REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement dated as of July 29, 1997, by and between
Take-Two Interactive Software, Inc., a Delaware corporation (the "Company"), and
GameTek (FL), Inc., a Florida corporation (the "Holder").
WHEREAS, the Company issued to the Holder pursuant to a Purchase Agreement
dated July 29, 1997, by and among the Company and the Holder (the "Purchase
Agreement"), an aggregate of 406,533 shares (the "Shares") of the Company's
Common Stock, par value $.01 per share; and
WHEREAS, pursuant to the Purchase Agreement, the Company has agreed to
grant to the Holder registration rights set forth herein with respect to the
Shares.
NOW, THEREFORE, the parties do hereby agree as follows:
1. S-3 Registration. The Company shall use its reasonable best efforts to
include the Shares in a registration statement on Form S-3 (the "Form S-3
Registration Statement") to be filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Act") on
the date the Company first becomes eligible to use a Form S-3 Registration
Statement (which is currently anticipated to be April 14, 1998) and shall use
its reasonable best efforts to cause the Form S-3 Registration Statement to
become and remain effective under the Act so as to permit a public offering and
sale of the Shares for a period of nine (9) months; provided, however, that (i)
in the event that the Company is engaged in negotiations with respect to an
acquisition, merger, financing or other material event which would require the
Company to file a Form 8-K in the event that such acquisition, merger, financing
or other material event is consummated or has otherwise occurred or (ii) in the
event the Company shall furnish to the Holder a certificate signed by the chief
executive officer of the Company stating that in the good faith judgment of the
Company and its investment banker that it would be detrimental to the Company
and its shareholders for the Company to immediately proceed with such Form S-3
Registration Statement and it is therefore essential to defer the filing of such
Form S-3 Registration Statement, then, in each such case, the Company will have
the right to defer such filing for a reasonable period not to exceed ninety (90)
days; provided, further that the nine (9) month registration period shall be
extended by the length of such deferral period.
2. Piggyback Registration.
(a) If, at any time after April 14, 1998, the Shares have not been included
in the Form S-3 Registration Statement, and the Company proposes to prepare and
file with the Commission a registration statement covering equity or debt
securities of the Company or any such securities of the Company held by its
shareholders, other than in connection with a merger, acquisition or pursuant to
a registration statement on Form S-4
or Form S-8 or any successor form (for purposes of this Section 2, a
"Registration Statement"), the Company will give written notice of its intention
to do so by [certified mail] ("Notice"), at least 10 days prior to the filing of
each such Registration Statement, to the Holder. Upon the written request of the
Holder, made within 8 days after receipt of the Notice, that the Company include
any of the Shares in the proposed Registration Statement, the Company shall, as
to the Holder, use its best efforts to effect the registration under the Act of
the Shares which it has been so requested to register ("Piggyback
Registration"); provided, however, that if the Piggyback Registration is in
connection with an underwritten public offering and in the written opinion of
the Company's underwriter or managing underwriter of the underwriting group, if
any, for such offering, the inclusion of all or a portion of the Shares
requested to be registered, when added to the securities being registered by the
Company or the selling shareholder(s), if any, will exceed the maximum amount of
the Company's securities which can be marketed (i) at a price reasonably related
to their then current market value, or (ii) without otherwise having an adverse
effect on the offering, then the Company may exclude from such offering all or a
portion of the Shares which it has been requested to register.
(b) If securities are proposed to be offered for sale pursuant to such
Registration Statement by other security holders of the Company and the total
number of securities to be offered by the Holder and such other selling security
holders is required to be reduced pursuant to a request from the underwriter or
managing underwriter as set forth in paragraph (a) above, the aggregate number
of Shares to be offered by the Holder pursuant to such Registration Statement
shall equal the number which bears the same ratio to the maximum number of
securities that the underwriter or managing underwriter believes may be included
for all the selling security holders (including the Holder) as the original
number of Shares proposed to be sold by the Holder bears to the total original
number of securities proposed to be offered by the Holder and the other selling
security holders.
(c) Notwithstanding the preceding provisions of this Section, the Company
shall have the right at any time after it shall have given written notice
pursuant to this Section (irrespective of whether any written request for
inclusion of such securities shall have already been made) to elect not to file
any proposed Registration Statement, or to withdraw the same after the filing
but prior to the effective date thereof.
3. Covenants of the Company With Respect to Registration. The Company
hereby covenants and agrees as follows:
(a) Following the effective date of any registration statement filed
under Section 1 or 2, the Company shall, upon the request of the Holder,
forthwith supply such
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reasonable number of copies of the registration statement and prospectus
meeting the requirements of the Act as shall be reasonably requested by the
Holder to permit the Holder to make a public distribution of the Shares.
The obligations of the Company hereunder with respect to the Shares are
expressly conditioned on the Holder's furnishing to the Company such
appropriate information concerning the Holder, the Shares and the terms of
the Holder's offering of such shares as the Company may request.
