EXHIBIT 10.27
April 7, 2000
Mr. Michael Pole
290 Ridgeway Road
Woodside, California 94062
Dear Mr. Pole:
This letter confirms the terms of your employment by Activision, Inc.
("Employer").
1. TERM
(a) The initial term of your employment under this agreement shall
commence on May 15, 2000 and shall expire on April 30, 2003 (the "initial
period").
(b) Employer shall have the irrevocable option to extend the term of this
agreement beyond the initial period for an additional successive one year
period.
(c) The option granted to Employer in Paragraph 1(b) of this agreement
will be exercised by Employer by written notice given to you at least sixty (60)
days prior to the expiration of the initial period.
2. SALARY
(a) In full consideration for all rights and services provided by you
under this agreement, you shall be paid a base salary at the annual rate of
$300,000 during the portion of the initial period commencing on May 15, 2000 and
ending on April 30, 2001, an annual base salary of $320,000 during the portion
of the initial period commencing on May 1, 2001 and ending on April 30, 2002,
and an annual base salary of $340,000 during the portion of the initial period
commencing on May 1, 2002 and ending on April 30, 2003. If Employer exercises
its option pursuant to Paragraph 1(b), you shall be paid an annual base salary
of $360,000 during such option period.
(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 12(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 a
performance based bonus targeted at 60% of your annual base salary for each
fiscal year of
Page 1 June 21, 2000
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 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 specific
corporate and divisional sales, operating margins and profitability levels.
(e) You also are being granted, under Employer's 1999 Incentive Plan,
options to purchase 325,000 shares of Employer's common stock. The options will
be issued on April 7, 2000 and will have an exercise price of $8.00 per share
(i.e., the market price of Employer's common stock on the date the options are
issued). 50,000 of such options will vest on May 15, 2000; 100,000 of such
options will vest on May 1, 2001; 100,000 of such options will vest on May 1,
2002; and 75,000 of such options will vest on May 1, 2003. The foregoing options
will be governed in all other respects by Employer's 1999 Incentive Plan. 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, Worldwide Studios.
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. 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
Page 2 June 21, 2000
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 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 fifteen (15) days of paid
vacation per year.
(b) You shall be entitled to all paid holidays given by Employer to its
full-time employees.
8. LOANS
(a) As an additional incentive to the commencement of your employment with
Employer, Employer will provide you with a loan in the principal amount of
$100,000 by no later than April 30, 2000. Such loan will bear interest at the
rate of 6-3/4% per annum and will be due and payable in full on April 30, 2002.
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 the event and to the extent the loan is forgiven, then within
thirty (30) days after the end of each calendar year you shall be paid an
additional "gross up" amount to cover the income taxes payable by you as a
result of any forgiveness of indebtedness income that you earn during such
calendar year in connection with the foregoing. 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.
(b) Employer also will provide you with an additional loan of $100,000 by
no later than April 30, 2000. Such loan also will bear interest at the rate of
6-3/4% per annum and will be due and payable in full on April 30, 2002. However,
the principal amount and accrued interest on such loan will be forgiven in full
on April 30, 2002 if the closing stock price of Employer's common stock as
reported on NASDAQ is not at least $16.00 per share (adjusted to reflect stock
splits, stock dividends, combinations of shares and similar transactions
occurring after April 7, 2000) for five (5) consecutive trading days from the
date the loan is made through April 30, 2002. In order to receive the foregoing
loan, you shall be required to execute a promissory note substantially in the
form of Exhibit B attached to this agreement.
9. REIMBURSEMENT OF MOVING AND TEMPORARY LIVING EXPENSES
Employer shall reimburse you for the following expenses actually incurred
by you in connection with the moving of your personal and household goods to the
Los Angeles area: the reasonable expenses actually incurred by you for temporary
living accommodations pending your search for a permanent residence in the Los
Angeles area, subject to a maximum reimbursement for up to two month's temporary
living
Page 3 June 21, 2000
accommodations; customary home purchase expenses, subject to a maximum
reimbursement of $50,000; expenses relating to the transport of household goods;
and rental car expenses; provided, however, in each case such expenses must be
pre-approved in writing by Employer and you must provide Employer with
documentation which adequately evidences such expenses.
