EXHIBIT 10.12
October 19, 1998
Xx. Xxx Xxxxxxxx
00 Xxxxxxxx
Xxxx xx Xxxx, Xxxxxxxxxx 00000
Dear Xx. Xxxxxxxx:
This letter confirms the terms of your employment by Activision, Inc.
("Employer").
1. TERM
The term of your employment under this agreement shall commence on
October 27, 1998 and expire on March 31, 2001, 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 a base salary at the annual rate of
$280,000 during the period commencing on October 27, 1998 and ending on March
31, 1999. You also shall receive an annual base salary of $300,000 during the
period commencing on April 1, 1999 and ending on March 31, 2000, and an annual
base salary of $320,000 during the period commencing on April 1, 2000 and ending
on March 31, 2001.
(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.
(c) Notwithstanding anything to the contrary set forth above, but subject
to the right of termination granted to you pursuant to Paragraph 11(b), Employer
shall not be required to actually use your services, and payment of your base
salary during the 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.
Page 1 June 25, 1999
(d) In addition to your base salary, you shall be eligible to receive a
performance based bonus of up to 60% of your annual base salary for each fiscal
year of Employer during which you are employed under this agreement (pro-rated
for the amount of time that you actually perform services for Employer during a
particular fiscal year). All bonus payments will be in compliance with
Employer's Management Bonus Plan for the applicable fiscal year, each of which
is determined by the Compensation Committee of the Board of Directors and is
based on a number of factors including the achievement of specific corporate
sales and profitability levels as well as a discretionary component which will
be based upon your performance, achievement of objectives and contribution to
the success of Employer's goals.
(e) You also are being granted, under Employer's 1998 Incentive Plan,
options to purchase 200,000 shares of Employer's common stock. The options will
be issued on the commencement date of your employment under this agreement and
will have an exercise price that will be the market price of Employer's common
stock on the date the options are issued. The options will vest as follows:
25,000 of such options will be immediately vested and exercisable; 58,334 of
such options will vest on October 27, 1999; 58,333 of such options will vest on
October 27, 2000; and 58,333 of such options will vest on October 27, 2001.
Notwithstanding the foregoing, if there is a "change of control" of Employer
(which term will be fully defined in the stock option certificate issued to you
by Employer with respect to such stock options and which will be consistent with
the definition contained in other stock option certificates previously issued by
Employer under its 1998 Incentive Plan) during the first twelve months of the
term of your employment under this agreement, and there is a difference of $5.00
or greater between the per share consideration to be received by the
shareholders of Employer upon consummation of the transaction causing such
change of control (the "Transaction Price") and your stock option exercise
price, then 50% of the foregoing options which have not yet vested as of the
date of the change of control shall instead vest on such change of control date,
and the remaining 50% of such unvested options shall instead vest on the first
anniversary of such change of control. If there is a change of control of
Employer during the first twelve months of the term of your employment under
this agreement and there is a difference of less than $5.00 between the
Transaction Price and your stock option exercise price, or there is a change of
control of Employer after the first twelve months of the term of your employment
under this agreement, then all of the foregoing options which have not yet
vested as of the date of the change of control shall instead vest on such change
of control date. The foregoing options will be governed in all other respects
by Employer's 1998 Incentive Plan.
(f) 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.
Page 2 June 25, 1999
3. TITLE
You are being employed under this agreement in the position of President
and Chief Operating Officer. In such capacity, you shall be responsible for
overseeing all of Employer's day to day operations. You will report directly to
the Co-Chairmen of Employer.
4. DUTIES
You shall personally and diligently perform, on a full-time and exclusive
basis, such services as Employer 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. In addition, Employer shall reimburse you for the cost
incurred by you to obtain disability insurance in excess of the insurance
provided to you by Employer to the extent necessary to provide you with an
aggregate monthly disability insurance benefit of $15,000, provided that such
cost is pre-approved in writing by Employer (such approval not to be
unreasonably withheld) and you provide Employer with documentation which
adequately evidences such cost. 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, subject in each case to the terms and conditions of each such plan.
Notwithstanding anything to the contrary set forth above, you shall be eligible
to
Page 3 June 25, 1999
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.
