Execution Version
AGREEMENT
This Agreement dated January 20, 2010 (this "Agreement"), is by and among
the persons and entities listed on Schedule A (collectively, the "Icahn Group",
and individually a "member" of the Icahn Group) and Take-Two Interactive
Software, Inc. (the "Company"). In consideration of and reliance upon the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Board Nomination. The Company agrees:
(a) to include Xxxxx Xxxxx, Xxxxx Xxxxxx and XxxxXxxx Xxx or their
respective Replacements (as hereinafter defined) (each, an "Icahn
Suggested Nominee", and collectively, the "Icahn Suggested Nominees")
in its slate of nominees for election as directors of the Company at
the Company's 2010 annual meeting of stockholders (the "2010 Annual
Meeting");
(b) that to the extent any of Xxxxx Xxxxx, Xxxxx Xxxxxx or XxxxXxxx
Xxx (or their respective Replacements) is unable to serve as a nominee
for election as director or to serve as a director, for any reason,
the Icahn Group shall have the right to submit the name of a
replacement (the "Replacement") to the Company for its approval (such
determination to be made in the sole discretion of the Company acting
in good faith) and who shall serve as the nominee for election as
director or serve as director. If the proposed Replacement is not
approved by the Company, the Icahn Group shall have the right to
submit another proposed Replacement to the Company for its approval
(such determination to be made in the sole discretion of the Company
acting in good faith). The Icahn Group shall have the right to
continue submitting the name of a proposed Replacement to the Company
for its approval until the Company approves that such Replacement may
serve as a nominee for election as director or to serve as a director
whereupon such person is appointed as the Replacement;
(c) its slate of nominees for election as directors of the Company at
the 2010 Annual Meeting shall not include Xxx Xxxxx, Xxxxxx X. Xxxxx
and Xxxx X. Xxxx; and
(d) to use commercially reasonable efforts to cause the election of
the Icahn Suggested Nominees to the Company's board of directors (the
"Board") at the 2010 Annual Meeting (including recommending that the
Company's stockholders vote in favor of the election of the Icahn
Suggested Nominees and otherwise supporting them for election in a
manner no less rigorous and favorable than the manner in which the
Company supports its other nominees in the aggregate).
2. Board Resignation.
(a) If, at anytime after the date hereof, the Icahn Group, together
with all Affiliates (as hereinafter defined) of the members of the
Icahn Group, ceases collectively to beneficially own (as defined in
Rule 13d-3 promulgated by the Securities and Exchange Commission (the
"SEC") under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), net of Short Interests (as defined below), at least
4,159,359 shares of common stock, par value $0.01 per share, of the
Company (the "Common Stock") (which beneficial ownership shall include
the right to vote at least 4,159,359 shares of Common Stock) (the
"Ownership Threshold"), the Icahn Group shall cause each of the Icahn
Suggested Nominees to promptly tender his resignation from the Board
and any committee of the Board on which he then sits. In furtherance
of this Section 2, each Icahn Suggested Nominee, upon his appointment
to the Board, shall execute an irrevocable resignation as director in
the form attached hereto as Exhibit A. "Short Interests" shall mean
any agreement, arrangement, understanding or relationship, including
any repurchase or similar so-called "stock borrowing" agreement or
arrangement, engaged in, directly or indirectly, by a member of the
Icahn Group or an Affiliate of a member of the Icahn Group, the
purpose or effect of which is to short shares of Common Stock.
(b) The Icahn Group hereby agrees to provide prompt written notice to
the Company if together with its Affiliates, its beneficial ownership
of Common Stock, net of Short Interests, no longer meets or exceeds
the Ownership Threshold.
