section 7.4(a) of these By-Laws
may be altered, amended or repealed only by action of the stockholders acting
pursuant to Section 7.4(b) hereof.
(b) By Stockholders. The by-laws of the Corporation may also be altered,
amended or repealed or new by-laws may be made or adopted by the vote of a
majority in interest of the stockholders represented and entitled to vote upon
the election of directors, at any meeting at which a quorum is present.
Notwithstanding the preceding sentence, the affirmative vote of holders
-12-
of at least 662/3% of the voting power of the then outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to amend or
repeal, or adopt any provisions inconsistent with, Sections 2.4, 2.14, 3.2 (b),
3.3(b), or this Section 7.4(b).
7.5. Indemnity. The Corporation shall indemnify its directors and officers
to the fullest extent allowed by law.
7.6. Fiscal Year. Except as from time to time otherwise determined by the
Board of Directors, the fiscal year of the Corporation shall end on March 31.
-13-
Exhibit 10.1
As of January 1, 2001
Mr. Lawrence Goldberg
1156 Via de la Paz
Pacific Palisades, California 90272
Dear Mr. Goldberg:
This letter confirms the terms of your employment by Activision Publishing, Inc.
("Employer").
1. Term
The term of your employment under this agreement shall commence on January
1, 2001 and expire on March 31, 2004, unless earlier terminated as provided
below.
2. Salary
(a) In full consideration for all rights and services provided by you under
this agreement, you shall receive an annual base salary of $287,500 from the
effective date of this Agreement to March 31, 2001, an annual base salary of
$330,000 from April 1, 2001 to March 31, 2002, an annual base salary of $365,000
from April 1, 2002 to March 31, 2003 and an annual base salary of $400,000 from
April 1, 2003 to March 31, 2004.
(b) Base salary payments shall be made in accordance with Employer's then
prevailing payroll policy. Each base salary referred to in Paragraph 2(a) shall
constitute your minimum base salary during the applicable period, and your base
salary may be increased above the minimum at any time if Employer's Board of
Directors (or the Compensation Committee of such Board of Directors), in its
sole and absolute discretion, elects to do so. In the event of an increase in
your base salary beyond the applicable minimum base salary for a particular
period, such increased base salary shall then constitute your minimum base
salary for all subsequent periods under this agreement, but only to the extent
such increased base salary is in excess of the minimum base salary referred to
in Paragraph 2(a) for the corresponding period.
(c) Notwithstanding anything to the contrary set forth above but subject to
the right of termination granted to you pursuant to Paragraph 10(b), Employer
shall not be required to actually use your services, and payment of your base
salary during the applicable period of your employment under this agreement will
discharge Employer's obligations to you hereunder. Such payment, however, will
not discharge your obligations to Employer hereunder.
(d) In addition to your base salary, you shall be eligible to receive an
annual performance based bonus targeted at sixty percent (60%) of your annual
base salary, in compliance with Employer's standard bonus plan which is
established on a yearly basis by Employer's senior management and Board of
Directors (or the Compensation Committee of such Board of Directors) and is
based on a number of factors that may include, without limitation, the
achievement of corporate earning and operating margin goals.
(e) You also are being granted under Employer's existing or modified stock
option plan, options to purchase 75,000 shares of Employer's common stock. Such
options are in addition to the stock options previously issued to you by
Employer. The 75,000 options will be issued on
1
January 2, 2001 at an exercise price of $13.625 and will vest as follows: 15,000
options will vest on July 1, 2001; 7,500 options will vest on January 1, 2002;
7,500 options will vest on July 1, 2002; 7,500 options will vest on January 1,
2003; 7,500 options will vest on July 1, 2003; 7,500 options will vest on
January 1, 2004; 7,500 options will vest on July 1, 2004; and 15,000 options
will vest on January 1, 2005. You also shall receive an additional 20,000 stock
options on or about April 2001 in connection with the company's standard annual
option grant program, which will vest ratably over two years, with one fourth
(1/4) of the amount granted vesting at the end of each six month period. Such
options will be governed in all other respects by Employer's stock option plan
in effect at the time of grant. You also shall be eligible to receive additional
options, under Employer's existing or modified stock option plan, if Employer's
Board of Directors (or the Compensation Committee of such Board of Directors),
in its sole and absolute discretion, determines that the grant to you of
additional options is appropriate.
