TAKE-TWO
INTERACTIVE SOFTWARE, INC.
622
Broadway
New
York,
NY 10012
April
25,
2007
United
States Securities and Exchange Commission
100
F
Street N.E.
Washington,
D.C. 20549
Attn:
Nicholas P. Panos, Esq.
Special
Counsel
Office
of
Mergers & Acquisitions
Dear
Mr.
Panos:
Our
counsel, Proskauer Rose LLP, is today responding to the Staff’s letter to Take
Two Interactive Software, Inc. (the “Company”) dated April 5, 2007 with respect
to the Company’s Form 8-K filed on April 4, 2007 (the “8-K”) and the referenced
conversations.
The
Company acknowledges that: (i) it is responsible for the adequacy and accuracy
of the disclosure in the 8-K; (ii) Staff comments or changes to disclosures
in
response to Staff comments do not foreclose the Commission from taking any
action with respect to the 8-K; and (iii) the Company may not assert Staff
comments as a defense in any proceeding initiated by the Commission or any
person under federal securities laws of the United States.
|
Very
truly yours,
TAKE-TWO
INTERACTIVE SOFTWARE, INC.
|
||
| |
|
|
| By: | /s/ Seth D. Krauss | |
|
Seth D. Krauss |
||
| Executive Vice President and General Counsel | ||
 |
1585
BROADWAY
NEW
YORK, NY 10036-8299
TELEPHONE
212.969.3000
FAX
212.969.2900
|
LOS
ANGELES
WASHINGTON
BOSTON
BOCA
RATON
NEWARK
NEW
ORLEANS
PARIS
|
|
|
Arnold
S. Jacobs
Member
of the
Firm
Direct
Dial
212.969.3210
ajacobs@proskauer.com
|
April
25,
2007
United
States Securities and Exchange Commission
100
F
Street N.E.
Washington,
D.C. 20549
Attn:
Nicholas P. Panos, Esq.
Special
Counsel
Office
of
Mergers & Acquisitions
Dear
Mr.
Panos:
We
are counsel to Take-Two Interactive
Software, Inc. (the “Company”). Further to your and other Staff members’
discussions with the Company on April 5, 2007, April 11, 2007 and April 13,
2007
and your conversation with Adam J. Kansler, a member of Proskauer Rose LLP,
on
April 24, 2007, I am writing to respond to your letter to the Company dated
April 5, 2007 with respect to the Company’s Form 8-K filed on April 4, 2007 (the
“8-K”) and the referenced conversations.
At
the Company’s Annual Meeting of
Stockholders held on March 29, 2007 at 4:00 pm EDT (the “Annual Meeting”) the
only matters that were proposed and voted upon by the stockholders of the
Company (the “Stockholders”) were the following proposals, which were disclosed
by the Company in its Proxy Statement filed with Securities and Exchange
Commission (the “Commission”) on February 28, 2007 (the “Proxy Statement”): (1)
the election of six directors; (2) an amendment to the Company’s Incentive Stock
Plan; (3) the ratification of the appointment of Ernst & Young LLP as the
Company’s registered public accounting firm; and (4) a stockholder proposal
regarding executive compensation.
At
the Annual Meeting, six directors
were elected by the Stockholders, including five new directors (Strauss Zelnick,
Benjamin Feder, Jon J Moses, Michael Sheresky and Michael Dornemann) nominated
by certain of the Stockholders at the Annual Meeting and one incumbent director
(John Levy) nominated by the Board of Directors of the Company (the “Board”).
These directors were elected pursuant to votes cast by the Stockholders at
the
Annual Meeting, and not by written consent of the Stockholders.
April
25,
2007
Page
2
Following
the conclusion of the Annual
Meeting and after the certification by the Company of the final tally of votes
presented by the Inspector of Elections of the Annual Meeting, the six newly
elected members of the Board convened a meeting of the Board (the “Board
Meeting”). The only persons present at the Board Meeting were (i) the six
newly-elected Board members, (ii) the General Counsel and Secretary of the
Company, (iii) certain employees of ZelnickMedia Corporation (“ZelnickMedia”)
(who were not Stockholders) and (iv) representatives of the law firms of
Proskauer Rose LLP and Potter Anderson & Corroon LLP.