3. Proxy Contest and Other Matters.
(a) So long as the Company has complied and is complying with its
obligations set forth in this Agreement, including those obligations
set forth in Section 1 hereto, no member of the Icahn Group shall, and
each member of the Icahn Group shall cause each Affiliate or Associate
(as such terms are hereinafter defined) of any such members (such
Affiliates and Associates, collectively and individually, the "Icahn
Affiliates") not to, (i) become a "participant" (as such term is
defined in Instruction 3 to Item 4 of Schedule 14A promulgated under
the Exchange Act) in or actively assist any third party in any
"solicitation" of "proxies" (as such terms are defined in Rule 14a-1
promulgated under the Exchange Act) for use at the 2010 Annual
Meeting, (ii) encourage, advise or influence any other person or
assist any third party in so encouraging, assisting or influencing any
person with respect to the giving or withholding of any proxy vote at
the 2010 Annual Meeting in opposition to the Company's slate of
nominees for election as directors of the Company, (iii) present any
proposal for consideration at the 2010 Annual Meeting or (iv) grant
any proxy with respect to the 2010 Annual Meeting (other than to the
named proxies included in the Company's proxy card for the 2010 Annual
Meeting, which shall include the Icahn Suggested Nominees and no more
than five other nominees) or deposit any of the Common Stock held by
the Icahn Group or the Icahn Affiliates in a voting trust or subject
them to a voting agreement or other arrangement of similar effect with
respect to the 2010 Annual Meeting. For purposes of this Agreement:
the terms "Affiliate" and "Associate" shall have the respective
meanings set forth in Rule 12b-2 promulgated by the SEC under the
Exchange Act, provided that neither the term Affiliate nor Associate
shall include any person that is a publicly held company or whom is an
officer or director of such publicly held company; and the terms
"person" or "persons" shall mean any individual, corporation
(including not-for-profit), general or limited partnership, limited
liability or unlimited liability company, joint venture, estate,
trust, association, organization or other entity of any kind or
nature.
(b) So long as the Company has complied and is complying with its
obligations set forth in this Agreement, including those obligations
set forth in Section 1 hereto, each member of the Icahn Group shall
cause all shares of Common Stock owned of record and shall instruct
the record owner, in case of all shares of Common Stock beneficially
owned (as defined in Rule 13d-3 promulgated by the SEC under the
Exchange Act) but not owned of record, directly or indirectly, by it,
or by any Icahn Affiliate, as of the record date for the 2010 Annual
Meeting, to be present for quorum purposes and to be voted, at the
2010 Annual Meeting or at any adjournments or postponements thereof,
in favor of the directors nominated by the Board for election at the
2010 Annual Meeting which shall include the Icahn Suggested Nominees
and no more than five other nominees.
4. Public Announcement.
(a) The Company and the Icahn Group shall announce this Agreement and
the material terms hereof by means of a press release in the form
attached hereto as Exhibit B (the "Press Release") as soon as
practicable on or after the date hereof. Neither the Icahn Group nor
any Icahn Affiliate shall make or cause to be made, directly or
indirectly, any public announcement or statement regarding this
Agreement or the subject matter hereof, except as required by
applicable law (in which case such statements shall not be
inconsistent with or contrary to the statements made in the Press
Release). Neither the Company nor any Company Affiliate shall make or
cause to be made, directly or indirectly, any public announcement or
statement regarding this Agreement or the subject matter hereof which
is inconsistent with or contrary to the statements made in the Press
Release.
(b) From the date hereof until the adjournment of the 2010 Annual
Meeting, neither the Company, on the one hand, nor the members of the
Icahn Group, on the other hand, shall disparage the other party or its
officers or directors; provided, however, that (i) the obligations of
the Company under this Section 4(b) shall terminate in the event that
any member of the Icahn Group or any Icahn Affiliate fails to comply
with its obligations under this Agreement and (ii) the obligations of
the members of the Icahn Group under this Section 4(b) shall terminate
in the event that the Company fails to comply with its obligations
under this Agreement.
5. Confidentiality Agreement. The Company hereby agrees that notwithstanding any
policy of the Company, the Icahn Suggested Nominees are permitted to and may
provide confidential information in accordance with the terms of the
confidentiality agreement in the form attached hereto as Exhibit C (the
"Confidentiality Agreement").
