EXHIBIT 10.13
March 4, 1999
Mr. Lawrence Goldberg
1156 Via de la Paz
Pacific Palisades, California 90272
Dear Mr. Goldberg:
This letter confirms the terms of your employment by Activision, Inc.
("Employer").
1. TERM
The term of your employment under this agreement shall commence on
April 1, 1999 and expire on April 1, 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 an annual base salary of $220,000
during the first year of the term and an annual base salary of $240,000
during the second year of the term
(b) Base salary payments shall be made in accordance with Employer's
then prevailing payroll policy. Each base salary referred to in Paragraph 2(a)
shall constitute your minimum base salary during the applicable period, and
your base salary may be increased above the minimum at any time if Employer's
Board of Directors (or the Compensation Committee of such Board of Directors),
in its sole and absolute discretion, elects to do so. In the event of an
increase in your base salary beyond the applicable minimum base salary for a
particular period, such increased base salary shall then constitute your
minimum base salary for all subsequent periods under this agreement.
(c) Notwithstanding anything to the contrary set forth above, but
subject to the right of termination granted to you pursuant to Paragraph 10(b),
Employer shall not be required to actually use your services, and payment of
your base salary during the applicable period of your employment under this
agreement will discharge Employer's obligations to you hereunder. Such
payment, however, will not discharge your obligations to Employer hereunder.
(d) In addition to your base salary, you shall be eligible to receive
an annual performance base bonus of up to sixty percent (60%) of your annual
base salary, in compliance with Employer's standard bonus plan which is
established on a yearly basis by Employer's senior management and Board of
Directors (or the Compensation Committee of such Board of Directors) and is
based on a number of factors that may
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include, without limitation, the achievement of corporate earnings, return on
equity goals, as well as discretionary component which will be based upon
your individual performance, achievement of objectives and contribution to
the success of the corporate goals and objectives.
(e) You also are being granted, under Employer's existing or modified
stock option plan, options to purchase 33,000 shares of Employer's common
stock. The options will be issued on March 4, 1999 and will vest ratably over
three years, with one third (1/3) of the amount granted vesting at the end of
each such year. Such options will have an exercise price that will be the
market price of such common stock on the date the options are issued and will
be governed in all other respects by Employer's stock option plan in effect
at the time of grant. You also shall be eligible to receive additional
options, under Employer's existing or modified stock option plan, if
Employer's Board of Directors (or the Compensation Committee of such Board of
Directors), in its sole and absolute discretion, determines that the grant to
you of additional options is appropriate.
3. TITLE
You are being employed under this agreement in the position of Senior
Vice President, Business Affairs and General Counsel.
4. DUTIES
You shall personally and diligently perform, on a full-time and
exclusive basis, such services as Employer or any of its divisions may
reasonably require, provided that such services are consistent with your
position with Employer. You shall observe all reasonable rules and
regulations adopted by Employer in connection with the operation of its
business and carry out all instructions of Employer. You will at all times
perform all of the duties and obligations required by you under this
agreement in a loyal and conscientious manner and to the best of your ability
and experience.
5. EXPENSES
To the extent you incur necessary and reasonable business expenses in
the course of your employment, you shall be reimbursed for such expenses,
subject to Employer's then current policies regarding reimbursement of such
business expenses.
6. OTHER BENEFITS
You shall be entitled to those benefits which are standard for persons
in similar positions with Employer, including coverage under Employer's
health, life insurance and disability plans, and eligibility to participate
in Employer's 401(k) plan. Nothing paid to you under any such plans and
arrangements (nor any bonus or stock options
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which Employer's Board of Directors (or the Compensation Committee of such
Board of Directors), in its sole and absolute discretion, shall provide to
you) shall be deemed in lieu, or paid on account, of your base salary. You
expressly agree and acknowledge that after expiration or early termination of
the term of your employment under this agreement, you are entitled to no
additional benefits not expressly set forth in this agreement, except as
specifically provided under the benefit plans referred to above and those
benefit plans in which you subsequently may become a participant, and subject
in each case to the terms and conditions of each such plan. Notwithstanding
anything to the contrary set forth above, you shall be 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.
(c) You also shall be eligible to receive paid time off in addition to
your paid vacation days and paid holidays if Employer, in its sole and
absolute discretion, determines that your receipt of such additional paid
time off is appropriate.
8. PROTECTION OF EMPLOYER'S INTERESTS
During the term of your employment by Employer, you will not compete in
any manner, whether directly or indirectly, as a principal, employee, agent
or owner, with Employer, or any affiliate of Employer, except that the
foregoing will not prevent you from holding at any time less than five
percent (5%) of the outstanding capital stock of any company whose stock is
publicly traded. All rights worldwide with respect to any and all
intellectual or other property of any nature produced, created or suggested
by you during the term of your employment or resulting from your services
which (i) relate in any manner at the time of conception or reduction to
practice to the actual or demonstrably anticipated business of Employer,
(ii) result from or are suggested by any task assigned to you or any work
performed by you on behalf of Employer, or (iii) are based on any property
owned or idea conceived by Employer, shall be deemed to be a work made for
hire and shall be the sole and exclusive property of Employer. You agree to
execute, acknowledge and deliver to Employer, at Employer's request, such
further documents, including copyright and patent assignments, as Employer
finds appropriate to evidence Employer's rights in such property. Any
confidential and/or proprietary information of Employer or any affiliate of
Employer shall not be used by you or
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disclosed or made available by you to any person except as required in the
course of your employment, and upon expiration or earlier termination of the
term of your employment, you shall return to Employer all such information
which exists in written or other physical form (and all copies thereof) under
your control. Without limiting the generality of the foregoing, you
acknowledge signing and delivering to Employer the Activision Employee
Proprietary Information Agreement and you agree that all terms and conditions
contained in such agreement, and all of your obligations and commitments
provided for in such agreement, shall be deemed, and hereby are, incorporated
into this agreement as if set forth in full herein. The provisions of the
immediately preceding four sentences of this paragraph shall survive the
expiration or earlier termination of this agreement.
9. SERVICES UNIQUE
You recognize that the services being performed by you under this
agreement are of a special, unique, unusual, extraordinary and intellectual
character giving them a peculiar value, the loss of which cannot be
reasonably or adequately compensated for in damages, and in the event of a
breach of this agreement by you (particularly, but without limitation, with
respect to the provisions hereof relating to the exclusivity of your services
and the provisions of paragraph 8 of this agreement), Employer shall, in
addition to all other remedies available to it, be entitled to equitable
relief by way of injunction and any other legal or equitable remedies.
10. TERMINATION
(a) At any time during the term of your employment, Employer may
terminate your employment under this agreement for (i) your willful, reckless
or gross misconduct, (ii) your material breach of 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 any
relocation of the place at which you primarily are performing your services
to Employer to a location which is outside the metropolitan Los Angeles area,
(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) in the event Employer
commences the production or distribution of an entertainment software or
other product which is pornographic.
(c) In the event of the termination of your employment under this
agreement pursuant to Paragraphs 10(a) or 10(b), all obligations of Employer
to you under this agreement shall immediately terminate.
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(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.
11. USE OF EMPLOYEE'S NAME
Employer shall have the right, but not the obligation, to use your name
or likeness for any publicity or advertising purpose.
12. ASSIGNMENT
Employer may assign this agreement or all or any part of its rights
under this agreement to any entity which succeeds to all or substantially all
of Employer's assets (whether by merger, acquisition, consolidation,
reorganization or otherwise) or which Employer may own substantially, and
this agreement shall inure to the benefit of such assignee.
13. NO CONFLICT WITH PRIOR AGREEMENTS
You represent to Employer that neither your commencement of employment
under this agreement nor the performance of your duties under this agreement
conflicts or will conflict with any contractual commitment on your part to
any third party, nor does it or will it violate or interfere with any rights
of any third party.
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14. POST-TERMINATION OBLIGATIONS
After the expiration or earlier termination of your employment under
this agreement for any reason whatsoever, you shall not, either alone or
jointly, with or on behalf of others, directly or indirectly, whether as
principal, partner, agent, shareholder, director, employee, 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.
15. ENTIRE AGREEMENT; AMENDMENTS; WAIVER, ETC.
(a) This agreement supersedes all prior or contemporaneous agreements
and statements, whether written or oral, concerning the terms of your
employment with Employer, and no amendment or modification of this agreement
shall be binding against Employer unless set forth in a writing signed by
Employer and delivered to you.
(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
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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).
16. NOTICES
All notices which either party is required or may desire to give the
other shall be in writing and given either personally or by depositing the
same in the United States mail addressed to the party to be given notice as
follows:
To Employer: 3100 Ocean Park Boulevard
Santa Monica, California 90405
Attention: President and
Chief Operating Officer
To Employee: 1156 Via de la Paz
Pacific Palisades, California 90272
Either party may by written notice designate a different address for
giving of notices. The date of mailing of any such notices shall be deemed
to be the date on which such notice is given.
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17. HEADINGS
The headings set forth herein are included solely for the purpose of
identification and shall not be used for the purpose of construing the
meaning of the provisions of this agreement.
If the foregoing accurately reflects our mutual agreement, please sign
where indicated.
ACCEPTED AND AGREED TO:
EMPLOYER EMPLOYEE
By: By:
-------------------------------- ------------------------------------
Ron Doornink Lawrence Goldberg
President and Chief
Operating Officer
Date: Date:
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