SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 14
to
Schedule TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1)
OR 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
Take-Two Interactive Software, Inc.
(Name of Subject Company—(Issuer))
EA08 Acquisition Corp.
Electronic Arts Inc.
(Names of Filing Persons—(Offeror))
Common Stock, Par Value $.01 Per Share
(Title of Class of Securities)
874054109
(CUSIP Number of Class of Securities)
Stephen G. Bené
Senior Vice President, General Counsel and Secretary
Electronic Arts Inc.
209 Redwood Shores Parkway
Redwood City, California 94065
Telephone: (650) 628-1500
(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons)
Copy to:
Richard Capelouto, Esq.
Simpson Thacher & Bartlett LLP
2550 Hanover Street
Palo Alto, California 94304
Telephone: (650) 251-5000
CALCULATION OF FILING FEE
| Transaction Valuation* |
Amount of Filing Fee** | |
| $2,152,261,826 |
$84,583.89 |
| * | Calculated solely for purposes of determining the filing fee. Calculated by multiplying $25.74, the per share tender offer price, by 84,240,550, which represents (i) 76,826,485 outstanding shares of common stock as of March 21, 2008 (according to the Subject Company’s Solicitation/Recommendation Statement on Schedule 14D-9 relating to the Offer), minus (ii) 10 shares of common stock beneficially owned by the filing persons as of the date hereof, plus (iii) 1,500,000 shares of restricted stock of the Subject Company issued to ZelnickMedia Corporation on February 14, 2008 pursuant to its management agreement with Subject Company and plus (iv) 5,914,075 shares of common stock subject to outstanding options as of October 31, 2007 (3,905,000 shares according to the Subject Company’s Annual Report on Form 10—K for the period ended October 31, 2007 plus 2,009,075 shares subject to options granted by the Subject Company to ZelnickMedia Corporation). |
| ** | Calculated as 0.00393% of the transaction value. The amount of filing fee was calculated in accordance with Section 14(g)(3) of and Rule 0-11(d) under the Securities Exchange Act of 1934, as amended. |
| x | Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
| Amount Previously Paid: |
$84,583.89 | Filing Parties: | EA08 Acquisition Corp. Electronic Arts Inc. | |||
| Form or Registration No.: |
SC TO | Date Filed: | March 13, 2008 |
| ¨ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
| x | third-party tender offer subject to Rule 14d-1. |
| ¨ | issuer tender offer subject to Rule 13e-4. |
| ¨ | going-private transaction subject to Rule 13e-3. |
| ¨ | amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer. ¨
This Amendment No. 14 to Schedule TO amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on March 13, 2008, as amended (the “Schedule TO”), by Electronic Arts Inc. (“Parent”) and EA08 Acquisition Corp., a wholly-owned subsidiary of Parent (“Purchaser”), relating to the offer by Purchaser to purchase all of the issued and outstanding shares of common stock, par value $.01 per share, and the associated preferred stock purchase rights (together, the “Shares”), of Take-Two Interactive Software, Inc. (“Take-Two” or the “Company”) at a purchase price of $25.74 net per share in cash (subject to applicable withholding taxes), without interest, upon the terms and subject to the conditions set forth in the Amended and Restated Offer to Purchase dated April 18, 2008 (the “Amended and Restated Offer to Purchase”) and in the related Amended and Restated Letter of Transmittal, as each may be amended or supplemented from time to time.
Except as specifically set forth herein, this Amendment No. 14 does not modify any of the information previously reported on the Schedule TO. All capitalized terms used in this Amendment No. 14 and not otherwise defined have the respective meanings ascribed to them in the Amended and Restated Offer to Purchase.
As permitted by General Instruction F to the Schedule TO, the information set forth in the Schedule TO, as amended by this Amendment No. 14, including the Amended and Restated Offer to Purchase and the related Amended and Restated Letter of Transmittal and all other appendices, schedules, exhibits and annexes hereto and thereto, is hereby expressly incorporated by reference herein in response to Items 1 through 12 of the Schedule TO. You should read this Amendment No. 14 to the Schedule TO together with the Schedule TO.
Items 5 and 11.