As
disclosed in Item 5.03 of the 8-K, at the Board Meeting, the Board approved
the
adoption of the amended and restated by-laws of the Company, which provided
for,
among other things, a reduction in the maximum size of the Board from nine
to
six. As further disclosed in Item 5.03 of the 8-K, at the Board Meeting the
Board then further amended the newly adopted amended and restated by-laws to
increase the maximum size of the Board from six to seven members. As disclosed
in Item 5.02 of the 8-K, the Board then appointed Grover Brown (an incumbent
director who was not re-elected at the Annual Meeting) as a director of the
Company to fill the vacancy created by the increase in the size of the Board.
The
by-laws and the Restated Certificate of Incorporation of the Company each
expressly provide the Board with the authority to amend the by-laws. Article
VIII, Section 1 of the Company’s by-laws1
provides:
“These
by-laws may be altered, amended or repealed or new by-laws may be adopted by
the
stockholders or by the board of directors, when such power is conferred upon
the
board of directors by the certificate of incorporation at any regular meeting
of
the stockholders or of the board of directors or at any special meeting of
the
stockholders or of the board of directors if notice of such alteration,
amendment, repeal or adoption of new by-laws be contained in the notice of
such
special meeting. If the power to adopt, amend or repeal by-laws is
conferred upon the board of directors by the certificate of incorporation it
shall not divest or limit the power of the stockholders to adopt, amend or
repeal by-laws.”
Article
V
of the Company’s Restated Certificate of Incorporation provides:
“In
furtherance and not in limitation of the powers conferred by the laws of the
State of Delaware, the board of directors is expressly authorized to make,
amend
and repeal the bylaws.”
The
Company submits that the disclosure in the 8-K regarding the Board Meeting
and
the adoption of the amended and restated by-laws of the Company at the Board
Meeting was adequate, appropriate and not confusing to stockholders. The Company
does not believe that the 8-K suggests that any Stockholders were present at
the
Board Meeting. Item 5.02 of the 8-K provides (i) that “[a]t the Registrant’s
Annual Meeting of its stockholders held March 29, 2007, its stockholders elected
a new slate of directors to the Board” and (ii) that a meeting of the new Board
was held “on March 29, 2007 immediately after the Annual Meeting.”
[emphasis added] Notwithstanding the Company’s view, in order to
avoid any possible confusion, the Company is prepared to file an amendment
to
the 8-K in the form attached to this letter to add language which clarifies
that
no Stockholders attended the Board Meeting. The Company further disclosed in
Item 5.03 of the 8-K that “[a]t the Board Meeting, the Board approved the
adoption of the amended and restated by-laws of the Registrant.” The by-laws and
charter of the Company are publicly available and the Company does not believe
it was obligated to set forth in the 8-K the source of the Board’s authority to
amend the by-laws. However, in order to avoid any possible confusion, the
Company is prepared to file the attached amendment to the 8-K to add language
explicating the Board‘s authority to amend the by-laws.
1
Note that the provisions of Article VIII, Section 1 of the by-laws were not
amended by the amended and restated by-laws of the Company adopted at the
Board
Meeting.
April
25,
2007
Page
3
In
addition, in response to a verbal comment from the Staff, the proposed amendment
to the 8-K will delete the disclosure in Item 4.01 of the 8-K in order to
reflect that Ernst & Young LLP was appointed the Company’s auditors on an
earlier date, which appointment had been previously disclosed in a Form 8-K,
and
that the ratification of this appointment was not required to be disclosed
in
the 8-K.
Attached
hereto is an acknowledgement from the Company that: (i) it is responsible for
the adequacy and accuracy of the disclosure in the 8-K; (ii) Staff comments
or
changes to disclosures in response to Staff comments do not foreclose the
Commission from taking any action with respect to the 8-K; and (iii) the Company
may not assert Staff comments as a defense in any proceeding initiated by the
Commission or any person under federal securities laws of the United States.
Sincerely,
/s/
Arnold S. Jacobs
Arnold
S.
Jacobs
ASJ/lo
cc:
Seth
D. Krauss