3. Title
You are being employed under this agreement in the position of Executive
Vice President, World Wide Studios.
4. Duties
You shall personally and diligently perform, on a full-time and exclusive
basis, such services as Employer or any of its divisions may reasonably require,
provided that such services are consistent with your position with Employer. You
shall observe all reasonable rules and regulations adopted by Employer in
connection with the operation of its business and carry out all instructions of
Employer. You will at all times perform all of the duties and obligations
required by you under this agreement in a loyal and conscientious manner and to
the best of your ability and experience.
5. Expenses
To the extent you incur necessary and reasonable business expenses in the
course of your employment, you shall be reimbursed for such expenses, subject to
Employer's then current policies regarding reimbursement of such business
expenses.
6. Other Benefits
You shall be entitled to those benefits which are standard for persons in
similar positions with Employer, including coverage under Employer's health,
life insurance and disability plans, and eligibility to participate in
Employer's 401(k) plan. Nothing paid to you under any such plans and
arrangements (nor any bonus or stock options which Employer's Board of Directors
(or the Compensation Committee of such Board of Directors), in its sole and
absolute discretion, shall provide to you) shall be deemed in lieu, or paid on
account, of your base salary. You expressly agree and acknowledge that after
expiration or early termination of the term of your employment under this
agreement, you are entitled to no additional benefits not expressly set forth in
this agreement, except as specifically provided under the benefit plans referred
to above and those benefit plans in which you subsequently may become a
participant, and subject in each case to the terms and conditions of each such
plan. Notwithstanding anything to the contrary set forth above, you shall be
entitled to receive those benefits provided by COBRA upon the expiration or
early termination of the term of your employment under this agreement.
2
7. Vacation and Paid Holidays
(a) You will be entitled to paid vacation days in accordance with the
normal vacation policies of Employer in effect from time to time, provided that
in no event shall you be entitled to less than twenty (20) days of paid vacation
per year.
(b) You shall be entitled to all paid holidays given by Employer to its
full-time employees.
8. Protection of Employer's Interests
During the term of your employment by Employer, you will not compete in any
manner, whether directly or indirectly, as a principal, employee, agent or
owner, with Employer, or any affiliate of Employer, except that the foregoing
will not prevent you from holding at any time less than five percent (5%) of the
outstanding capital stock of any company whose stock is publicly traded. All
rights worldwide with respect to any and all intellectual or other property of
any nature produced, created or suggested by you during the term of your
employment or resulting from your services which (i) relate in any manner at the
time of conception or reduction to practice to the actual or demonstrably
anticipated business of Employer, (ii) result from or are suggested by any task
assigned to you or any work performed by you on behalf of Employer, or (iii) are
based on any property owned or idea conceived by Employer, shall be deemed to be
a work made for hire and shall be the sole and exclusive property of Employer.
You agree to execute, acknowledge and deliver to Employer, at Employer's
request, such further documents, including copyright and patent assignments, as
Employer finds appropriate to evidence Employer's rights in such property. Any
confidential and/or proprietary information of Employer or any affiliate of
Employer shall not be used by you or disclosed or made available by you to any
person except as required in the course of your employment, and upon expiration
or earlier termination of the term of your employment, you shall return to
Employer all such information which exists in written or other physical form
(and all copies thereof) under your control. Without limiting the generality of
the foregoing, you acknowledge signing and delivering to Employer the Activision
Employee Proprietary Information Agreement and you agree that all terms and
conditions contained in such agreement, and all of your obligations and
commitments provided for in such agreement, shall be deemed, and hereby are,
incorporated into this agreement as if set forth in full herein. The provisions
of the immediately preceding four sentences of this paragraph shall survive the
expiration or earlier termination of this agreement.