On August 18, 2008, Parent issued a press release regarding the status of the Offer and certain communications between Parent, the Company and their respective advisors. The full text of such press release is filed as Exhibit (a)(5)(Q) hereto and is incorporated herein by reference.
| Item 12. | Exhibits. |
Item 12 of the Schedule TO is hereby amended and restated as follows:
| (a)(1)(A) |
Offer to Purchase dated March 13, 2008. * | |
| (a)(1)(B) |
Letter of Transmittal. * | |
| (a)(1)(C) |
Notice of Guaranteed Delivery. * | |
| (a)(1)(D) |
Letter from Purchaser to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. * | |
| (a)(1)(E) |
Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. * | |
| (a)(1)(F) |
Guidelines for Certification of Taxpayer Identification Number on Substitute W-9. * | |
| (a)(1)(G) |
Summary Advertisement as published on March 13, 2008. * | |
| (a)(1)(H) |
Amended and Restated Offer to Purchase dated April 18, 2008. * | |
| (a)(1)(I) |
Amended and Restated Letter of Transmittal. * | |
| (a)(1)(J) |
Amended and Restated Notice of Guaranteed Delivery. * | |
| (a)(1)(K) |
Amended and Restated Letter from Purchaser to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. * | |
| (a)(1)(L) |
Amended and Restated Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. * | |
| (a)(5)(A) |
Press Release issued by Electronic Arts Inc., dated March 13, 2008. * | |
| (a)(5)(B) |
Electronic Arts Press Release, dated February 24, 2008 posted at www.eatake2.com (incorporated by reference to Exhibit 99.1 of Electronic Arts Inc.’s current report on Form 8-K filed on February 25, 2008). |
| (a)(5)(C) |
Open Letter to the Public, dated February 24, 2008 posted at www.eatake2.com (incorporated by reference to Exhibit 99.2 of Electronic Arts Inc.’s current report on Form 8-K filed on February 25, 2008). | |
| (a)(5)(D) |
Electronic Arts Frequently Asked Questions, dated as of February 24, 2008 posted at www.eatake2.com (incorporated by reference to Exhibit 99.3 of Electronic Arts Inc.’s current report on Form 8-K filed on February 25, 2008). | |
| (a)(5)(E) |
Transcript of February 25, 2008 Electronic Arts Conference Call posted at www.eatake2.com (incorporated by reference to Exhibit 99.1 of Electronic Arts Inc.’s current report on Form 8-K filed on February 25, 2008). | |
| (a)(5)(F) |
February 25, 2008 Conference Call Prepared Remarks posted at www.eatake2.com (incorporated by reference to Exhibit 99.2 of Electronic Arts Inc.’s current report on Form 8-K filed on February 25, 2008). | |
| (a)(5)(G) |
Transcript of Warren C. Jenson remarks at the March 3, 2008 Morgan Stanley Technology Conference (incorporated by reference to Exhibit 99.1 of Electronic Arts Inc.’s current report on Form 8-K filed on March 4, 2008). | |
| (a)(5)(H) |
Electronic Arts Inc. e-mail response to inquiries from the press regarding the response of Take-Two Interactive Software, Inc. to the tender offer set forth in Take-Two’s Solicitation/Recommendation Statement on Schedule 14D-9 filed with the SEC on March 26, 2008. * | |
| (a)(5)(I) |
Press Release issued by Electronic Arts Inc., dated March 28, 2008. * | |
| (a)(5)(J) |
Press Release issued by Electronic Arts Inc., dated April 17, 2008. * | |
| (a)(5)(K) |
Press Release issued by Electronic Arts Inc., dated April 18, 2008. * | |
| (a)(5)(L) |
Transcript of question and response related to the Offer addressed during Electronic Arts’ fourth quarter fiscal year 2008 earnings conference call held on May 13, 2008. * | |
| (a)(5)(M) |
Press Release issued by Electronic Arts Inc., dated May 19, 2008. * | |
| (a)(5)(N) |
Press Release issued by Electronic Arts Inc., dated June 17, 2008. * | |
| (a)(5)(O) |
Transcript of questions and responses related to the Offer addressed during the breakout session at William Blair & Company’s 28th Annual Growth Stock Conference on June 17, 2008. * | |
| (a)(5)(P) |
Press Release issued by Electronic Arts Inc., dated July 21, 2008. * | |
| (a)(5)(Q) |
Press Release issued by Electronic Arts Inc., dated August 18, 2008. | |
| (b)(1) |
Commitment Letter for up to $1 billion loan facility, dated May 9, 2008, between Electronic Arts, Morgan Stanley Senior Funding, Inc., Morgan Stanley Bank and the other lenders named therein. * | |
| (c) |
Not applicable. | |
| (d) |
Not applicable. | |
| (g) |
Not applicable. | |
| (h) |
Not applicable. | |
| * | Previously filed |
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: August 18, 2008.
