Registration No.333-
As filed with the Securities and Exchange Commission on September 11, 2002.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
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
of incorporation or organization) No.)
575 Broadway, New York, New York 10012
---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
2002 Stock Option Plan of Take-Two Interactive Software, Inc.
-------------------------------------------------------------
(Full title of the plan)
Kelly Sumner, Chief Executive Officer
Take-Two Interactive Software, Inc.
575 Broadway
New York, New York 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.
Ethan Seer, Esq.
Blank Rome Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Aggregate Aggregate Amount of
Securities to Amount to be Offering Price Offering Registration
be Registered Registered (1) Per Share(2) Price (2) Fee
------------- ------------- ------------ --------- ---------
Common Stock,
par value $.01
per share 3,000,000 shares $23.04 $69,120,000 $6,359.04
(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 2002 Stock Option Plan (the
"2002 Plan").
(2) Calculated solely for the purpose of determining the
registration fee pursuant to Rule 457 under the Securities
Act, based upon (i) as to the outstanding options to purchase
905,000 shares of common stock which options have been issued
under the 2002 Plan, the exercise price of such options and
(ii) as to the 2,095,000 shares of common stock that may be
issued upon the exercise of options available for grant under
the 2002 Plan, upon the average of the high and low sales
price of the common stock as reported on Nasdaq on September
9, 2002.
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.
II-1
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, 2001.
2. Annual Report on Form 10-K/A, dated February 28, 2002, for the fiscal
year ended October 31, 2001.
3. Quarterly Report on Form 10-Q/A, dated April 19, 2002, for the quarter
ended January 31, 2000.
4. Quarterly Report on Form 10-Q/A, dated April 19, 2002, for the quarter
ended April 30, 2000.
5. Quarterly Report on Form 10-Q/A, dated April 19, 2002, for the quarter
ended July 31, 2000.
6. Annual Report on Form 10-K/A, dated April 19, 2002, for the fiscal
year ended October 31, 2000.
7. Quarterly Report on Form 10-Q/A, dated April 19, 2002, for the quarter
ended January 31, 2001.
8. Quarterly Report on Form 10-Q/A, dated April 19, 2002, for the quarter
ended April 30, 2001.
9. Quarterly Report on Form 10-Q/A, dated April 19, 2002, for the quarter
ended July 31, 2001.
10. Quarterly Report on Form 10-Q for the Quarter ended January 31, 2002.
11. Quarterly Report on Form 10-Q for the Quarter ended April 30, 2002.
12. Current Report on Form 8-K filed with the Commission on May 8, 2002.
II-2
13. Definitive Proxy Statement on Schedule 14A filed with the Commission
on May 10, 2002.
14. Current Report on Form 8-K filed with the Commission on June 6, 2002.
15. 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.
16. 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 contained in a document incorporated by reference herein
is modified or superseded for all purposes to the extent that a
statement contained in this Registration Statement or in any other
subsequently filed document which is incorporated by reference
modifies or replaces such statement.
Any 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 documents 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.
II-2
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.
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 of 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.
II-3
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
----------- -----------
5 Opinion of Blank Rome Tenzer Greenblatt LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Blank Rome Tenzer Greenblatt 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:
(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
II-4
(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.
II-5
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.
II-6
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 this 11th day of
September 2002.
TAKE-TWO INTERACTIVE SOFTWARE, INC.
By: /s/ Kelly Sumner
-----------------------
Kelly Sumner,
Chief Executive Officer
Each person whose signature appears below authorizes each of Ryan A.
Brant and Kelly Sumner, 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
--------- ----- ----
/s/ Ryan A. Brant Chairman of the Board September 11, 2002
--------------------------
Ryan A. Brant
/s/ Kelly Sumner Chief Executive Officer and Director September 11, 2002
-------------------------- (Principal Executive Officer)
Kelly Sumner
/s/ Paul Eibeler President and Director September 11, 2002
--------------------------
Paul Eibeler
/s/ Karl H. Winters Chief Financial and Accounting Officer September 11, 2002
--------------------------
Karl H. Winters
II-7
/s/ Robert Flug Director September 11, 2002
--------------------------
Robert Flug
/s/ Oliver R. Grace, Jr. Director September 11, 2002
--------------------------
Oliver R. Grace, Jr.
/s/ Todd Emmel Director September 11, 2002
--------------------------
Todd Emmel
/s/ Steven Tisch Director September 11, 2002
--------------------------
Steven Tisch
Director
--------------------------
Mark Lewis
II-8
Exhibit Index
-------------
Exhibit No. Description Page
----------- ----------- ----
5 Opinion of Blank Rome Tenzer Greenblatt LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Blank Rome Tenzer Greenblatt LLP
(included in Exhibit 5)
24.1 Power of Attorney (included on Signature
Page of the Registration Statement)