9. Services Unique
You recognize that the services being performed by you under this agreement
are of a special, unique, unusual, extraordinary and intellectual character
giving them a peculiar value, the loss of which cannot be reasonably or
adequately compensated for in damages, and in the event of a breach of this
agreement by you (particularly, but without limitation, with respect to the
provisions hereof relating to the exclusivity of your services and the
provisions of paragraph 8 of this agreement), Employer shall, in addition to all
other remedies available to it, be entitled to equitable relief by way of
injunction and any other legal or equitable remedies.
3
10. Termination
(a) At any time during the term of your employment, Employer may terminate
your employment under this agreement for (i) your willful, reckless or gross
misconduct, (ii) your material breach of this agreement, or (iii) for other good
cause, as such term is defined under California law.
(b) You may terminate your employment under this agreement (i) upon
Employer's material breach of the agreement, (ii) upon any relocation of the
place at which you primarily are performing your services to Employer to a
location which is outside the Los Angeles county area, (iii) if Employer elects
to not actually use your services and continues to pay your base salary pursuant
to Paragraph 2(c) above for a period of one hundred twenty (120) consecutive
days, or (iv) in the event Employer commences the production or distribution of
an entertainment software or other product which is pornographic.
(c) In the event of the termination of your employment under this agreement
pursuant to Paragraph 10(a) or 10(b), all obligations of each party to the other
under this agreement shall immediately terminate.
(d) In the event of your death during the term of this agreement, this
agreement shall terminate and Employer only shall be obligated to pay your
estate or legal representative the salary provided for above to the extent
earned by your prior to such event. In the event you are unable to perform the
services required of you under this agreement as a result of any disability, and
such disability continues for a period of 60 or more consecutive days or an
aggregate of 90 or more days during any 12-month period during the term of this
agreement, then Employer shall have the right, at its option, to terminate your
employment under this agreement. Unless and until so terminated, during any
period of disability during which you are unable to perform the services
required of you under this agreement, your base salary shall be payable to the
extent of, and subject to, Employer's policies and practices then in effect with
regard to sick leave and disability benefits.
11. Use of Employee's Name
Employer shall have the right, but not the obligation, to use your name or
likeness for any publicity or advertising purpose.
12. Assignment
Employer may assign this agreement or all or any part of its rights under
this agreement to any entity which succeeds to all or substantially all of
Employer's assets (whether by merger, acquisition, consolidation, reorganization
or otherwise) or which Employer may own substantially, and this agreement shall
inure to the benefit of such assignee.
13. No Conflict with Prior Agreements
You represent to Employer that neither your commencement of employment
under this agreement nor the performance of your duties under this agreement
conflicts or will conflict with any contractual commitment on your part to any
third party, nor does it or will it violate or interfere with any rights of any
third party.
14. Post-Termination Obligations
4
After the expiration or earlier termination of your employment under this
agreement for any reason whatsoever, you shall not, either alone or jointly,
with or on behalf of others, directly or indirectly, whether as principal,
partner, agent, shareholder, director, employee, consultant or otherwise, at any
time during a period of one (1) year following such expiration or termination,
offer employment to, or solicit the employment or engagement of, or otherwise
entice away from the employment of Employer or any affiliated entity, either for
your own account or for any other person firm or company, any person who was
employed by Employer or any such affiliated entity during the term of your
employment, whether or not such person would commit any breach of his or her
contract of employment by reason of his or her leaving the service of Employer
or any affiliated entity.
15. Entire Agreement; Amendments; Waiver, Etc.
(a) This agreement supersedes all prior or contemporaneous agreements and
statements, whether written or oral, concerning the terms of your employment
with Employer, and no amendment or modification of this agreement shall be
binding against Employer unless set forth in a writing signed by Employer and
delivered to you. Without limiting the generality of the foregoing, you
acknowledge that this agreement supersedes your prior written agreement with
Employer dated April 1, 2000, and such agreement is hereby declared terminated
and of no further force and effect.