6. Representations and Warranties. Each of the parties hereto represents and
warrants to the other party that:
(a) such party has all requisite company authority and power to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby;
(b) the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly
authorized by all required company or other action on the part of such
party and no other proceedings on the part of such party are necessary
to authorize the execution and delivery of this Agreement or to
consummate the transactions contemplated hereby;
(c) this Agreement has been duly and validly executed and delivered
by such party and constitutes the valid and binding obligation of such
party enforceable against such party in accordance with its terms; and
(d) this Agreement will not result in a violation of any terms or
provisions of any agreements to which such person is a party or by
which such party may otherwise be bound or of any law, rule, license,
regulation, judgment, order or decree governing or affecting such
party.
7. Miscellaneous. The parties hereto shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement exclusively in the Court of Chancery
or other federal or state courts of the State of Delaware, in addition to any
other remedy to which they are entitled at law or in equity. Furthermore, each
of the parties hereto (a) consents to submit itself to the personal jurisdiction
of the Court of Chancery or other federal or state courts of the State of
Delaware in the event any dispute arises out of this Agreement or the
transactions contemplated by this Agreement, (b) agrees that it shall not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, (c) agrees that it shall not bring any action
relating to this Agreement or the transactions contemplated by this Agreement in
any court other than the Court of Chancery or other federal or state courts of
the State of Delaware, and each of the parties irrevocably waives the right to
trial by jury, (d) agrees to waive any bonding requirement under any applicable
law, in the case any other party seeks to enforce the terms by way of equitable
relief and (e) each of the parties irrevocably consents to service of process by
a reputable overnight mail delivery service, signature requested, to the address
of such parties' principal place of business or as otherwise provided by
applicable law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING
WITHOUT LIMITATION VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE
OF DELAWARE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE
THAT WOULD COMPEL THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
8. Entire Agreement. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and may be amended only by an
agreement in writing executed by the parties hereto.
9. Notices. All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto shall
be in writing and shall be deemed validly given, made or served, if (a) given by
telecopy, when such telecopy is transmitted to the telecopy number set forth
below and the appropriate confirmation is received or (b) if given by any other
means, when actually received during normal business hours at the address
specified in this subsection:
if to the Company: Take-Two Interactive Software, Inc.
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
if to the Icahn Group: Icahn Capital LP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
10. Severability. If at any time subsequent to the date hereof, any provision of
this Agreement shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall be of no force and effect,
but the illegality or unenforceability of such provision shall have no effect
upon the legality or enforceability of any other provision of this Agreement.
11. Counterparts. This Agreement may be executed in two or more counterparts
(including by facsimile or PDF) which together shall constitute a single
agreement.
12. Successors and Assigns. This Agreement shall not be assignable by any of the
parties to this Agreement but shall be binding on successors of the parties
hereto.
13. No Third Party Beneficiaries. This Agreement is solely for the benefit of
the parties hereto and the Icahn Suggested Nominees and is not enforceable by
any other persons.
14. Fees and Expenses. Neither the Company, on the one hand, nor the Icahn
Group, on the other hand, will be responsible for any fees or expenses of the
other in connection with this Agreement.
15. Interpretation and Construction. Each of the parties hereto acknowledges
that it has been represented by counsel of its choice throughout all
negotiations that have preceded the execution of this Agreement, and that it has
executed the same with the advice of said independent counsel. Each party and
its counsel cooperated and participated in the drafting and preparation of this
Agreement and the documents referred to herein, and any and all drafts relating
thereto exchanged among the parties shall be deemed the work product of all of
the parties and may not be construed against any party by reason of its drafting
or preparation. Accordingly, any rule of law or any legal decision that would
require interpretation of any ambiguities in this Agreement against any party
that drafted or prepared it is of no application and is hereby expressly waived
by each of the parties hereto, and any controversy over interpretations of this
Agreement shall be decided without regards to events of drafting or preparation.
[Signature Pages Follow]
[Signature Page to Agreement]
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement,
or caused the same to be executed by its duly authorized representative as of
the date first above written.
