Zynga (ZNGA) 8-K Entry into a Material Definitive Agreement

Exhibit 2.1

Execution Version

SECOND AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER

THIS SECOND AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER (this “Second Amendment”), dated as of May 4, 2022, is by and among Take-Two Interactive Software, Inc., a Delaware corporation (“Parent”), Zebra MS I, Inc., a Delaware corporation and a direct Wholly Owned Subsidiary of Parent (“Merger Sub 1”), Zebra MS II, Inc., a Delaware corporation and a direct Wholly Owned Subsidiary of Parent (“Merger Sub 2” and, together with Merger Sub 1, the “Merger Subs”), and Zynga Inc., a Delaware corporation (the “Company”).

WHEREAS, Parent, the Company and the Merger Subs entered into that certain Agreement and Plan of Merger, dated as of January 9, 2022 (the “Merger Agreement”);

WHEREAS, Parent, the Company and the Merger Subs entered into that certain First Amendment to the Agreement and Plan of Merger, dated as of March 10, 2022 (the “First Amendment”); and

WHEREAS, Parent, the Company and the Merger Subs wish to amend the Merger Agreement pursuant to Section 9.3 of the Merger Agreement in the manner set forth herein.

WHEREAS, the respective Boards of Directors of Parent, Merger Sub 1, Merger Sub 2 and the Company have each approved and declared advisable this Second Amendment;

NOW THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:

1. Amendments.

(a) Section 1.2 of the Merger Agreement is hereby amended and restated in its entirety as set forth below:

Section 1.2. Closing. Unless this Agreement shall have been terminated pursuant to the provisions of Section 9.1, the closing of the Combination (the “Closing”) will take place on a date agreed by the parties, which date shall be not more than three Business Days after the satisfaction or waiver (subject to applicable Law) of the conditions (other than those conditions that, by their nature, are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by law, waiver of those conditions as of the Closing) set forth in Article VIII (the date of the Closing, the “Closing Date”). The Closing shall be held by means of a virtual closing through electronic exchange of signatures, unless another place is agreed to in writing by the parties hereto.

2. Capitalized Terms. Capitalized terms used and not defined in this Second Amendment shall have the meanings ascribed to such terms in the Merger Agreement.

3. Effect of Amendment. Except as expressly amended and/or superseded by this Second Amendment, the Merger Agreement remains and shall remain in full force and effect. This Second Amendment shall not constitute an amendment or waiver of any provision of the Merger Agreement not expressly amended or waived herein and shall not be construed as an amendment, waiver or consent to any action that would require an amendment, waiver or consent, except as expressly set forth herein. Upon the execution and delivery hereof, the Merger Agreement shall thereupon be deemed to be amended and supplemented as hereinabove set forth as fully and with the same effect as if the amendments and supplements made hereby were originally set forth in the Merger Agreement. This Second Amendment and the Merger Agreement shall each henceforth be read, taken and construed as one and the same instrument, but such amendments and supplements shall not operate so as to render invalid or improper any action heretofore taken under the Merger Agreement. If and to the extent there are any inconsistencies between the Merger Agreement and this Second Amendment with respect to the matters set forth herein, the terms of this Second Amendment shall control. References in the Merger Agreement to the Merger Agreement shall be deemed to mean the Merger Agreement as amended by this Second Amendment. On and after the date of this Second Amendment, each reference to the Merger Agreement, “this Agreement”, “hereof”, “hereunder”, “herein” or words of like import referring to the Merger Agreement shall mean and be a reference to the Merger Agreement as amended hereby, provided that references in the Merger Agreement to “the date hereof” or “the date of this Agreement” or words of like import shall continue to refer to the date of January 9, 2022.

4. Counterparts. This Second Amendment may be executed in counterparts, (including by facsimile or other electronic transmission) each of which shall be deemed an original, but all of which shall constitute the same instrument.

5. Sections of the Merger Agreement. Section 10.3 (Successors and Assigns), Section 10.4 (Governing Law; Jurisdiction; Specific Performance), Section 10.6 (Severability; Construction; Certain Interpretations) and Section 10.8 (Entire Agreement) of the Merger Agreement are each hereby incorporated by reference mutatis mutandis.

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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed as of the date first above written.

TAKE-TWO INTERACTIVE SOFTWARE, INC.
By:	/s/ Matt Breitman
	Name: Matt Breitman
	Title: SVP & GC Americas

ZEBRA MS I, INC.
By:	/s/ Matt Breitman
	Name: Matt Breitman
	Title: Vice President

ZEBRA MS II, INC.
By:	/s/ Matt Breitman
	Name: Matt Breitman
	Title: Vice President

[Signature Page to Second Amendment to the Agreement and Plan of Merger]

ZYNGA INC.
By:	/s/ Frank Gibeau
	Name: Frank Gibeau
	Title: Chief Executive Officer

[Signature Page to Second Amendment to the Agreement and Plan of Merger]