(b) You have given no indication, representation or commitment of any
nature to any broker, finder, agent or other third party to the effect that any
fees or commissions of any nature are, or under any circumstances might be,
payable by Employer or any affiliate of Employer in connection with your
employment under this agreement.
(c) No waiver by either party of any breach by the other party of any
provision or condition of this agreement shall be deemed a waiver of any similar
or dissimilar provision or condition at the same or any prior or subsequent
time.
(d) Nothing contained in this agreement shall be construed so as to require
the commission of any act contrary to law and wherever there is any conflict
between any provision of this agreement and any present or future statute, law,
ordinance or regulation, the latter shall prevail, but in such event the
provision of this agreement affected shall be curtailed and limited only to the
extent necessary to bring it within legal requirements.
(e) This agreement does not constitute a commitment of Employer with regard
to your employment, express or implied, other than to the extent expressly
provided for herein. Upon termination of this agreement, it is the contemplation
of both parties that your employment with Employer shall cease, and that neither
Employer nor you shall have any obligation to the other with respect to
continued employment. In the event that your employment continues for a period
of time following the stated expiration date of this contract, unless and until
agreed to in a new subscribed written document, such employment or any
continuation thereof is "at will," and may be terminated without obligation at
any time by either party giving notice to the other.
(f) This agreement shall be governed by and construed in accordance with
the laws of the State of California without regard to conflict of law
principles.
5
(g) In accordance with the Immigration Reform and Control Act of 1986,
employment under this agreement is conditioned upon satisfactory proof of your
identity and legal ability to work in the United States.
(h) To the extent permitted by law, you will keep the terms of this
agreement confidential, and you will not disclose any information concerning
this agreement to anyone other than your immediate family and professional
representatives (provided they also agree to keep the terms of this agreement
confidential).
16. Notices
All notices which either party is required or may desire to give the other
shall be in writing and given either personally or by depositing the same in the
United States mail addressed to the party to be given notice as follows:
To Employer: 3100 Ocean Park Boulevard
Santa Monica, California 90405
Attention: Senior Vice President
and General Counsel
To Employee: 1156 Via de la Paz
Pacific Palisades, California 90272
Either party may by written notice designate a different address for giving
of notices. The date of mailing of any such notices shall be deemed to be the
date on which such notice is given.
17. Headings
The headings set forth herein are included solely for the purpose of
identification and shall not be used for the purpose of construing the meaning
of the provisions of this agreement.
If the foregoing accurately reflects our mutual agreement, please sign
where indicated.
ACCEPTED AND AGREED TO:
Employer Employee
By: /s/ Ron Doornink By: /s/ Lawrence Goldberg
----------------------------- ----------------------------
Ron Doornink Lawrence Goldberg
President and Chief
Operating Officer
Date: May 24, 2001 Date: May 24, 2001
---------------------------- ---------------------------
Exhibit 10.2
As of April 1, 2001
Ms. Kathy Vrabeck
4 St. Laurent
Newport Coast, California 92657
Dear Ms. Vrabeck:
This letter confirms the terms of your employment by Activision Publishing,
Inc.("Employer").
1. Term
The term of your employment under this agreement shall commence on April 1,
2001 and expire on March 31, 2004, unless earlier terminated as provided below
2. Salary
(a) In full consideration for all rights and services provided by you under
this agreement, you shall receive an annual base salary of $330,000 during the
first year of the term, an annual base salary of $365,000 during the second year
of the term and an annual base salary of $400,000 during the third year of the
term.
(b) Base salary payments shall be made in accordance with Employer's then
prevailing payroll policy. Each base salary referred to in Paragraph 2(a) shall
constitute your minimum base salary during the applicable period, and your base
salary may be increased above the minimum at any time if Employer's Board of
Directors (or the Compensation Committee of such Board of Directors), in its
sole and absolute discretion, elects to do so. In the event of an increase in
your base salary beyond the applicable minimum base salary for a particular
period, such increased base salary shall then constitute your minimum base
salary for all subsequent periods under this agreement, but only to the extent
such increased base salary is in excess of the minimum base salary referred to
in Paragraph 2(a) for the corresponding period.