(b) The Company will pay all costs, fees and expenses in connection
with any registration statement filed pursuant to Sections 1 and 2 hereof,
including, without limitation, the Company's legal and accounting fees,
printing expenses and blue sky fees and expenses; provided, however, that
the Holder shall be solely responsible for the fees of any counsel retained
by the Holder in connection with such registration and any transfer taxes
or underwriting discounts, selling commissions or selling fees applicable
to the Shares sold by the Holder pursuant thereto.
(c) The Company will use its reasonable best efforts to qualify or
register the Shares included in a registration statement for offering and
sale under the securities or blue sky laws of such states as are reasonably
requested by the Holder, provided that the Company shall not be obligated
to execute or file any general consent to service of process (unless the
Company is already then subject to service in such jurisdiction) or to
qualify as a foreign corporation to do business under the laws of any such
jurisdiction, except as may be required by the Act and its rules and
regulations.
4. Covenant of the Holder. The Holder, upon receipt of notice from the
Company that an event has occurred which requires a post-effective amendment to
a registration statement or a supplement to the prospectus included therein,
shall promptly discontinue the sale of Shares until the Holder receives a copy
of a supplemented or amended prospectus from the Company, which the Company
shall provide as soon as practicable after such notice.
5. Indemnification. The Company shall indemnify, defend and hold harmless
the Holder from and against any and all losses, claims, damages and liabilities
caused by or arising out of any untrue statement of a material fact contained in
a registration statement or prospectus included therein or caused by or arising
out of any omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission based upon information furnished or required to be
furnished in writing to the Company by the Holder expressly for use therein;
provided, however, that the indemnification in this Section shall not inure to
the benefit of
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the Holder on account of any such loss, claim, damage or liability arising from
the sale of Shares by the Holder, if a copy of a subsequent prospectus
correcting the untrue statement or omission in such earlier prospectus was
provided to the Holder by the Company prior to the sale and the subsequent
prospectus was not delivered or sent by the Holder to the purchaser prior to
such sale. The Holder shall at the same time indemnify the Company, its
directors, each officer signing a registration statement and each person who
controls the Company within the meaning of the Act from and against any and all
losses, claims, damages and liabilities caused by or arising out of any untrue
statement of a material fact contained in a registration statement or prospectus
included therein, or caused by or arising out of any omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case, only insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omissions based
upon information furnished in writing to the Company by the Holder expressly for
use therein.
6. Governing Law.
(a) This Agreement shall be governed as to validity, interpretation,
construction, effect and in all other respects by the internal substantive laws
of the State of New York, without giving effect to the choice of law rules
thereof.
(b) Each of the Company and the Holder hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of New York and of the United States located in the County of New
York, State of New York (the "New York Courts") for any litigation arising out
of or relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any litigation relating thereto except in such courts),
waives any objection to the laying of venue of any such litigation in the New
York Courts and agrees not to plead or claim that such litigation brought in any
New York Courts has been brought in an inconvenient forum.
7. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed duly given when delivered by
hand or mailed by express, registered or certified mail, postage prepaid, return
receipt requested, as follows:
If to the Company, at:
Take-Two Interactive Software, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Chairman
with a copy of the same to:
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Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
If to the Holder(s), at that address set forth under their name on the
signature page.
with a copy of the same to:
Xxxxxxxx, Xxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxx Xxxx
Xxxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Or such other address as has been indicated by either party in accordance
with a notice duly given in accordance with the provisions of this Section.
8. Amendment. This Agreement may only be amended by a written instrument
executed by the Company and the Holders.
9. Entire Agreement. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings of the parties, oral and written, with
respect to the subject matter hereof.
10. Benefits. Nothing herein contained, express or implied, is intended to
confer upon any person other than the parties hereto any rights or remedies
under or by reason of this Agreement. Certain of the Shares have been
transferred to Ocean Bank and the Company agrees that Ocean Bank may participate
pari passu with Holder in any registration of the Shares pursuant to this
Agreement exercised by the Holder. Holder shall be responsible for notifying
Ocean Bank and corresponding with the Company with respect thereto.
11. Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
12. Severability. Any provision of this Agreement which is held by a court
of competent jurisdiction to be prohibited or unenforceable in any
jurisdiction(s) shall be, as to such jurisdiction(s), ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
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13. Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the date first above written.
Company: TAKE-TWO INTERACTIVE SOFTWARE, INC.
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Chairman
Holder: GAMETEK INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Authorized Signer
Address: c/o Northern Blue, LLP
000 Xxxxxx Xxxxx
Xxxxxx Xxxx, Xx. Xxxxxxxx
00000
Number of Shares: 406,553_
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
EXECUTED IN CONNECTION WITH THE
ASSET AND STOCK PURCHASE AGREEMENT AMONG
GAMETEK (UK), LIMITED, GAMETEK (FL), INC.,
ALTERNATIVE REALITY TECHNOLOGIES, INC AND
TAKE TWO INTERACTIVE SOFTWARE, INC.
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