As filed with the Securities and Exchange Commission on December 22, 2004.
Registration No. 333-
UNITED STATES
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.
(Exact name of registrant as specified in its charter)
Delaware 51-0350842
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
622 Broadway, New York, New York 10012
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(Address of principal executive offices) (Zip Code)
Take-Two Interactive Software, Inc. Incentive Stock Plan
(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
(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
Title of each class of Aggregate Proposed Maximum
Securities to Amount to be Offering Price Aggregate Offering Amount of
be Registered Registered(1) Per Share(2) Price (2) Registration Fee
---------------------- ------------- ------------ ------------------ ----------------
Common Stock, par 724,319 shares $32.25 $23,359,288 $2,749.39
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 registrant's Incentive
Stock Plan or to otherwise prevent dilution resulting from stock
dividends, stock splits or similar transactions.
(2) Estimated solely for purpose of calculating the registration fee. Pursuant
to Rule 457(c) of the Securities Act of 1933, as amended, the registration
fee has been calculated based upon the average of the high and low prices,
as reported by Nasdaq, for the registrant's common stock as of December
20, 2004.
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,
2004.
2. 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.
3. 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 herein or contained in a document incorporated by 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 document 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
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.
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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.
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:
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(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.
(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 20th day of
December 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 December 20, 2004
----------------------------------- Officer (Principal Executive Officer)
Richard W. Roedel
/s/ Paul Eibeler Director December 20, 2004
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Paul Eibeler
/s/ Karl H. Winters Chief Financial and Accounting Officer December 20, 2004
-----------------------------------
Karl H. Winters
/s/ Robert Flug Director December 20, 2004
-----------------------------------
Robert Flug
/s/ Steven Tisch Director December 20, 2004
-----------------------------------
Steven Tisch
/s/ Oliver R. Grace, Jr. Director December 20, 2004
-----------------------------------
Oliver R. Grace, Jr.
/s/ Todd Emmel Director December 20 , 2004
-----------------------------------
Todd Emmel
/s/ Mark Lewis Director December 20, 2004
-----------------------------------
Mark Lewis
/s/ Barbara A. Kaczynski Director December 20, 2004
-----------------------------------
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)