(c) Notwithstanding anything to the contrary set forth above but subject to
the right of termination granted to you pursuant to Paragraph 10(b), Employer
shall not be required to actually use your services, and payment of your base
salary during the applicable period of your employment under this agreement will
discharge Employer's obligations to you hereunder. Such payment, however, will
not discharge your obligations to Employer hereunder.
(d) In addition to your base salary, you shall be eligible to receive an
annual performance based bonus targeted at sixty percent (60%) of your annual
base salary, in compliance with Employer's standard bonus plan which is
established on a yearly basis by Employer's senior management and Board of
Directors (or the Compensation Committee of such Board of Directors) and is
based on a number of factors that may include, without limitation, the
achievement of corporate earning and operating margin goals.
(e) You also shall be eligible to receive annual stock options, under
Employer's existing or modified stock option plan, if Employer's Board of
Directors (or the Compensation Committee of such Board of Directors), in its
sole and absolute discretion, determines that the grant to you of additional
options is appropriate.
1
3. Title
You are being employed under this agreement in the position of Executive
Vice President, Global Publishing and Brand Management.
4. Duties
You shall personally and diligently perform, on a full-time and exclusive
basis, such services as Employer or any of its divisions may reasonably require,
provided that such services are consistent with your position with Employer. You
shall observe all reasonable rules and regulations adopted by Employer in
connection with the operation of its business and carry out all instructions of
Employer. You will at all times perform all of the duties and obligations
required by you under this agreement in a loyal and conscientious manner and to
the best of your ability and experience.
5. Expenses
To the extent you incur necessary and reasonable business expenses in the
course of your employment, you shall be reimbursed for such expenses, subject to
Employer's then current policies regarding reimbursement of such business
expenses.
6. Other Benefits
You shall be entitled to those benefits which are standard for persons in
similar positions with Employer, including coverage under Employer's health,
life insurance and disability plans, and eligibility to participate in
Employer's 401(k) plan. Nothing paid to you under any such plans and
arrangements (nor any bonus or stock options which Employer's Board of Directors
(or the Compensation Committee of such Board of Directors), in its sole and
absolute discretion, shall provide to you) shall be deemed in lieu, or paid on
account, of your base salary. You expressly agree and acknowledge that after
expiration or early termination of the term of your employment under this
agreement, you are entitled to no additional benefits not expressly set forth in
this agreement, except as specifically provided under the benefit plans referred
to above and those benefit plans in which you subsequently may become a
participant, and subject in each case to the terms and conditions of each such
plan. Notwithstanding anything to the contrary set forth above, you shall be
entitled to receive those benefits provided by COBRA upon the expiration or
early termination of the term of your employment under this agreement.
7. Vacation and Paid Holidays
(a) You will be entitled to paid vacation days in accordance with the
normal vacation policies of Employer in effect from time to time, provided that
in no event shall you be entitled to less than twenty (20) days of paid vacation
per year.
(b) You shall be entitled to all paid holidays given by Employer to its
full-time employees.
2
8. Protection of Employer's Interests
(a) During the term of your employment by Employer, you will not compete in
any manner, whether directly or indirectly, as a principal, employee, agent or
owner, with Employer, or any affiliate of Employer, except that the foregoing
will not prevent you from holding at any time less than five percent (5%) of the
outstanding capital stock of any company whose stock is publicly traded.
(b) All rights worldwide with respect to any and all intellectual or other
property of any nature produced, created or suggested by you during the term of
your employment or resulting from your services which (i) relate in any manner
at the time of conception or reduction to practice to the actual or demonstrably
anticipated business of Employer, (ii) result from or are suggested by any task
assigned to you or any work performed by you on behalf of Employer, or (iii) are
based on any property owned or idea conceived by Employer, shall be deemed to be
a work made for hire and shall be the sole and exclusive property of Employer.