TAKE-TWO INTERACTIVE SOFTWARE, INC.
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and
General Counsel
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN OFFSHORE LP
ICAHN PARTNERS LP
ICAHN ONSHORE LP
ICAHN CAPITAL LP
IPH GP LLC
ICAHN ENTERPRISES G.P. INC.
ICAHN ENTERPRISES HOLDINGS X.X.
XXXXXXX CORP.
XXXXXX INVESTMENTS LLC
BARBERRY CORP.
HIGH RIVER LIMITED PARTNERSHIP
By: Xxxxxx Investments LLC, general partner
By: _____________________________
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
ICAHN CAPITAL LP
By: IPH GP LLC, its general partner
By: Icahn Enterprises Holdings L.P., its
sole member
By: Icahn Enterprises G.P. Inc., its
general partner
IPH GP LLC
By: Icahn Enterprises Holdings L.P., its
sole member
By: Icahn Enterprises G.P. Inc., its
general partner
ICAHN ENTERPRISES HOLDINGS L.P.
By: Icahn Enterprises G.P. Inc., its
general partner
ICAHN ENTERPRISES G.P. INC.
By: ________________________________
Name: Xxxxxxxx Xxxxxx
Title: Chief Financial Officer
XXXX X. ICAHN
/s/ Xxxx X. Icahn
-----------------
SCHEDULE A
----------
High River Limited Partnership
Xxxxxx Investments LLC
Barberry Corp.
Icahn Partners Master Fund LP
Icahn Partners Master Fund II LP
Icahn Partners Master Fund III LP
Icahn Offshore LP
Icahn Partners LP
Ichan Onshore LP
Icahn Capital LP
IPH GP LLC
Icahn Enterprises Holdings L.P.
Icahn Enterprises G.P. Inc.
Beckton Corp.
Xxxx X. Icahn
EXHIBIT A
---------
[FORM OF IRREVOCABLE RESIGNATION]
[Date]
Attention: Chairman of the Board of Directors
Reference is made to the Agreement, dated as of January 20, 2010 (the
"Agreement"), by and among Take-Two Interactive Software, Inc. (the "Company")
and the Icahn Group (as defined therein). Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Agreement.
In accordance with Section 2 of the Agreement I hereby irrevocably tender my
resignation (the "Resignation") as a director of the Board effective as of the
occurrence of a Resignation Event (as defined below), the acceptance, by
executing below, of this resignation by the Board (excluding me and the other
Icahn Suggested Nominees) and the delivery of this fully executed Resignation to
the Icahn Group . For purposes hereof, a "Resignation Event" shall occur in the
event that at any time the Icahn Group, together with all Icahn Affiliates,
cease to collectively beneficially own (as defined in Rule 13d-3 promulgated by
the SEC under the Exchange Act), net of Short Interests, at least 4,159,359
shares of Common Stock. I hereby acknowledge that this resignation as a director
of the Board is as a result of the terms and conditions of the Agreement. Upon
the effectiveness of this resignation and the acceptance of this resignation by
the Board, I will immediately cease to be a member of the Board and all
committees thereof.
This resignation is irrevocable and may not be withdrawn by me at any time.
Very truly yours,
__________________________
[Director]
ACCEPTED BY:
_______________________
Name: [Name]
Title: Chairman of the Board
EXHIBIT B
---------
[FORM OF PRESS RELEASE]
[TO BE ATTACHED]
EXHIBIT C
---------
[FORM OF CONFIDENTIALITY AGREEMENT]
TAKE-TWO INTERACTIVE SOFTWARE, INC.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
To: [Insert Icahn Group member]
Ladies and Gentlemen:
This letter agreement shall become effective upon the election to the Board of
Directors of the Company of the Icahn Suggested Nominees. It results from an
Agreement, dated as of January 20, 2010 (the "Agreement"), by and among Take-Two
Interactive Software, Inc. (the "Company") and the Icahn Group (as defined
therein). Capitalized terms used in this letter agreement not otherwise defined
herein shall have the meanings ascribed to such terms in the Agreement.