10. 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 attached to this
agreement as Exhibit C, 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.
11. 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 10 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.
Page 4 June 21, 2000
12. 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.
(b) You may terminate your employment under this agreement (i) upon
Employer's material breach of any term or provision of this agreement, or (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.
(c) In the event of the termination of your employment under this
agreement pursuant to paragraphs 12(a) or (b), all obligations of Employer to
you under this agreement shall immediately terminate.
(e) 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.
13. 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.
14. 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.
15. 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.
Page 5 June 21, 2000
16. 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.
17. 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) 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) 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.
Page 6 June 21, 2000
(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).
18. 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: 290 Ridgeway Road
Woodside, California 94062
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.
19. 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/ Lawrence Goldberg By: /s/ Michael Pole
---------------------------- ----------------------------
Lawrence Goldberg Michael Pole
Executive Vice President
and General Counsel
Date: 4/14/00 Date: 4/14/00
-------------------------- --------------------------
Page 7 June 21, 2000
EXHIBIT A
PROMISSORY NOTE
$100,000.00 April __, 2000
Santa Monica, California
FOR VALUE RECEIVED, and subject to the provisions of Paragraph 1 below, the
undersigned, Michael Pole ("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 April 30, 2002, 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 last day of each month, commencing on May
31, 2000, 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 3100 Ocean Park Boulevard, Santa Monica, California 90405.
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 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
Page 8 June 21, 2000
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.
------------------------------
Michael Pole
Page 9 June 21, 2000
EXHIBIT B
PROMISSORY NOTE
$100,000.00 April __, 2000
Santa Monica, California
FOR VALUE RECEIVED, and subject to the provisions of Paragraph 1 below, the
undersigned, Michael Pole ("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. 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 April 30, 2002, 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. In the event the closing stock price of
Holder's common stock as reported on NASDAQ is not at least $16.00 per share
(adjusted to reflect stock splits, stock dividends, combinations of shares and
similar transactions occurring after the date hereof) for five (5) consecutive
trading days from the date of this Promissory Note through April 30, 2000, then
on April 30, 2002 the entire principal amount of this Promissory Note and all
interest due thereon will be forgiven, and Maker will have no obligation to make
any payment to Holder hereunder.
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 3100 Ocean Park Boulevard, Santa Monica, California 90405.
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 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
Page 10 June 21, 2000
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.
------------------------------
MICHAEL POLE
Page 11 June 21, 2000
EXHIBIT C
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.
Notwithstanding the foregoing, the term "Proprietary Information" does not
include any information which (i) is or becomes publicly available or part of
the public domain through no fault of my own; (ii) is specifically authorized in
writing by the Company to become publicly known; (iii) is rightfully received
from a third party on a non-confidential basis, provided that the third party is
not known to me to be bound by a confidentiality obligation to the Company, or
(iv) was already properly known to me without restriction from the Company at
the time of my receipt.
Page 12 June 21, 2000
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 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."
Page 13 June 21, 2000
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 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.
Page 14 June 21, 2000
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
Page 15 June 21, 2000
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.
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
Page 16 June 21, 2000
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 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
Page 17 June 21, 2000
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: /s/ Michael Pole
---------------------------------------- --------------------------------
Employee Signature Employee Name (Please Print)
Title: Executive Vice President W.W. Studios
--------------------------------------
Employee Job Title
Date: 4/14/00
--------------------------------------
- -------------------------------------------
Witness
Page 18 June 21, 2000
EXHIBIT I
LIST OF PRIOR INVENTIONS
TITLE DATE IDENTIFYING NUMBER OR DESCRIPTION
None
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Page 19 June 21, 2000
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.
/s/ Michael Pole 4/14/00
- ------------------------------------ ------------------------------
Employee Signature Date
Page 20 June 21, 2000