As filed with the Securities and Exchange Commission on September 14, 2004.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TAKE-TWO INTERACTIVE SOFTWARE, INC.
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(Exact name of registrant as specified in its charter)
Delaware 51-0350842
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(State or other jurisdiction of incorporation (I.R.S. Employer Identification No.)
or organization)
622 Broadway, New York, New York 10012
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(Address of principal executive offices) (Zip Code)
Non-plan Options Granted to An Employee
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(Full title of the plan)
Richard W. Roedel, Chief Executive Officer
Take-Two Interactive Software, Inc.
622 Broadway
New York, New York 10012
(Name and address of agent for service)
(646) 536-2842
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(Telephone number, including area code, of agent for service)
Copy to:
Robert J. Mittman, Esq.
Ethan Seer, Esq.
Blank Rome LLP
405 Lexington Avenue
New York, New York 10174
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM
AGGREGATE PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT OFFERING PRICE AGGREGATE OFFERING AMOUNT OF REGISTRATION
BE REGISTERED TO BE REGISTERED PER SHARE(2) PRICE(2) FEE
- ---------------------- ---------------- ----------------- ------------------- ----------------------
Common Stock, par 300,000 shares $31.92 $9,576,000 $1,213.28
value $.01 per share
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933
(the "Securities Act"), this registration statement also registers an
indeterminate number of shares of common stock which may become issuable
pursuant to the anti-dilution provisions of the options.
(2) Calculated solely for the purpose of determining the registration
fee pursuant to Rule 457 under the Securities Act, based upon the exercise price
of the options.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
Item 2. Registrant Information and Employee Plan Annual Information. *
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
1. Annual Report on Form 10-K for the fiscal year ended October 31,
2003 and all amendments thereto filed on Form 10-K/A.
2. Quarterly Report on Form 10-Q for the quarter ended January 31,
2004.
3. Quarterly Report on Form 10-Q for the quarter ended April 30,
2004.
4. Quarterly Report on Form 10-Q for the quarter ended July 31,
2004.
5. Current Report on Form 8-K for the event dated October 17, 2003.
6. The description of the registrant's common stock contained in its
Registration Statement on Form 8-A together with any amendment or report filed
with the Securities and Exchange Commission for the purpose of updating this
description.
7. All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the respective date of
filing of such documents. Any statement contained in a document incorporated by
reference herein is modified or superseded for all purposes to the extent that a
statement contained in this Registration Statement or in any other subsequently
filed document which is incorporated by reference modifies or replaces such
statement.
Any reference herein shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed documents which also is incorporated
or deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable
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Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
("GCL") provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
Section 102(b) of the GCL permits a corporation, by so providing in its
certificate of incorporation, to eliminate or limit director's liability to the
corporation and its shareholders for monetary damages arising out of certain
alleged breaches of their fiduciary duty. Section 102(b)(7) of the GCL provides
that no such limitation of liability may affect a director's liability with
respect to any of the following: (i) breaches of the director's duty of loyalty
to the corporation or its shareholders; (ii) acts or omissions not made in good
faith or which involve intentional misconduct of knowing violations of law;
(iii) liability for dividends paid or stock repurchased or redeemed in violation
of the GCL; or (iv) any transaction from which the director derived an improper
personal benefit. Section 102(b)(7) does not authorize any limitation on the
ability of the corporation or its shareholders to obtain injunction relief,
specific performance or other equitable relief against directors.
The registrant's Certificate of Incorporation provides that it shall
indemnify its officers and directors to the maximum extent permitted from time
to time under the GCL and requires the registrant to advance expenses to any
director or officer to the extent that such indemnification and advancement of
expenses is permitted under such law, as it may, from time to time, be in
effect.
In addition, the registrant's By-laws require the registrant to
indemnify, to the fullest extent permitted by law, any director, officer,
employee or agent for acts which such person reasonably believes are not in
violation of the registrant's corporate purposes as set forth in the
registrant's Certificate of Incorporation. At present, the GCL provides that, in
order to be entitled to indemnification, an individual must have acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the registrant.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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Item 8. Exhibits.