Among other things, pursuant to the terms of the Agreement, the Icahn Suggested
Nominees will be included on the Company's slate of nominees for election as
directors of the Company at the Company's 2010 annual meeting of stockholders.
The Company understands and agrees that, subject to the terms of, and in
accordance with, this letter agreement, each Icahn Suggested Nominee may, if and
to the extent he desires to do so, disclose information he obtains while serving
as a member of the Board to you and your Representatives (as hereinafter
defined) and may discuss such information with such persons, subject to the
terms and conditions of this letter agreement. As a result, you may receive
certain non-public information regarding the Company. You acknowledge that this
information is proprietary to the Company and may include trade secrets or other
business information the disclosure of which could harm the Company. In
consideration for, and as a condition of, non-public information being furnished
to you (and, subject to the restrictions in paragraph 2 below, your agents,
representatives, attorneys, advisors, directors, officers, members, partners and
employees, collectively, "Representatives"), you agree to treat any and all
information concerning or relating to the Company or any of its subsidiaries or
affiliates that is furnished to you or your Representatives (regardless of the
manner in which it is furnished, including without limitation in written or
electronic format or orally, gathered by visual inspection or otherwise) by any
Icahn Suggested Nominee, or by or on behalf of the Company, together with any
notes, analyses, reports, models, compilations, studies, interpretations,
documents or records containing, referring, relating to, based upon or derived
from such information, in whole or in part (collectively, "Confidential
Information"), in accordance with the provisions of this letter agreement, and
to take or abstain from taking the other actions hereinafter set forth.
1. The term "Confidential Information" does not include information that (i) is
or has become generally available to the public other than as a result of a
direct or indirect disclosure by you or your Representatives in violation of
this letter agreement or by any Icahn Suggested Nominee in violation of any
contractual, legal or fiduciary obligation to or of the Company, (ii) was within
your or any of your Representatives' possession on a non-confidential basis
prior to its being furnished to any Icahn Suggested Nominee by or on behalf of
the Company or its Representative or to you by any Icahn Suggested Nominee, or
by or on behalf of the Company or its Representatives or (iii) is received from
a source other than any Icahn Suggested Nominee, the Company or any of its
Representatives; provided, that in the case of each of (ii) and (iii) above, the
source of such information was not known to you to be bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Company or any of its subsidiaries with respect to such
information at the time the same was disclosed.
2. You hereby agree that you and your Representatives will (a) keep the
Confidential Information strictly confidential and (b) not disclose any of the
Confidential Information in any manner whatsoever without the prior written
consent of the Company; provided, however, that you may disclose any of such
information to your Representatives (i) who need to know such information for
the sole purpose of advising you on your investment in the Company and (ii) who
are informed by you in advance of the confidential nature of such information
and who agree to comply with the use and confidentiality obligations contained
in this letter agreement as if they are a party hereto; provided, further, that
you will be responsible for any violation of this letter agreement by your
Representatives as if they were parties hereto. It is understood and agreed that
the Icahn Suggested Nominees shall not take any action or fail to take any
action with the purpose or effect of waiving attorney client privilege, disclose
to you any Legal Advice (as defined below) that may be included in the
Confidential Information with respect to which such disclosure would constitute
waiver of the Company's attorney client privilege or attorney work-product;
provided, however, that the Icahn Suggested Nominees may provide such disclosure
if any such Icahn Suggested Nominee has not taken any action or failed to take
any action that has the purpose or effect of waiving attorney client privilege
with respect to any portion of such Legal Advice and if reputable outside legal
counsel experienced in the area and reasonably acceptable to the Company
provides the Company with a written opinion that such disclosure will not waive
the Company's attorney client privilege with respect to such Legal Advice.
"Legal Advice" as used herein shall be solely and exclusively limited to the
legal advice provided by internal or outside legal counsel and shall not include
factual information or the formulation or analysis of business strategy.