8. LOAN
As an additional incentive to the commencement of your employment with
Employer, and to help facilitate your relocation to the West Los Angeles area,
Employer will provide you with a loan in the principal amount of $100,000 by no
later than October 31, 1998. Such loan will bear interest at the rate of 6-3/4%
per annum and will be due and payable in full on October 31, 2000. However, the
principal amount and accrued interest on such loan will be forgiven on a pro
rata basis over the first twenty-four (24) months of your employment, provided
that you remain employed by Employer on the applicable date of forgiveness. In
order to receive the foregoing loan, you shall be required to execute a
promissory note substantially in the form of Exhibit A attached to this
agreement.
9. 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.
Page 4 June 25, 1999
(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 attached to this
agreement as Exhibit B, 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.
10. 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 9 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.
11. 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 any term or provision of this
agreement, or (iii) for other good cause, as such term is defined under
California law. In addition, but subject to the provisions of paragraph 11(c)
below, Employer may terminate your employment under this agreement at any time
without cause.
(b) You may terminate your employment under this agreement (i) upon
Employer's material breach of any term or provision of this agreement, (ii) 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 (iii) if there is a change of control of Employer and you
are then instructed to perform a job for Employer that does not have the same
level of responsibility as President or Chief Operating Officer of Employer.
Page 5 June 25, 1999
(c) In the event of the termination of your employment under this
agreement pursuant to paragraphs 11(a) or 11(b), all obligations of Employer to
you under this agreement shall immediately terminate; provided, however: (i) if
Employer terminates your employment under paragraph 11(a) without cause on or
prior to March 31, 2000, you shall continue to receive your base salary as
stated in paragraph 2(a) in accordance with Employer's then prevailing payroll
policy; or (ii) if Employer terminates your employment under Paragraph 11(a)
without cause after March 31, 2000, or if you terminate your employment under
Paragraph 11(b)(iii), then (A) Employer will pay you "continuation payments" at
a rate equal to your annual base salary in effect at the time of termination, in
accordance with Employer's then prevailing payroll policy, for a period of time
expiring on the sooner of (x) the date upon which you accept employment with
another employer, and (y) the date which is the first anniversary of your
termination date; (B) all accrued but unpaid principal and interest, if any,
under the loan reference in paragraph 8 will be immediately forgiven; (C) you
shall be entitled to receive a pro-rata bonus under Employer's Management Bonus
Plan for the fiscal year in which you are terminated that reflects the services
performed by you during the applicable portion of such fiscal year, subject to
you achieving the performance objectives stated in the Plan for such period; and
(D) to the extent applicable, you shall have a period of one year from the date
of termination to exercise all stock options previously issued to you under this
agreement that were vested on the date of termination.
(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 you 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.
12. 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.
13. ASSIGNMENT
Page 6 June 25, 1999
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.
14. 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.
15. 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, 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 on the last day of your
employment under this agreement, 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.
16. 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.
(b) Except for the fee payable by Employer to Xxxxxxx Xxxxxx, 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.
Page 7 June 25, 1999
(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) You hereby acknowledge that you have had an opportunity to seek legal
counsel of your own choice regarding the effect and import of entering into this
Agreement.
(g) 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.
(h) 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.
(i) 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).
17. 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: 0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Senior Vice President,
Business Affairs and General Counsel
Page 8 June 25, 1999
To Employee: 00 Xxxxxxxx
Xxxx xx Xxxx, Xxxxxxxxxx 00000
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.
18. 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: By:
-------------------------------- --------------------------------
Xxxxxx Xxxxxx Xxx Xxxxxxxx
Co-Chairman and Chief
Executive Officer
Date: Date:
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Page 9 June 25, 1999
EXHIBIT A
PROMISSORY NOTE
$100,000.00 October __, 0000
Xxxxx Xxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, and subject to the provisions of Paragraph 1 below, the
undersigned, Xxx Xxxxxxxx ("Maker"), promises to pay to Activision, Inc.
("Holder"), or its order, the sum of One Hundred Thousand Dollars ($100,000.00),
together with simple interest on the unpaid principal amount from the date
hereof at the rate of Six and Three Quarters Percent (6-3/4%) per annum, payable
monthly. The entire principal indebtedness under this Promissory Note and all
accrued but unpaid interest, or so much thereof as may remain unpaid at the
time, shall become due and payable on October __, 2000, and payment of said
principal indebtedness, or the balance thereof, and all interest thereon,
together with all other sums due under the terms hereof, may be enforced and
recovered at once, time being of the essence.