| ELECTRONIC ARTS INC. | ||
| By: | /s/ STEPHEN G. BENÉ | |
| Name: | Stephen G. Bené | |
| Title: | Senior Vice President, General Counsel, and Secretary | |
| EA08 ACQUISITION CORP. | ||
| By: | /s/ STEPHEN G. BENÉ | |
| Name: | Stephen G. Bené | |
| Title: | Vice President and Secretary | |
EXHIBIT INDEX
| Exhibit No. |
Description | |
| (a)(1)(A) | Offer to Purchase dated March 13, 2008. * | |
| (a)(1)(B) | Letter of Transmittal. * | |
| (a)(1)(C) | Notice of Guaranteed Delivery. * | |
| (a)(1)(D) | Letter from Purchaser to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. * | |
| (a)(1)(E) | Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. * | |
| (a)(1)(F) | Guidelines for Certification of Taxpayer Identification Number on Substitute W-9. * | |
| (a)(1)(G) | Summary Advertisement as published on March 13, 2008. * | |
| (a)(1)(H) | Amended and Restated Offer to Purchase dated April 18, 2008. * | |
| (a)(1)(I) | Amended and Restated Letter of Transmittal. * | |
| (a)(1)(J) | Amended and Restated Notice of Guaranteed Delivery. * | |
| (a)(1)(K) | Amended and Restated Letter from Purchaser to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. * | |
| (a)(1)(L) | Amended and Restated Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. * | |
| (a)(5)(A) | Press Release issued by Electronic Arts Inc., dated March 13, 2008. * | |
| (a)(5)(B) | Electronic Arts Press Release, dated February 24, 2008 posted at www.eatake2.com (incorporated by reference to Exhibit 99.1 of Electronic Arts Inc.’s current report on Form 8-K filed on February 25, 2008). | |
| (a)(5)(C) | Open Letter to the Public, dated February 24, 2008 posted at www.eatake2.com (incorporated by reference to Exhibit 99.2 of Electronic Arts Inc.’s current report on Form 8-K filed on February 25, 2008). | |
| (a)(5)(D) | Electronic Arts Frequently Asked Questions, dated as of February 24, 2008 posted at www.eatake2.com (incorporated by reference to Exhibit 99.3 of Electronic Arts Inc.’s current report on Form 8-K filed on February 25, 2008). | |
| (a)(5)(E) | Transcript of February 25, 2008 Electronic Arts Conference Call posted at www.eatake2.com (incorporated by reference to Exhibit 99.1 of Electronic Arts Inc.’s current report on Form 8-K filed on February 25, 2008). | |
| (a)(5)(F) | February 25, 2008 Conference Call Prepared Remarks posted at www.eatake2.com (incorporated by reference to Exhibit 99.2 of Electronic Arts Inc.’s current report on Form 8-K filed on February 25, 2008). | |
| (a)(5)(G) | Transcript of Warren C. Jenson remarks at the March 3, 2008 Morgan Stanley Technology Conference (incorporated by reference to Exhibit 99.1 of Electronic Arts Inc.’s current report on Form 8-K filed on March 4, 2008). | |
| (a)(5)(H) | Electronic Arts Inc. e-mail response to inquiries from the press regarding the response of Take-Two Interactive Software, Inc. to the tender offer set forth in Take-Two’s Solicitation/Recommendation Statement on Schedule 14D-9 filed with the SEC on March 26, 2008. * | |
| (a)(5)(I) | Press Release issued by Electronic Arts Inc., dated March 28, 2008. * | |
| (a)(5)(J) | Press Release issued by Electronic Arts Inc., dated April 17, 2008. * | |
| (a)(5)(K) | Press Release issued by Electronic Arts Inc., dated April 18, 2008. * | |
| (a)(5)(L) | Transcript of question and response related to the Offer addressed during Electronic Arts’ fourth quarter fiscal year 2008 earnings conference call held on May 13, 2008. * | |
| (a)(5)(M) | Press Release issued by Electronic Arts Inc., dated May 19, 2008. * | |
| (a)(5)(N) | Press Release issued by Electronic Arts Inc., dated June 17, 2008. * | |
| (a)(5)(O) | Transcript of questions and responses related to the Offer addressed during the breakout session at William Blair & Company’s 28th Annual Growth Stock Conference on June 17, 2008. * | |
| (a)(5)(P) | Press Release issued by Electronic Arts Inc., dated July 21, 2008.* | |
| Exhibit No. |
Description | |
| (a)(5)(Q) | Press Release issued by Electronic Arts Inc., dated August 18, 2008. | |
| (b)(1) | Commitment Letter for up to $1 billion loan facility, dated May 9, 2008, between Electronic Arts, Morgan Stanley Senior Funding, Inc., Morgan Stanley Bank and the other lenders named therein. * | |
