As filed with the Securities and Exchange Commission on October 29, 1999
(File No. 333-______)
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
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
575 Broadway, New York, New York 10012
(Address of principal executive offices) (Zip Code)
Various Stock Option Agreements for Employees
(Full title of the plan)
Ryan A. Brant, Chief Executive Officer
Take-Two Interactive Software, Inc., 575 Broadway, New York, NY 10012
(Name and address of agent for service)
(212) 334-6633
(Telephone number, including area code, of agent for service)
Copy to:
Robert J. Mittman, Esq.
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Proposed Maximum Aggregate
Title of Securities to be Amount to be Offering Price Per Offering Amount of
Registered Registered Share(1) Price(1) Registration Fee
- ------------------------- ----------------- ------------------------- ---------------- ----------------
Common Stock,
par value $.01 per share 625,167 shares(2) $7.73 $4,832,540.91 $1,343.45
(1) Estimated solely for the purpose of calculating the registration fee
and based upon the average price at which the shares may be purchased upon the
exercise of options previously granted by the registrant to certain employees.
(2) Pursuant to Rule 416 under the Securities Act of 1933, there are also
being registered additional shares of common stock as may become issuable
pursuant to the anti-dilution provisions of the option agreements under which
the shares are issuable.
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 of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We have previously filed the following documents with the Securities and
Exchange Commission. These documents are incorporated by reference in and shall
be deemed a part of this Registration Statement:
(a) Annual Report on Form 10-KSB for the fiscal year ended October 31,
1998;
(b) Form 10-KSB/A Amendment to Annual Report for the fiscal year ended
October 31, 1998;
(c) Current Report on Form 8-K dated February 23, 1999 for the event dated
December 22, 1998;
(d) Quarterly Report on Form 10-Q for the three month period ended January
31, 1999;
(e) Quarterly Report on Form 10-Q for the three month period ended April
30, 1999;
(f) Quarterly Report on Form 10-Q for the three month period ended July
31, 1999;
(g) Current report on Form 8-K dated October 8, 1999 for the event dated
September 29, 1999;
(h) The description of our Common Stock contained in our Registration
Statement on Form 8-A, together with any amendment or report filed
with the SEC for the purpose of updating this description; and
(i) All documents that we file pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, after the
date of this document and 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 and to be made a part of
this document as of the date of filing of such documents. Any
statement contained in a document incorporated by reference in this
document shall be deemed to be modified or superseded to the extent
that a statement contained in any subsequently filed document which is
deemed to be incorporated by reference in this document modifies or
replaces such 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 Delaware General Corporation Law contains provisions
entitling our directors and officers to indemnification against judgments,
fines, amounts paid in settlement and reasonable expenses (including attorneys'
fees) as the result of an action or proceeding in which they may be involved by
reason of having been a director or officer. Our Certificate of Incorporation
includes a provision that limits the personal liability of our directors to us
or our stockholders for monetary damages arising from a breach of their
fiduciary duties as directors to the fullest extent permitted at any time under
the Delaware General Corporation Law. Under the Delaware General Corporation Law
as current in effect, this provision limits a director's liability except where
such director (i) breaches a duty of loyalty to us or our stockholders, (ii)
fails to act in good faith or engages in intentional misconduct or a knowing
violation of law, (iii) authorizes payment of an unlawful dividend or stock
purchase or redemption as provided in Section 174 of the Delaware General
Corporation Law or (iv) obtains an improper personal benefit. This provision
does not prevent us or our stockholders from seeking equitable remedies, such an
injunctive relief or recision. If equitable remedies are found not to be
available to stockholders in any particular case, stockholders may not have any
effective remedy against actions taken by directors that constitute negligence
or gross negligence.
Our Certificate of Incorporation also provides that we shall indemnify our
officers and directors to the maximum extent permitted from time to time under
the Delaware General Corporation Law and requires us to advance expenses to any
director or officer to the extent that indemnification and advancement of
expenses is permitted under such law, as it may from time to time be in effect.
In addition, our Bylaws require us to indemnify to the fullest extent permitted
by law any director, officer, employee or agent for acts which that person
reasonably believes are not in violation of our corporate purposes as set forth
in our Certificate of Incorporation. At present, the Delaware General
Corporation Law 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 our best interests.
Item 7. Exemption from Registration Claimed.
Not applicable.
II-2
Item 8. Exhibits.
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Exhibit No. Description
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5 Opinion of Tenzer Greenblatt LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Aronowitz, Chaiken & Hardesty, LLP.