1. FORGIVENESS OF INDEBTEDNESS. The amount of principal due hereunder
automatically will be reduced by Four Thousand One Hundred Sixty-Six and 67/100
Dollars ($4,166.67) per month on the ___ day of each month, commencing on
November __, 1998, provided that the undersigned continues to be employed by the
Holder on the applicable reduction date. All interest which is accrued but
unpaid as of a particular principal reduction date also shall be forgiven to the
extent a portion of the principal is forgiven on such date.
2. PREPAYMENT. Maker may prepay all or any portion of the principal
amount of this Promissory Note and the interest due thereon at any time or times
during the term of this Promissory Note without any other premium or penalty.
3. PAYMENT CREDITS. Each payment shall, when made, be credited first to
interest then due, then to other expenses payable to Holder, including any
collection costs, and the remainder to principal, and interest shall thereupon
cease upon the principal so credited. All payments hereunder shall be made in
lawful money of the United States of America at the principal executive offices
of Holder located at 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000.
4. ATTORNEYS' FEES. Maker promises to pay all costs and expenses,
including reasonable attorneys' fees, incurred in the collection and enforcement
of this Promissory Note.
5. MAXIMUM INTEREST. The provisions of this Promissory Note shall not
have the effect of, or be construed as, requiring or committing Maker to pay
interest in excess of the highest rate per annum allowed by the laws for such
jurisdiction whose laws shall govern this Promissory Note. If, under any
circumstance, Holder shall ever receive as interest an
Page 10 June 25, 1999
amount which would exceed the highest applicable lawful rate as determined by
a court of competent jurisdiction, then such amount which would be excessive
interest shall, ipso facto, be applied to the reduction of the unpaid
principal balance due hereunder and not to the payment of interest. This
provision shall control and supersede every other provision of this
Promissory Note.
6. EXERCISE OF RIGHTS. No single or partial exercise of any power
granted to Holder under this Promissory Note shall preclude other or further
exercise thereof or the exercise of any other power. No delay or omission on
the part of Holder in exercising any right under this Promissory Note shall
operate as a waiver of such right or of any other right.
7. WAIVER OF NOTICE. The makers, endorsers, guarantors and sureties of
this Promissory Note, and each of them, hereby waive diligence, demand,
presentment for payment, notice of nonpayment, protest and notice of protest,
and specifically consent to and waive notice of any renewals or extensions of
this Promissory Note, whether made to or in favor of the makers or any other
person or persons. The pleading of any statute of limitations as a defense to
any demand against the makers, endorsers, guarantors or sureties is expressly
waived by each and all of said parties.
8. SUCCESSORS AND ASSIGNS. The terms of this Promissory Note apply to,
inure to the benefit of, and bind all parties hereto, their heirs, legatees,
devisees, administrators, executors, successors and assigns.
9. SEVERABILITY. If any portion of this Promissory Note shall be held
invalid or unenforceable, then the remainder of this Promissory Note shall be
considered valid and enforceable according to its terms.
10. MISCELLANEOUS. This Promissory Note shall be governed and interpreted
in accordance with the laws of the State of California. If suit is instituted
by Maker against Holder or by Holder against Maker for any cause or matter
arising from or in connection with the respective rights or obligations of Maker
or the holder of this Promissory Note hereunder, the sole jurisdiction and venue
for such action shall be the Superior Court of the State of California in and
for the County of Los Angeles. Captions are for convenience only and shall not
be used in construing meaning. This Promissory Note may only be changed,
modified, or amended in writing by the mutual consent of Maker and the Holder.
The provisions of this Promissory Note may only be waived in or by a writing
signed by the party against whom enforcement of any waiver is sought.
IN WITNESS WHEREOF, Maker has executed this Promissory Note as of the date
first written above.
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XXX XXXXXXXX
Page 11 June 25, 1999
EXHIBIT B
ACTIVISION, INC.