| (c) | Not applicable. | |
| (d) | Not applicable. | |
| (g) | Not applicable. | |
| (h) | Not applicable. | |
| * | Previously filed |
Exhibit (a)(5)(Q)
ELECTRONIC ARTS ISSUES UPDATE ON OFFER FOR TAKE-TWO
EA Negotiating NDA to Obtain Limited Due Diligence
Tender Offer to Expire Monday, August 18, 2008, on its Terms
Redwood City, CA – August 18, 2008 – Electronic Arts Inc. (“EA”) (NASDAQ:ERTS) today issued an update on its offer to acquire Take-Two Interactive Software Inc. (“Take-Two”) (NASDAQ:TTWO).
On Friday August 15, John Riccitiello, Chief Executive Officer of EA, called Strauss Zelnick, Executive Chairman of the Board of Directors of Take-Two, to discuss EA’s offer to acquire Take-Two. Following discussions over the weekend between EA and Take-Two, EA accepted Take-Two’s offer to provide a management presentation to EA containing non-public information. The letters between the parties are set forth below.
EA also announced that it will allow its tender offer for all of the currently outstanding shares of common stock (including the associated preferred stock purchase rights) of Take-Two to expire on Monday, August 18, 2008 at 11:59 p.m., New York City time.
As previously reported, the Federal Trade Commission is scheduled to complete its antitrust review of the proposed transaction by August 21. EA remains confident that antitrust issues will not prevent or delay a transaction.
Below is the text of the letter sent today by Mr. Riccitiello to Mr. Zelnick:
August 18, 2008
Mr. Strauss Zelnick
Executive Chairman of the Board of Directors
Take-Two Interactive Software, Inc.
622 Broadway
New York, NY 10012
Dear Strauss:
Thank you for taking my call on Friday and for your response letter on August 17, 2008.
As discussed on Friday, given the passage of time, we have to validate the assumptions used in the model to support our offer price of $25.74 per share in cash. In addition, we no longer believe we can integrate Take-Two ahead of the important holiday season. Accordingly, we require due diligence to support a transaction and are therefore letting the tender offer expire tonight. However, we are pleased to accept your offer to review your management presentation as outlined in your letter.
We continue to have great respect for Take-Two’s creative teams and products and are hopeful that we can work together to reach a mutually agreed transaction.
Sincerely,
| /s/ John Riccitiello |
||
| John Riccitiello | ||
| Chief Executive Officer |
Below is the text of the letter sent yesterday by Mr. Zelnick to Mr. Riccitiello:
August 17, 2008
Mr. John S. Riccitiello
Chief Executive Officer
Electronic Arts Inc.
209 Redwood Shores Parkway
Redwood City, CA 94065
Dear John:
Thank you for your recent expression of interest for Electronic Arts Inc. (“EA”) to participate in Take-Two Interactive Software, Inc.’s (the “Company”) formal process to evaluate the Company’s strategic alternatives. As you know, we have been willing to have EA participate in this process following the successful launch of GTA IV, and we are happy to include EA now.
As I mentioned when we spoke on Friday, our process begins with an in-depth management presentation. The Company has made significant strides since EA first expressed interest in the Company and this presentation includes material non-public information to which you would not otherwise have access, including information relating to our three year product release schedule and management’s financial projections. The presentation also includes information about the underlying factors that have driven our strong operational and financial performance. I believe our presentation will enable you to understand better the value of our Company to EA.
Prior to the management presentation, we will only require EA to enter into a confidentiality agreement. The agreement would be limited to provisions required to comply with federal securities laws and to ensure the Company’s ability to protect the confidentiality of the information shared with you. I can assure you that this requirement is the same as or more favorable to EA than that which we have employed with all other participants in the process.