23.3 Consent of Tenzer Greenblatt LLP (included in Exhibit 5).
24.1 Powers of Attorney (included on the signature page).
Item 9. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) 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 prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) 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 the 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 end 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
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(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)(a)(i) and (1)(a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(b) 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.
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(c) 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.
(2) 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.
(3) 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 procedures, 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 the 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 of filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, in the city of New
York, state of New York, on the 13th day of October 1999.
TAKE-TWO INTERACTIVE SOFTWARE, INC.
By: /s/Ryan A. Brant
-----------------------
Ryan A. Brant
Chief Executive Officer
Each person whose signature appears below authorizes each of Ryan A. Brant
and Barbara A. Ras or either of them as his true and lawful attorney-in-fact
with full power of substitution to execute in the name and on behalf of each
person, individually and in each capacity stated below, and to file any and all
amendments to this registration statement, including any and all post-effective
amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates stated.
Signature Title Date
- --------- ----- ----
/s/Ryan A. Brant Chief Executive Officer and Director October 13, 1999
- ---------------------- (Principal Executive Officer)
Ryan A. Brant
/s/Larry Muller Chief Financial Officer October 13, 1999
- ---------------------- (Principal Financial Officer)
Larry Muller
/s/Barbara A. Ras Chief Accounting Officer (Principal October 13, 1999
- ---------------------- Accounting Officer) and Secretary
Barbara A. Ras
/s/Oliver R. Grace, Jr Director October 13, 1999
- ----------------------
Oliver R. Grace, Jr.
/s/Neil S. Hirsch Director October 13, 1999
- ----------------------
Neil S. Hirsch
/s/Kelly Sumner Vice President of International October 13, 1999
- ---------------------- Operations and Director
Kelly Sumner
/s/Robert Flug Director October 13, 1999
- ----------------------
Robert Flug
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Exhibit Index
Exhibit No. Description
- ----------- -----------
5 Opinion of Tenzer Greenblatt LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Aronowitz, Chaiken & Hardesty LLP
23.3 Consent of Tenzer Greenblatt LLP
(included in Exhibit 5)
24.1 Powers of Attorney
(included on signature page)
EXHIBIT 5
October 26, 1999
Take-Two Interactive Software, Inc.
575 Broadway
New York, New York 10012
Gentlemen:
You have requested our opinion with respect to the offer and sale by you,
Take-Two Interactive Software, Inc., a Delaware corporation (the "Company"),
pursuant to a Registration Statement (the "Registration Statement") on Form S-8
under the Securities Act of 1933, as amended (the "Act"), of up to 625,167
shares (the "Shares") of common stock, par value $.01 per share, of the Company
(the "Common Stock"), issuable upon the exercise of stock options (the
"Options") granted by the Company to certain of its employees.
We have examined originals, or copies certified or otherwise identified to
our satisfaction, of such documents and corporate and public records as we deem
necessary as a basis for the opinion hereinafter expressed. With respect to such
examination, we have assumed the genuineness of all signatures appearing on all
documents presented to us as originals, and the conformity to the originals of
all documents presented to us as conformed or reproduced copies. Where factual
matters relevant to such opinion were not independently established, we have
relied upon certificates of executive officers and responsible employees and
agents of the Company.
Based upon the foregoing, it is our opinion that the Shares have been duly
and validly authorized and when sold, paid for and issued as contemplated by the
Options, will be duly and validly issued and fully paid and nonassessable.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, we do not thereby concede that
we come within the categories of persons whose consent is required by the Act or
the General Rules and Regulations promulgated thereunder.
Very truly yours,
/s/ TENZER GREENBLATT LLP
TENZER GREENBLATT LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Take-Two Interactive Software, Inc. of our report dated
December 21, 1998 relating to the financial statements which appears in Take-Two
Interactive Software, Inc.'s Annual Report on Form 10-KSB for the year ended
October 31, 1998.
/s/ PricewaterhouseCoopers LLP
New York, New York
October 26, 1999
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Take-Two Interactive Software Inc. of our report dated
February 26, 1998 relating to the financial statements of Jack of All Games,
Inc. which appears in Take-Two Interactive Software, Inc.'s Annual Report on
Form 10-KSB for the year ended October 31, 1998.
/s/ Aronowitz, Chaiken & Hardesty, LLP
Certified Public Accountants
Cincinnati, Ohio
October 26, 1999