You agree to execute, acknowledge and deliver to Employer, at Employer's
request, such further documents, including copyright and patent assignments, as
Employer finds appropriate to evidence Employer's rights in such property.
(c) Any confidential and/or proprietary information of Employer or any
affiliate of Employer shall not be used by you or disclosed or made available by
you to any person except as required in the course of your employment, and upon
expiration or earlier termination of the term of your employment, you shall
return to Employer all such information which exists in written or other
physical form (and all copies thereof) under your control. Without limiting the
generality of the foregoing, you acknowledge signing and delivering to Employer
the Activision Employee Proprietary Information Agreement and you agree that all
terms and conditions contained in such agreement, and all of your obligations
and commitments provided for in such agreement, shall be deemed, and hereby are,
incorporated into this agreement as if set forth in full herein. The provisions
of the immediately preceding four sentences of this paragraph shall survive the
expiration or earlier termination of this agreement.
9. Services Unique
You recognize that the services being performed by you under this agreement
are of a special, unique, unusual, extraordinary and intellectual character
giving them a peculiar value, the loss of which cannot be reasonably or
adequately compensated for in damages, and in the event of a breach of this
agreement by you (particularly, but without limitation, with respect to the
provisions hereof relating to the exclusivity of your services and the
provisions of paragraph 8 of this agreement), Employer shall, in addition to all
other remedies available to it, be entitled to equitable relief by way of
injunction and any other legal or equitable remedies.
10. Termination
(a) At any time during the term of your employment, Employer may terminate
your employment under this agreement for (i) your willful, reckless or gross
misconduct, (ii) your material breach of this agreement, or (iii) for other good
cause, as such term is defined under California law.
3
(b) You may terminate your employment under this agreement (i) upon
Employer's material breach under this agreement, (ii) upon any relocation of the
place at which you primarily are performing your services to Employer to a
location which is outside the metropolitan Los Angeles area, or (iii) if
Employer elects to not actually use your services and continues to pay your base
salary pursuant to Paragraph 2(c) above for a period of one hundred twenty (120)
consecutive days.
(c) In the event of the termination of your employment under this agreement
pursuant to Paragraph 10(a) or 10(b), all obligations of Employer to you under
this agreement shall immediately terminate.
(d) In the event of your death during the term of this agreement, this
agreement shall terminate and Employer only shall be obligated to pay your
estate or legal representative the salary provided for above to the extent
earned by your prior to such event. Except as otherwise prohibited by applicable
law (including, without limitation, pursuant to the Family Medical Leave Act),
in the event you are unable to perform the services required of you under this
agreement as a result of any disability, and such disability continues for a
period of 60 or more consecutive days or an aggregate of 90 or more days during
any 12-month period during the term of this agreement, then Employer shall have
the right, at its option, to terminate your employment under this agreement.
Unless and until so terminated, during any period of disability during which you
are unable to perform the services required of you under this agreement, your
base salary shall be payable to the extent of, and subject to, Employer's
policies and practices then in effect with regard to sick leave and disability
benefits.
11. Use of Employee's Name
Employer shall have the right, but not the obligation, to use your name or
likeness for any publicity or advertising purpose.
12. Assignment
Employer may assign this agreement or all or any part of its rights under
this agreement to any entity which succeeds to all or substantially all of
Employer's assets (whether by merger, acquisition, consolidation, reorganization
or otherwise) or which Employer may own substantially, and this agreement shall
inure to the benefit of such assignee.
13. No Conflict with Prior Agreements
You represent to Employer that neither your commencement of employment
under this agreement nor the performance of your duties under this agreement
conflicts or will conflict with any contractual commitment on your part to any
third party, nor does it or will it violate or interfere with any rights of any
third party.