3. In the event that you or any of your Representatives are required by
applicable subpoena, legal process or other legal requirement to disclose any of
the Confidential Information, you will promptly notify (except where such notice
would be legally prohibited) the Company in writing and provide reasonable
cooperation, at the Company's expense, so that the Company may seek a protective
order or other appropriate remedy and/or waive compliance with the provisions of
this Confidentiality Agreement. If, in the absence of a protective order or
other remedy or the receipt of a waiver from the Company, you or any of your
Representatives are nonetheless, in the opinion of your counsel, legally
compelled to disclose Confidential Information, you may, without liability
hereunder, disclose to such tribunal only that portion of the Confidential
Information which such counsel advises you is legally required to be disclosed,
provided that you notify the recipient of the existence of this Confidentiality
Agreement and your obligations hereunder to maintain the confidentiality of the
Confidential Information. In no event will you oppose any action by the Company
to obtain a protective order, motion to quash or other relief to prevent the
disclosure of the Confidential Information or to obtain reliable assurance that
confidential treatment will be afforded the Confidential Information. It is
understood that there shall be no "legal requirement" requiring you to disclose
any Confidential Information solely by virtue of the fact that, absent such
disclosure, you would be prohibited from purchasing, selling, or engaging in
derivative or other transactions with respect to, the Common Stock of the
Company (including, for the avoidance of doubt, any agreement or understanding
with respect to the voting or the granting or withholding of consent with
respect to the Common Stock of the Company or otherwise proposing or making an
offer to do any of the foregoing).
4. You acknowledge that (a) none of the Company or any of its Representatives
makes any representation or warranty, express or implied, as to the accuracy or
completeness of any Confidential Information, and (b) none of the Company or any
of its Representatives shall have any liability to you or to any of your
Representatives relating to or resulting from the use of the Confidential
Information or any errors therein or omissions therefrom. You and your
Representatives shall not directly or indirectly initiate contact or
communication with any executive or employee of the Company other than the
Executive Chairman, Chief Executive Officer or General Counsel of the Company
concerning Confidential Information, or to seek any information in connection
therewith from any such person other than the Executive Chairman, Chief
Executive Officer or General Counsel of the Company without the prior written
consent of the Company.
5. All Confidential Information shall remain the property of the Company.
Neither you nor any of your Representatives shall by virtue of any disclosure of
and/or your use of any Confidential Information acquire any rights with respect
thereto, all of which rights (including all intellectual property rights) shall
remain exclusively with the Company. At any time upon the request of the Company
for any reason, you will promptly return to the Company, or destroy, all hard
copies of the Confidential Information and permanently erase or delete all
electronic copies of the Confidential Information in your or any of your
Representative's possession or control (and, upon the request of the Company,
shall certify to the Company that such Confidential Information has been erased
or deleted, as the case may be; provided that nothing herein shall require you
to return or destroy automatically created electronic copies stored on system
back-up tapes or disks. Notwithstanding the return, destruction or erasure or
deletion of Confidential Information, you will continue to be bound by the
obligations contained herein.
6. You acknowledge, and will advise your Representatives, that the Confidential
Information may constitute material non-public information under applicable
federal and state securities laws.
7. You hereby represent and warrant to the Company that this letter agreement
has been duly authorized, executed and delivered by you, and is a valid and
binding obligation, enforceable against you in accordance with its terms.
8. It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
future exercise thereof or the exercise of any other right, power or privilege
hereunder.
9. You acknowledge that the value of the Confidential Information to the Company
is unique and substantial, but may be impractical or difficult to assess in
monetary terms. In the event of an actual or threatened violation of this letter
agreement, in addition to any and all other remedies which may be available to
the Company, you expressly consent to the Company's obtaining the enforcement of
this letter agreement by injunctive relief or specific performance, without
proof of actual damages or posting of a bond.