We understand that a number of months have passed since you first expressed interest in the Company and, accordingly, we will act quickly to assist you in moving through our process. Once we execute a confidentiality agreement, we are prepared to schedule the management presentation immediately.
With my best personal regards.
| Sincerely, | ||
| /s/ Strauss Zelnick |
||
| Strauss Zelnick | ||
| Executive Chairman of the Board | ||
EA’s tender offer for all of the currently outstanding shares of common stock (including the associated preferred stock purchase rights) of Take-Two Interactive Software Inc. (“Take-Two”) (NASDAQ:TTWO) will expire at 11:59 p.m., New York City time, on August 18, 2008.
Morgan Stanley & Co. Incorporated is acting as the Dealer Manager for the tender offer, Simpson Thacher & Bartlett LLP and Latham & Watkins are acting as legal counsel, and Georgeson Inc. is acting as Information Agent for the tender offer.
About Electronic Arts
Electronic Arts Inc. (EA), headquartered in Redwood City, California, is the world’s leading interactive entertainment software company.
Founded in 1982, the Company develops, publishes, and distributes interactive software worldwide for video game systems, personal computers, cellular handsets and the Internet. Electronic Arts markets its products under four brand names: EA SPORTS(TM), EA(TM), EA SPORTS Freestyle(TM) and POGO(TM). In fiscal 2008, EA posted GAAP net revenue of $3.67 billion and had 27 titles that sold more than one million copies. EA's homepage and online game site is www.ea.com. More information about EA’s products and full text of press releases can be found on the Internet at http://info.ea.com.
Additional Information and Where to Find It
This press release is neither an offer to purchase nor a solicitation of an offer to sell securities of Take-Two. The offer to purchase or solicitation of offers to sell is being made pursuant to a Tender Offer Statement on Schedule TO (including the Offer to Purchase, Letter of Transmittal and other related offer documents) filed by EA and EA08 Acquisition Corp. with the Securities and Exchange Commission, or SEC, on March 13, 2008. Before making any decision with respect to the offer, Take-Two stockholders are advised to read these documents, as they may be amended or supplemented from time to time, and any other documents relating to the tender offer that are filed with the SEC carefully and in their entirety because they contain important information, including the terms and conditions of the offer. These documents may be obtained at no charge by directing a request by mail to Georgeson, Inc., 199 Water Street, 26th Floor, New York, NY 10038, or by calling toll-free at (800) 213-0473, and may also be obtained at no charge at the website maintained by the SEC at http://www.sec.gov.
Forward Looking Statements
Some statements set forth in this communication, including those regarding EA’s offer to acquire Take-Two and the expected impact of the acquisition on EA’s strategic and operational plans and financial results, contain forward-looking statements that are subject to change. Statements including words such as “anticipate”, “believe”, “estimate” or “expect” and statements in the future tense are forward-looking statements. These forward-looking statements are subject to risks and uncertainties that could cause actual events or actual future results to differ materially from the expectations set forth in the forward-looking statements. Some of the factors which could cause results to differ materially from the expectations expressed in these forward-looking statements include the following: the possibility that EA’s offer to acquire Take-Two will not be consummated; the possibility that, even if EA’s offer is consummated, the transaction will not close or that the closing may be delayed; the effect of the announcement of the offer on EA’s and Take-Two’s strategic relationships, operating results and business generally, including the ability to retain key employees; EA’s ability to successfully integrate Take-Two’s operations and employees; general economic conditions; and other factors described in EA’s SEC filings (including EA’s Annual Report on Form 10-K for the year ended March 31, 2008). If any of these risks or uncertainties materializes, the offer may not be consummated, the acquisition may not be consummated, the potential benefits of the acquisition may not be realized, EA’s and/or Take-Two’s operating results and financial performance could suffer, and actual results could differ materially from the expectations described in these forward-looking statements.
All information in this communication is as of the initial date on which this communication was released. EA undertakes no duty to publicly update any forward-looking statement, whether as a result of new information, future developments or otherwise.
Contacts:
Jeff Brown
VP Communications
650-628-7922
Tricia Gugler
Senior Director of IR
650-628-732
Joele Frank / Eric Brielmann
Joele Frank, Wilkinson Brimmer Katcher
212-355-4449
Georgeson Inc.
David Drake
212-440-9861
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