EMPLOYEE PROPRIETARY INFORMATION AGREEMENT
In consideration of and as a condition of my employment by ACTIVISION, INC.
and/or by companies which it owns, controls, or is affiliated with, and their
successors in business (the "Company" ), and the compensation now and hereafter
paid to me for such employment, I hereby agree as follows:
1. CONFIDENTIALITY. I agree to hold in strictest confidence and not to
disclose, make any use of, except for the benefit of the Company, lecture upon
or publish, at any time either during the term of or subsequent to my
employment, any of the Company's Proprietary Information (as defined below)
which I may produce, obtain or otherwise acquire during the course of my
employment, except as the Company may otherwise consent to in writing in its
sole and absolute discretion. I further agree not to deliver, reproduce or in
any way allow such Proprietary Information, or any documentation relating to
such information, to be delivered or used by any third parties without the
specific written direction or consent of a duly authorized representative of the
Company.
The term "Proprietary Information" shall mean any and all trade secrets,
confidential knowledge, data or any other proprietary information pertaining to
any business of the Company or any of its clients, customers or consultants,
licensees or affiliates. By way of illustration but not limitation,
"Proprietary Information" includes (a) inventions, ideas, improvements,
discoveries, trade secrets, processes, data, programs, knowledge, know-how,
designs, techniques, formulas, test data, computer code, other works of
authorship and designs whether or not patentable, copyrightable, or otherwise
protected by law, and whether or not conceived of or prepared by me, either
alone or jointly with others (hereinafter collectively referred to as
"Inventions"); (b) information regarding research, development, new products and
services, marketing plans and strategies, merchandising and selling, business
plans, strategies, forecasts, projections, profits, investments, operations,
financings, records, budgets and unpublished financial statements, licenses,
prices and costs, suppliers and customers; and (c) identity, requirements,
preferences, practices and methods of doing business of specific parties with
whom the Company transacts business, and information regarding the skills and
compensation of other employees of the Company and independent contractors
performing services for the Company.
2. THIRD PARTY INFORMATION. I understand that the Company, from time to time,
may enter into agreements with other parties which impose obligations or
restrictions on the Company regarding Inventions made during the course of the
work under such agreements or regarding the confidential nature of such works,
or otherwise receive from third parties confidential or proprietary information
("Third Party Information") subject to a duty on the Company's part to maintain
the confidentiality of such information and to use it only for certain limited
purposes. During the term of my employment and thereafter, I agree to be bound
by all such obligations and restrictions, will hold Third Party Information in
the strictest confidence, will not disclose (to anyone other than Company
personnel who need to know such information in connection with their work for
the Company) or use, except in connection with my work for the Company, Third
Party Information unless expressly authorized by the Company in writing, and
will otherwise take all action necessary to discharge the obligations to the
Company arising in connection with such Third Party Information.
3. WORK FOR HIRE STATEMENT. I hereby acknowledge and agree that all original
works of authorship (the "Works of Authorship") which are produced, developed or
authored by me (whether alone or jointly with others), or otherwise resulting
from my work within the scope of my employment with the Company and which are
protectible by copyright are "works made for hire," as that term is defined in
the United States Copyright Act (17 U.S.C., Section 101). In the event that any
rights to the Works of Authorship are deemed not to be works made for hire, or
in the event that I should, by operation of law, be deemed to retain any rights
in such Works of
Page 12 June 25, 1999
Authorship, I hereby irrevocably assign, without any further consideration
and regardless of any use by the Company of any such Work of Authorship, all
of my rights, title and interest, if any, in and to such Works of Authorship
to the Company. I agree that the Company, as the owner of all rights to the
Works of Authorship, has the full and complete right to prepare and create
derivative works based upon the Works of Authorship and any derivative works
of such Works of Authorship and to use, reproduce, publish, print, copy,
market, advertise, distribute, transfer, sell, publicly perform and publicly
display, and otherwise exploit by all means now known or later developed,
such Works of Authorship and derivative works anywhere throughout the world.
4. MORAL RIGHTS. I hereby irrevocably and unconditionally transfer and assign
to the Company, without any further consideration, any and all Moral Rights (as
defined below) I may have in or with respect to any and all Works of Authorship.