14. Post-Termination Obligations
After the expiration or earlier termination of your employment under this
agreement for any reason whatsoever, you shall not, either alone or jointly,
with or on behalf of others, directly or indirectly, whether as principal,
partner, agent, shareholder, director, employee,
4
consultant or otherwise, at any time during a period of one (1) year following
such expiration or termination, offer employment to, or solicit the employment
or engagement of, or otherwise entice away from the employment of Employer or
any affiliated entity, either for your own account or for any other person firm
or company, any person who was employed by Employer or any such affiliated
entity during the term of your employment, whether or not such person would
commit any breach of his or her contract of employment by reason of his or her
leaving the service of Employer or any affiliated entity.
15. Entire Agreement; Amendments; Waiver, Etc.
(a) This agreement supersedes all prior or contemporaneous agreements and
statements, whether written or oral, concerning the terms of your employment
with Employer, and no amendment or modification of this agreement shall be
binding against Employer unless set forth in a writing signed by Employer and
delivered to you. Without limiting the generality of the foregoing, you
acknowledge that this agreement supersedes your prior written agreement with
Employer dated August 9, 1999, and such agreement is hereby declared terminated
and of no further force and effect.
(b) You have given no indication, representation or commitment of any
nature to any broker, finder, agent or other third party to the effect that any
fees or commissions of any nature are, or under any circumstances might be,
payable by Employer or any affiliate of Employer in connection with your
employment under this agreement.
(c) No waiver by either party of any breach by the other party of any
provision or condition of this agreement shall be deemed a waiver of any similar
or dissimilar provision or condition at the same or any prior or subsequent
time.
(d) Nothing contained in this agreement shall be construed so as to require
the commission of any act contrary to law and wherever there is any conflict
between any provision of this agreement and any present or future statute, law,
ordinance or regulation, the latter shall prevail, but in such event the
provision of this agreement affected shall be curtailed and limited only to the
extent necessary to bring it within legal requirements.
(e) This agreement does not constitute a commitment of Employer with regard
to your employment, express or implied, other than to the extent expressly
provided for herein. Upon termination of this agreement, it is the contemplation
of both parties that your employment with Employer shall cease, and that neither
Employer nor you shall have any obligation to the other with respect to
continued employment. In the event that your employment continues for a period
of time following the stated expiration date of this contract, unless and until
agreed to in a new subscribed written document, such employment or any
continuation thereof is "at will," and may be terminated without obligation at
any time by either party giving notice to the other.
(f) This agreement shall be governed by and construed in accordance with
the laws of the State of California without regard to conflict of law
principles.
(g) In accordance with the Immigration Reform and Control Act of 1986,
employment under this agreement is conditioned upon satisfactory proof of your
identity and legal ability to work in the United States.
5
(h) To the extent permitted by law, you will keep the terms of this
agreement confidential, and you will not disclose any information concerning
this agreement to anyone other than your immediate family and professional
representatives (provided they also agree to keep the terms of this agreement
confidential).
16. Notices
All notices which either party is required or may desire to give the other
shall be in writing and given either personally or by depositing the same in the
United States mail addressed to the party to be given notice as follows:
To Employer: 3100 Ocean Park Boulevard
Santa Monica, California 90405
Attention: Executive Vice President
and General Counsel
To Employee: 4 St. Laurent
Newport Coast, California 92657
Either party may by written notice designate a different address for giving
of notices. The date of mailing of any such notices shall be deemed to be the
date on which such notice is given.
17. Headings
The headings set forth herein are included solely for the purpose of
identification and shall not be used for the purpose of construing the meaning
of the provisions of this agreement.
If the foregoing accurately reflects our mutual agreement, please sign
where indicated.
ACCEPTED AND AGREED TO:
Employer Employee
By: /s/ Ron Doornink By: /s/ Kathy Vrabeck
---------------------------- ---------------------------
Ron Doornink Kathy Vrabeck
President and Chief
Operating Officer
Date: May 29, 2001 Date: May 29, 2001
---------------------------- ---------------------------