Exhibit No. Description
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5 Opinion of Blank Rome LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Blank Rome LLP (included in Exhibit 5)
24.1 Power of Attorney (included on the Signature Page
of this Registration Statement)
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the Registration Statement any facts or events
arising after the effective date of the prospectus (or the most recent
post-effective amendments thereto) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and prices represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be filed with a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of New York, state of New York, on the 14th day of
September 2004.
TAKE-TWO INTERACTIVE SOFTWARE, INC.
By: /s/ Richard W. Roedel
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Richard W. Roedel
Chief Executive Officer
Each person whose signature appears below authorizes each of Richard W.
Roedel and Karl H. Winters, or either of them acting individually, as his true
and lawful attorney-in-fact, each with full power of substitution, to sign the
Registration Statement on Form S-8 of Take-Two Interactive Software, Inc.,
including any and all pre-effective and post-effective amendments, in the name
and on behalf of each such person, individually and in each capacity stated
below, and to file the same, with exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/s/ Richard W. Roedel Chairman of the Board and Chief Executive September 14, 2004
- ----------------------- Officer (Principal Executive Officer)
Richard W. Roedel
/s/ Paul Eibeler Director September 14, 2004
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Paul Eibeler
/s/ Karl H. Winters Chief Financial and Accounting Officer September 14, 2004
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Karl H. Winters
/s/ Robert Flug Director September 14, 2004
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Robert Flug
/s/ Steven Tisch Director September 14, 2004
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Steven Tisch
Director _________ __, 2004
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Oliver R. Grace, Jr.
/s/ Todd Emmel Director September 14, 2004
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Todd Emmel
/s/ Mark Lewis Director September 14, 2004
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Mark Lewis
/s/ Barbara A. Kaczynski Director September 14, 2004
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Barbara A. Kaczynski
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Exhibit Index
Exhibit No. Description
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5 Opinion of Blank Rome LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Blank Rome LLP (included in Exhibit 5)
24.1 Power of Attorney (included on Signature Page of the
Registration Statement)
EXHIBIT 5
[LETTERHEAD OF BLANK ROME LLP]
September 14, 2004
Take-Two Interactive Software, Inc.
622 Broadway
New York, New York 10012
Gentlemen:
You have requested our opinion with respect to the offering by you,
Take-Two Interactive Software, Inc., a Delaware corporation (the "Company"),
pursuant to a Registration Statement on Form S-8 (the "Registration Statement")
to be filed under the Securities Act of 1933, as amended (the "Act"), of up to
300,000 shares of the Company's common stock (the "Option Shares") issuable upon
exercise of non-plan options granted to an employee of the Company (the
"Options").
We have examined and relied upon originals, or copies certified or
otherwise identified to our satisfaction, of such documents and corporate and
public records as we deemed necessary as a basis for the opinion hereinafter
expressed. With respect to such examination, we have assumed the genuineness of
all signatures appearing on all documents presented to us as originals, and the
conformity to the originals of all documents presented to us as conformed or
reproduced copies. Where factual matters relevant to such opinion were not
independently established, we have relied upon representations of executive
officers of the Company.
Based upon the foregoing, it is our opinion that the Option Shares,
when sold, paid for and issued as contemplated by the terms of the Options, will
be validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement, and to the use of our name as your counsel in connection
with the Registration Statement and in the Prospectus forming a part thereof. In
giving this consent, we do not thereby concede that we come within the
categories of persons whose consent is required by the Act or the General Rules
and Regulations promulgated thereunder.
Very truly yours,
/s/ Blank Rome LLP
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BLANK ROME LLP
EXHIBIT 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 12, 2004 relating to the
financial statements and financial statement schedule, which appears in Take-Two
Interactive Software, Inc.'s Annual Report on Form 10-K for the year ended
October 31, 2003.
/s/ PricewaterhouseCoopers LLP
New York, New York
September 14, 2004