To the extent that I cannot assign such rights, I hereby waive and agree never
to assign such rights against the Company, the Company's successors-in-interest,
or any of their licensees. "Moral Rights" shall mean any right to (i) divulge
such Inventions to the public; (ii) retract such Invention from the public;
(iii) claim authorship of such Invention; (iv) object to any distortion,
mutilation, or other modification of such Invention; and (v) any and all similar
rights, existing under judicial or statutory law of any country or jurisdiction
in the world, or under any treaty regardless of whether or not such right is
called or generally referred to as a "moral right."
5. ASSIGNMENT OF INVENTIONS.
(a) In addition to the foregoing, I hereby assign and transfer to the
Company my entire right, title and interest in and to all Inventions, whether or
not patentable, and whether or not reduced to practice, made, learned or
conceived by me (whether alone or jointly with others) during the period of my
employment with the Company which relate in any manner at the time of conception
or reduction to practice to the actual or demonstrably anticipated research or
product development by the Company or to its business, or result from or are
suggested by any task assigned to me or any work performed by me for or on
behalf of the Company. I agree that all such Inventions shall be the sole and
exclusive property of the Company and its assigns, and the Company and its
assigns shall be the sole owners of all Inventions and any and all patents,
copyrights and other proprietary rights related thereto; provided, however, that
I hereby acknowledge and agree that this Agreement does not require assignments
of an Invention which qualifies fully and expressly for protection under Section
2870 of the California Labor Code.
(b) If I have any right or rights to Inventions that cannot be assigned to
the Company or waived by me, I unconditionally grant to the Company during the
term of such rights, an exclusive, irrevocable, perpetual, worldwide, fully paid
and royalty-free license, with rights to sublicense through multiple levels of
sublicenses, to use, reproduce, publish, create derivative works of, market,
advertise, distribute, sell, publicly perform and publicly display and otherwise
exploit by all means now known or later developed, such Inventions.
6. DISCLOSURE OF INVENTIONS; PATENTS. I agree that in connection with any
Invention:
(a) I will disclose such Invention promptly in writing to my immediate
supervisor at the Company, with a copy to the Company's then acting Chief
Operating Officer, regardless of whether I believe the invention is protected by
Section 2870 of the California Labor Code, in order to permit the Company to
claim rights to which it may be entitled under this Agreement. Such disclosure
shall be received in confidence by the Company.
(b) I will, at the Company's request, promptly execute a written
assignment of title to the Company for any Invention required to be assigned by
Paragraph 4 ("Assignable Invention") and I will preserve any such Assignable
Invention as confidential information of the Company.
(c) Upon request, I agree to assist the Company or its nominee (at its
expense) during and at any time subsequent to my employment in every reasonable
way to obtain for its
Page 13 June 25, 1999
own benefit patents and copyrights for such Assignable Inventions in any and
all countries, which Inventions shall be and remain the sole and exclusive
property of the Company or its nominee whether or not patented or
copyrighted. I agree to execute such papers and perform such lawful acts as
the Company deems to be necessary to allow it to exercise all rights and
interest in such patents and copyrights.
7. EXECUTION OF DOCUMENTS.
(a) In connection with this Agreement, I further agree to execute,
acknowledge and deliver to the Company or its nominee upon request and at its
expense all such documents, including application for patents and copyrights and
assignments of inventions, patents and copyrights to be issued therefor, as the
Company may determine necessary or desirable to apply for, and obtain letters,
patents and copyrights on such assignable invention in any and all countries
and/or to protect the interest of the Company or its nominee in such inventions,
patents or copyrights and to vest title thereto in the Company or its nominee.
(b) In the event the Company is unable, after reasonable efforts, to
secure my signature on any document or documents needed to apply for or
prosecute any patent, copyright or other right of protection relating to an
Invention, whether because of my physical or mental incapacity or for any other
reason whatsoever, I hereby irrevocably designate and appoint the Company and
its duly authorized officers and agents as my agent and attorney-in-fact, to act
for and in my behalf and stead to execute and file any such application or
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyrights or similar protections thereon
with the same legal force and effect as if executed by me; it is being expressly
understood and intended by me that the grant of the foregoing irrevocable power
of attorney is coupled with an interest.
8. MAINTENANCE OF RECORDS. I agree to keep and maintain adequate and current
written records of all inventions made by me (in the form of notes, sketches,
and drawings as may be specified by the Company), which records shall be
available to and remain the sole property of the Company at all times.