10. You hereby agree to indemnify and hold harmless the Company and its
Affiliates and their respective officers, directors, employees, Affiliates,
advisors, agents and controlling persons, from and against any and all
out-of-pocket reasonable expenses, joint and several, incurred by the Company in
defending any inquiry or investigation, whether made, instituted or conducted by
any Governmental or Regulatory Authority (as defined below), related to or based
upon any acquisitions or dispositions of any Common Stock or other securities of
the Company by you or any of your Affiliates, Associates or representatives, or
any alleged "tippee" thereof, which inquiry or investigation has resulted in a
final non-appealable determination that you or your Affiliates have violated any
applicable law related to trading on the Confidential Information covered by
this Agreement. "Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, bureau, board, commission, department,
official or other instrumentality of the United States, any foreign country or
any domestic or foreign state, county, city or other political subdivision, and
shall include any stock exchange and quotation service.
11. Each of the parties hereto (a) consents to submit itself to the personal
jurisdiction of the Court of Chancery or other federal or state courts of the
State of Delaware in the event any dispute arises out of this Agreement or the
transactions contemplated by this Agreement, (b) agrees that it shall not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, (c) agrees that it shall not bring any action
relating to this Agreement or the transactions contemplated by this Agreement in
any court other than the Court of Chancery or other federal or state courts of
the State of Delaware, and each of the parties irrevocably waives the right to
trial by jury and (d) each of the parties irrevocably consents to service of
process by a reputable overnight mail delivery service, signature requested, to
the address of such parties' principal place of business or as otherwise
provided by applicable law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS,
INCLUDING WITHOUT LIMITATION VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF
THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF
SUCH STATE THAT WOULD COMPEL THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
12. This letter agreement contains the entire understanding of the parties with
respect to the subject matter hereof and thereof and may be amended only by an
agreement in writing executed by the parties hereto.
13. All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto shall
be in writing and shall be deemed validly given, made or served, if (a) given by
telecopy, when such telecopy is transmitted to the telecopy number set forth
below and the appropriate confirmation is received or (b) if given by any other
means, when actually received during normal business hours at the address
specified in this subsection:
if to the Company: Take-Two Interactive Software, Inc.
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
if to the Icahn Group: Icahn Capital LP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
14. If at any time subsequent to the date hereof, any provision of this letter
agreement shall be held by any court of competent jurisdiction to be illegal,
void or unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon the
legality or enforceability of any other provision of this letter agreement.
15. This letter agreement may be executed (including by facsimile or PDF) in two
or more counterparts which together shall constitute a single agreement.
16. This letter agreement and the rights and obligations herein may not be
assigned or otherwise transferred, in whole or in part, by you without the
express written consent of the Company.
17. This Confidentiality Agreement shall expire two years from the date on which
each Icahn Suggested Nominee ceases to be a director of the Company.
18. No licenses or rights under any patent, copyright, trademark, or trade
secret are granted or are to be implied by this letter agreements.
19. Each of the parties hereto acknowledges that it has been represented by
counsel of its choice throughout all negotiations that have preceded the
execution of this agreement, and that it has executed the same with the advice
of said counsel. Each party and its counsel cooperated and participated in the
drafting and preparation of this agreement and the documents referred to herein,
and any and all drafts relating thereto exchanged among the parties shall be
deemed the work product of all of the parties and may not be construed against
any party by reason of its drafting or preparation. Accordingly, any rule of law
or any legal decision that would require interpretation of any ambiguities in
this agreement against any party that drafted or prepared it is of no
application and is hereby expressly waived by each of the parties hereto, and
any controversy over interpretations of this agreement shall be decided without
regards to events of drafting or preparation. The section headings contained in
this agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this agreement.
[Signature Page Follows]
Please confirm your agreement with the foregoing by signing and returning one
copy of this letter to the undersigned, whereupon this letter agreement shall
become a binding agreement between you and the Company.
Very truly yours,
TAKE-TWO INTERACTIVE SOFTWARE, INC.
By: ______________________________
Name:
Title:
Accepted and agreed as of the date first written above:
By: ________________________________
Name:
Title:
