Exhibit 10.17
STOCK
OPTION AGREEMENT
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Stock Option #
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For
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Shares
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Issued Pursuant to the
Amended and Restated 2003 Incentive Plan of
ACTIVISION, INC.
THIS STOCK OPTION
AGREEMENT (THIS “AGREEMENT”) CERTIFIES that on (the “Issuance Date”) (the
“Holder”) was granted a non-qualified option (the “Option”) to purchase at the
option price of $ per
share, all or any part of fully
paid and non-assessable shares (“Shares”) of common stock, par value $.000001
per share, of ACTIVISION, INC., a Delaware corporation (the “Company”), upon
and subject to the following terms and conditions:
1. Terms of the Plan.
The Option is granted pursuant to, and is subject to the
terms and conditions of, the Company’s Amended and Restated 2003 Incentive Plan
(the “Plan”), the terms, conditions and definitions of which are hereby
incorporated herein as though set forth at length, and the receipt of a copy of
which the Holder hereby acknowledges by his signature below. Capitalized terms used herein shall have the
meanings set forth in the Plan, unless otherwise defined herein. The option granted hereby is not intended to
be an “incentive stock option” as such term is defined in Section 422 of the
Code.
2. Expiration. This
Option shall expire on ,
unless extended or earlier terminated in accordance herewith.
3. Exercise. Except
as otherwise permitted under the Plan, this Option may be exercised or
surrendered during the Holder’s lifetime only by the Holder or his/her guardian
or legal representative. EXCEPT AS
OTHERWISE PERMITTED UNDER THE PLAN, THIS OPTION SHALL NOT BE TRANSFERABLE BY
THE HOLDER OTHERWISE THAN BY WILL OR BY THE LAWS OF DESCENT AND DISTRIBUTION.
4. This
Option shall vest and be exercisable as follows:
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Vesting Date
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Shares Vested at Vesting Date
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Cumulative Shares
Vested at Vesting Date
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This Option shall be
exercised by the Holder (or by her executors, administrators, guardian or legal
representative) as to all or part of the Shares, by the giving of written
notice of exercise to the Company, specifying the number of Shares to be
purchased, accompanied by payment of the full purchase price for the Shares
being purchased. Full payment of such
purchase price shall be made at the time of exercise and shall be made (i) in
cash or by certified check or bank check or wire transfer of immediately
available funds, (ii) with the consent of the Company, by tendering previously
acquired Shares (valued at their then Fair Market Value (as defined in the
Plan), as determined by the Company as
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of the date of tender)
that have been owned for a period of at least six months (or such other period
to avoid accounting charges against the Company’s earnings), or (iii) with the
consent of the Company, a combination of (i) and (ii). Such notice of exercise, accompanied by such
payment, shall be delivered to the Company at its principal business office or
such other office as the Company may from time to time direct, and shall be in
such form, containing such further provisions as the Company may from time to
time prescribe. In no event may this
Option be exercised for a fraction of a Share.
The Company shall effect the transfer of Shares purchased pursuant to an
Option as soon as practicable, and, within a reasonable time thereafter, such
transfer shall be evidenced on the books of the Company. No person exercising this Option shall have
any of the rights of a holder of Shares subject to this Option until
certificates for such Shares shall have been issued following the exercise of
such Option. No adjustment shall be made
for cash dividends or other rights for which the record date is prior to the
date of such issuance.
5. Termination of Service. Upon termination of the Holder’s service
as a Director or other position with the Board of Directors for any reason
(except death or disability which are described in paragraphs 6 and 7 below),
the following terms shall apply to this Option:
(a) In
the event of termination of the Holder’s service as a Director or other
position with the Board of Directors, this Option, whether or not vested, shall
expire immediately and shall be deemed cancelled and no longer continue to vest
or be exercisable as of the date of such termination. The term “Cause” shall be defined as the
Holder’s (i) willful, reckless or gross misconduct or fraud, (ii) gross
negligent performance of job responsibilities, and (iii) conviction of or
pleading no contest to a felony or crime involving dishonesty or moral
turpitude;
(b) In
the event of termination of the Holder’s service as a Director or other
position with the Board of Directors by the Company without Cause, this Option
shall cease to vest immediately as of the date of such termination, the
unvested portion of this Option shall be cancelled and only the vested portion
of this Option shall continue to be exercisable until the earlier of (i) the
end of the 30th day after the date of such termination of service,
or (ii) the expiration of this Option pursuant to the terms set forth herein;
and upon the expiration of such period, such portion of this Option then
remaining unexercised shall be cancelled; and
(c) In
the event of termination of the Holder’s service as a Director or other position
with the Board of Directors for any reason not otherwise described in
paragraphs 5(a) and (b) (except for death or disability), this Option shall
cease to vest immediately as of the date of such termination, the unvested
portion of this Option shall be cancelled and only the vested portion of this
Option shall continue to be exercisable until the earlier of (i) the end of the
30th day after the date of such termination of service,
or (ii) the expiration of this Option pursuant to the terms set forth herein;
and upon the expiration of such period, such portion of this Option then
remaining unexercised shall be cancelled.
6. Death. In
the event the Holder dies during his term as a Director or other position with
the Board of Directors of the Company or any of its subsidiaries or affiliates,
as the case may be, this Option, to the extent not previously expired or
exercised, shall, to the extent exercisable on the date of death, be
exercisable by the estate of the Holder or by any person who acquired this Option
by bequest or inheritance, at any time within one year after the death of the
Holder, provided, however, that
if the term of such Option would expire by its terms within six months after
the Optionee’s death, the term of such Option shall be extended until six
months after the Optionee’s death.
7. Disability. In
the event of the separation from service as a Director or other position with
the Board of Directors of the Company of the Holder due to total disability,
the Holder, or her guardian or
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legal representative,
shall have the unqualified right to exercise any portion of this Option which
has not been previously exercised or expired and which the Holder was eligible
to exercise as of the first date of total disability (as determined by the
Company), at any time within one year after such termination or separation, provided, however, that if the term of
such Option would expire by its terms within six months after such termination
or separation, the term of such Option shall be extended until six months after
such termination or separation. The term
“total disability” shall, for purposes of this Share Option Agreement, be
defined in the same manner as such term is defined in Section 22(e)(3) of the
Internal Revenue Code of 1986, as amended.
8. Adjustments. In
the event that the Company shall determine that any dividend or other
distribution (whether in the form of cash, shares of common stock of the
Company, other securities, or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase, or exchange of shares of common stock of the Company
or other securities, the issuance of warrants or other rights to purchase
shares of common stock of the Company, or other securities, or other similar
corporate transaction or event affects the Shares, such that an adjustment is
determined by the Company to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
to the Holder, then the Company shall, in such manner as the Company may deem
equitable, adjust any or all of (i) the number and type of shares of common
stock of the Company subject to this Option, and (ii) the grant or exercise
price with respect to this Option, or, if deemed appropriate, make provision
for a cash payment to the Holder.
9. Delivery of Share Certificates. Within a reasonable time after the
exercise of this Option, the Company shall cause to be delivered to the person
entitled thereto a certificate for the Shares purchased pursuant to the
exercise of this Option. If this Option
shall have been exercised with respect to less than all of the Shares subject
to this Option, the Company shall also cause to be delivered to the person entitled
thereto a new Stock Option Agreement in replacement of this Stock Option
Agreement if surrendered at the time of the exercise of this Option, indicating
the number of Shares with respect to which this Option remains available for
exercise, or the Company shall make a notation in its books and records to
reflect the partial exercise of this Option.
10. Withholding. In
the event that the Holder elects to exercise this Option or any part thereof,
and if the Company or any subsidiary or affiliate of the Company shall be
required to withhold any amounts by reasons of any federal, state or local tax
laws, rules or regulations in respect of (a) the issuance of Shares to the
Holder pursuant to this Option, or (b) the exercise or disposition (in whole or
in part) of the Option, the Company or such subsidiary or affiliate shall be
entitled to deduct and withhold such amounts from any payments to be made to
the Holder. In any event, the Holder
shall make available to the Company or such subsidiary or affiliate, promptly
when requested by the Company or such subsidiary or affiliate, sufficient funds
to meet the requirements of such withholding; and the Company or such
subsidiary or affiliate shall be entitled to take and authorize such steps as
it may deem advisable in order to have such funds available to the Company or
such subsidiary or affiliate out of any funds or property due or to become due
to the Holder.
11. Reservation of Shares. The Company hereby agrees that at
all times there shall be reserved for issuance and/or delivery upon exercise of
this Option such number of Shares as shall be required for issuance or delivery
upon exercise hereof.
12. Rights of Holder.
Nothing contained herein shall be construed to confer upon
the Holder any right to continue service with the Company and/or any subsidiary
or affiliate of the Company or derogate from any right of the Company and/or
any subsidiary or affiliate of the Company to retire, request the resignation
of, or discharge the Holder at any time, with or without cause. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at law or in
equity,
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and the rights of the
Holder are limited to those expressed herein and are not enforceable against
the Company except to the extent set forth herein.
13. Exclusion from Pension Computations. By acceptance of the grant of this
Option, the Holder hereby agrees that any income realized upon the receipt or
exercise hereof, or upon the disposition of the Shares received upon its
exercise, is special incentive compensations and, to the extent permissible
under applicable law, shall not be taken into account as “wages”, “salary” or “compensation”
in determining the amount of any payment under any pension, retirement,
incentive, profit sharing, bonus or deferred compensation plan of the Company
or any of its subsidiaries or affiliates.
14. Registration; Legend.
The Company may postpone the issuance and delivery of Shares
upon any exercise of this Option until (a) the admission of such Shares to
listing on any stock exchange or exchanges on which Shares of the Company of
the same class are then listed and (b) the completion of such registration or
other qualification of such Shares under any state or federal law, rule or
regulation as the Company shall determine to be necessary or advisable. The Holder shall make such representations
and furnish such information as may, in the opinion of counsel for the Company,
be appropriate to permit the Company, in light of the then existence or
non-existence with respect to such Shares of an effective Registration
Statement under the Securities Act of 1933, as amended, to issue the Shares in
compliance with the provisions of that or any comparable act.
The Company may cause the
following or a similar legend to be set forth on each certificate representing
Shares or any other security issued or issuable upon exercise of this Option
unless counsel for the Company is of the opinion as to any such certificate
that such legend is unnecessary:
THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS ESTABLISHED BY AN
OPINION FROM COUNSEL TO THE COMPANY.
15. Amendment. The
Company may, with the consent of the Holder, at any time or from time to time
amend the terms and conditions of this Option, and may at any time or from time
to time amend the terms of the Plan.
16. Notices. Any
notice which either party hereto may be required or permitted to give to the
other shall be in writing, and may be delivered personally or by mail, postage
prepaid, or overnight courier, addressed as follows: if to the Company, at its
office at 3100 Ocean Park Boulevard, Santa Monica, California 90405, Attn:
General Counsel, or at such other address as the Company by notice to the
Holder may designate in writing from time to time; and if to the Holder, at the
address shown below her signature on this Stock Option Agreement, or at such
other address as the Holder by notice to the Company may designate in writing
from time to time. Notices shall be
effective upon receipt.
17. Interpretation.
A determination of the Committee as to any questions which
may arise with respect to the interpretation of the provisions of this Option
and of the Plan shall be final and binding.
The Committee may authorize and establish such rules, regulations and
revisions thereof as it may deem advisable.
[Remainder of page intentionally
blank.]
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IN WITNESS WHEREOF, the
parties have executed this Stock Option Agreement as of the date first set
forth above.
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ACTIVISION, INC.
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By:
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Name:
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Title:
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Date:
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Attest:
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ACCEPTED:
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Option Holder
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Address
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City
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State
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ZipCode
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Social Security Number
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