9. PRIOR INVENTIONS. It is understood that all Inventions, if any, patented
or unpatented, which are made by me prior to my employment by the Company, are
excluded from the scope of this Agreement. To preclude any possible uncertainty,
I have set forth on Exhibit I attached to this Agreement a complete list of all
my prior Inventions, including those which are the property of a previous
employer. I represent and covenant that the list is complete and that, if no
items are on the list, I have no such prior Inventions. I agree to notify the
Company in writing before I make any disclosure or perform any work on behalf of
the Company which appears to threaten or conflict with proprietary rights I
claim in any Invention or idea. In the event of my failure to give such notice,
I agree that I will make no claim against the Company with respect to such
Inventions or ideas.
10. RETURN OF COMPANY PROPERTY. I acknowledge and agree that all files,
accounts, records, materials, documents, drawings, sketches, designs, diagrams,
models, blue-prints, plans, specifications, manuals, books, forms, receipts,
notes, reports, memoranda, studies, data, calculations, recordings, catalogues,
compilations of information, correspondence and all copies, abstracts and
summaries of the foregoing, instruments, tools and equipment and all other
physical items related to the Company or to my employment with the Company,
other than merely personal items, whether of a public nature or not, and whether
prepared by me or not, are and shall remain the sole and exclusive property of
the Company and shall not be removed from the premises of the Company, except as
required in the course of employment by the Company, without prior written
consent of the Company in each instance. In the event of termination of my
employment with the Company for any reason whatsoever, I agree to promptly
surrender and deliver to the Company all of the foregoing property, and I will
not take with me any description containing or pertaining to any Proprietary
Information which I may produce or obtain during the course of my employment. I
agree to sign and deliver the "Termination Certification" attached to this
Agreement as Exhibit II.
Page 14 June 25, 1999
11. TRADE SECRETS OF OTHERS. I represent that my performance of all the terms
of this Agreement and as an employee of the Company does not and will not breach
any agreement to keep in confidence Proprietary Information, knowledge or data
acquired by me in confidence or in trust prior to my employment with the
Company, and during my employment by the Company, I will not improperly use or
disclose to the Company, or induce the Company to use, any confidential or
proprietary information or material belonging to any previous employer or other
parties. I have not brought and will not bring onto the premises of the Company
or use in the performance of my responsibilities at the Company any unpublished
documents or any property belonging to any previous employer or any other person
to whom I have an obligation of confidentiality unless consented to in writing
by that previous employer or person. I agree not to enter into any agreement
either written or oral in conflict with this Agreement.
12. CONFLICTING EMPLOYMENT. I agree that during my employment with the
Company, I will not engage in any other employment, occupation, consulting or
other activity relating to the business in which the Company is now or may
hereafter become engaged, or which would otherwise conflict with my obligations
to the Company.
13. ENFORCEMENT.
(a) I understand and agree that in the event of a prospective or actual
breach of this Agreement by me, damages would not be an adequate remedy to
compensate the Company for the losses suffered as a result of such breach.
Accordingly, in addition to all other rights and remedies the Company has at law
or in equity, in the event of a threatened or actual breach of any of the terms
and provisions of this Agreement, the Company shall be entitled to a temporary
restraining order, and to temporary and permanent injunctive relief, to prevent
or terminate such anticipated or actual breach, without the necessity of proving
actual damages or being required to post any bond or other undertaking in
connection with any such action, provided that nothing in this Agreement shall
be construed to limit the damages otherwise recoverable by the Company in any
such event.
(b) In addition, the Company shall have the right to inform any person,
company, organization or business entity, and the principals of the foregoing,
and any other third parties that the Company reasonably believes to be receiving
or intending to receive from me any Proprietary Information in violation of the
terms of this Agreement, that participation by such entity or persons with me in
activities in violation of this Agreement may give rise to claims by Activision
against such entity, persons or third parties.
14. PURPOSE AND INTENT. I acknowledge and agree that this Agreement does not
constitute an agreement of employment and that nothing in this Agreement shall
confer any right upon me with respect to my employment by the Company,
including, without limitation continuation of such employment.
15. REPRESENTATIONS. I represent and warrant to the Company that:
(a) This Agreement does not constitute a violation of any other agreement
to which I am a party and it has been executed and delivered by me after having
an opportunity to consult with my legal and other professional counsel and
advisors.
(b) I have full power and authority to enter into, and have obtained all
necessary authorizations and approvals required for the execution and deliver
of, this Agreement.
(c) I have taken all necessary actions to execute and deliver this
Agreement, and this Agreement constitutes my valid and binding agreement,
enforceable in accordance with its terms.
16. MODIFICATION. This Agreement may not be changed, modified, released,
discharged, abandoned, or otherwise amended, in whole or in part, except by an
instrument in
Page 15 June 25, 1999
writing, signed by me and the Company. I agree that any subsequent change or
changes in duties, salary, or compensation shall not affect the validity of
this Agreement.
17. ENTIRE AGREEMENT. I acknowledge receipt of this Agreement, and agree that
with respect to the subject matter of this Agreement it is my entire agreement
with the Company, superseding any previous written communications,
representations, understandings or agreements with the Company or any of its
officers or representatives.
18. SEVERABILITY. The provisions of this Agreement are severable and if any
one or more provisions may be determined to be unenforceable, in whole or in
part, the remaining provisions, and any partially unenforceable provisions to
the extent enforceable, shall nevertheless be binding and enforceable.
19. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon my heirs,
executors, administers and other legal representatives and is for the benefit of
the Company, its successors and assigns.
20. GOVERNING LAW. This Agreement has been executed and delivered by the
parties hereto in California, and shall be governed by and construed in
accordance with the internal laws (and not laws pertaining to conflicts or
choice of law) of the State of California in all respects, including all matters
of validity, construction and performance of this Agreement. All parties
consent to the exercise of personal jurisdiction over them in California and
agree that any lawsuit or arbitration arising out of or relating to this
Agreement shall be brought exclusively in a court of competent subject matter
jurisdiction located within the County of Los Angeles, State of California.
21. COUNTERPARTS. This Agreement may be signed in two counterparts, each of
which shall be deemed an original and both of which shall together constitute
one agreement.
22. FAILURE TO ENFORCE. The failure of the Company to enforce any threatened
or existing violation, default or breach of this Agreement shall not be deemed a
waiver of such a violation, default or breach, and the Company shall have the
right to enforce the same at a later time and the right to waive in writing any
condition imposed herein for its benefit without thereby waiving any other
provision or condition.
ACTIVISION, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
Accepted and Agreed:
By:
--------------------------------- ---------------------------------
Employee Signature Employee Name (Please Print)
Title:
------------------------------
Employee Job Title
Date:
-------------------------------
------------------------------------
Page 16 June 25, 1999
Witness
Page 17 June 25, 1999
EXHIBIT I
LIST OF PRIOR INVENTIONS
TITLE DATE IDENTIFYING NUMBER OR DESCRIPTION
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Page 18 June 25, 1999
EXHIBIT II
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed to
return, any files, accounts, records, materials, documents, drawings, sketches,
designs, diagrams, models, blue-prints, plans, specifications, manuals, books,
forms, receipts, notes, reports, memoranda, studies, data, calculations,
recordings, catalogues, compilations of information, correspondence and all
copies, abstracts and summaries of the foregoing, instruments, tools and
equipment and all other physical items that are property of Activision, Inc.
(the "Company") or are otherwise related to my employment with the Company, or
any other property belonging to the Company and/or companies it owns, controls,
or is affiliated with, or their respective successors and assigns.
I further certify that I have complied with and will continue to comply with all
terms of the Employee Proprietary Information Agreement signed by me with the
Company, including, without limitation, the reporting of any Inventions (as
defined therein) conceived or made by me and covered by such agreement.
I further agree that in compliance with the Employee Proprietary Information
Agreement, I will preserve as confidential all trade secrets, confidential
information, knowledge, data or other information relating to products,
processes, know-how, designs, formulas, test data, customer lists and other
information identified as "Proprietary Information" of the Company, companies it
owns, controls, or which are affiliated with the Company, or their successors
and assigns under the terms of the Employee Proprietary Information Agreement.
----------------------------------- ---------------------------------------
Employee Signature Date
Page 19 June 25, 1999
