As filed with the Securities and Exchange Commission on September 29, 2023
Registration No. 333-
UNITED STATES
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 of incorporation or organization) | (I.R.S. Employer Identification No.) |
Take-Two Interactive Software, Inc.
110 West 44th Street
New York, New York 10036
(646) 536-2842
(Address of Principal Executive Offices)
AMENDED AND RESTATED
TAKE-TWO INTERACTIVE SOFTWARE, INC. 2017 STOCK INCENTIVE PLAN
(Full title of the plan)
Daniel Emerson, Esq.
Executive Vice President and Chief Legal Officer
Take-Two Interactive Software, Inc.
110 West 44th Street
New York, New York 10036
(646) 536-3001
(Name, address and telephone number,
including area code, of agent for service)
Copy to:
Adam M. Turteltaub, Esq.
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
This registration statement on Form S-8 (this “Registration Statement”) is filed by Take-Two Interactive Software, Inc. (the “Company” or “Registrant”) to register an additional 5,500,000 shares of the Registrant’s common stock, par value $0.01 per share (the “Common Stock”), which may be issued under the Amended and Restated Take-Two Interactive Software, Inc. 2017 Stock Incentive Plan (the “Plan”), which Plan was originally approved by the Registrant’s stockholders on September 15, 2017, was amended effective September 4, 2020, was amended and restated on September 16, 2020, was subsequently amended on July 26, 2021 and May 23, 2022, was amended in its present form on July 24, 2023 and subsequently approved by the Registrant’s stockholders on September 21, 2023 (the “Approval Date”).
Pursuant to the Registration Statement on Form S-8 (Registration No. 333-220895) filed by the Registrant on October 11, 2017 (the “First Registration Statement”), the Registrant previously registered an aggregate of 5,200,000 shares of Common Stock under the Plan (as adjusted to reflect all stock splits and stock dividends to date). Pursuant to the Registration Statement on Form S-8 (Registration No. 333-248629) filed by the Registrant on September 4, 2020 (the “Second Registration Statement”), the Registrant previously registered an aggregate of 50,743 additional shares of Common Stock under the Plan (as adjusted to reflect all stock splits and stock dividends to date). Pursuant to the Registration Statement on Form S-8 (Registration No. 333-249904) filed by Registrant on November 6, 2020 (the “Third Registration Statement”), the Registrant previously registered an aggregate of 2,000,000 additional shares of Common Stock under the Plan (as adjusted to reflect all stock splits and stock dividends to date). Pursuant to the Registration Statement on Form S-8 (Registration No. 333-260773) filed by Registrant on November 4, 2021 (the “Fourth Registration Statement”), the Registrant previously registered an aggregate of 4,300,000 additional shares of Common Stock under the Plan (as adjusted to reflect all stock splits and stock dividends to date). Pursuant to the Registration Statement on Form S-8 (Registration No. 333-265426) filed by Registrant on June 3, 2022 (the “Fifth Registration Statement,” and together with the First Registration Statement, the Second Registration Statement, the Third Registration Statement and the Fourth Registration Statement, collectively, the “Prior Registration Statements”), the Registrant previously registered an aggregate of 15,368,500 additional shares of Common Stock under the Plan (as adjusted to reflect all stock splits and stock dividends to date). The additional shares of Common Stock being registered by this Registration Statement are of the same class as those securities registered on the Prior Registration Statements. The contents of the Prior Registration Statements, together with all exhibits filed therewith or incorporated therein by reference to the extent not otherwise amended or superseded by the contents hereof or otherwise, are incorporated herein by reference in accordance with General Instruction E to Form S-8.
Concurrently with this Registration Statement, the Company is filing a Post-Effective Amendment to the Fifth Registration Statement to deregister 9,123,694 shares of Common Stock registered thereunder in accordance with, and subject to the terms and conditions of, an exception under Rule 5635(c)(3) of the NASDAQ Market Rules and Regulations (“Rule 5635(c)(3)”), in connection with the Company’s acquisition of Zynga Inc., a Delaware corporation (“Zynga”), on May 23, 2022, pursuant to an Agreement and Plan of Merger dated January 9, 2022. On the Approval Date, in addition to approving the increase in the number of shares available for issuance pursuant to the Plan by 5,500,000 shares, the Company’s stockholders approved a reduction in the number of shares reserved under the Plan in connection with the Zynga acquisition from 9,123,694 shares to 0 shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this Registration Statement have been or will be sent or given to participating employees as specified in Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”), in accordance with the rules and regulations of the United States Securities and Exchange Commission (the “Commission”). Such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Certain Documents by Reference. |
The following documents, filed with the Commission by the Company, are incorporated by reference into this Registration Statement:
| (a) | the Company’s Annual Report on Form 10-K for the fiscal year ended March 31, 2023, filed on May 26, 2023, pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”); |
| (b) | the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2023, filed on August 9, 2023, pursuant to the Exchange Act; |
| (c) | the Company’s Current Reports on Form 8-K, filed on April 11, 2023, April 14, 2023, May 3, 2023, May 18, 2023, June 2, 2023, and September 21, 2023, pursuant to the Exchange Act; and |
| (d) | the description of the Company’s Common Stock, which is contained in the Company’s Registration Statement on Form 8-A, filed on March 26, 2008, as updated by Exhibit 4.1 to the Company’s Annual Report on Form 10-K for the fiscal year ended March 31, 2020, including any subsequent amendment or any report filed with the Commission for the purpose of updating such description. |
In addition, all documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all of the securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of the filing of such documents with the Commission; provided, however, that documents or portions thereof which are “furnished” and not “filed” in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement unless the Registrant expressly provides to the contrary that such document is incorporated by reference into this Registration Statement.
Any statement contained in a document incorporated or deemed to be incorporated by 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 document which also is or is deemed to be incorporated by reference herein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement except as so modified or superseded.
| Item 8. | Exhibits. |
The Exhibits to this Registration Statement are listed in the Index to Exhibits and are incorporated herein by reference.
INDEX TO EXHIBITS
Exhibit No. | Description | Incorporated by Reference | ||||||||
| Form | Annex | Filing Date | Filed Herewith | |||||||
| 5.1 | Opinion of Willkie Farr & Gallagher LLP | X | ||||||||
| 23.1 | Consent of Willkie Farr & Gallagher LLP (included in Exhibit 5.1 hereto) | X | ||||||||
| 23.2 | Consent of Ernst & Young LLP, independent registered public accounting firm | X | ||||||||
| 24.1 | Power of Attorney (included on the signature page of this Registration Statement) | X | ||||||||
| 99.1 | Amended and Restated Take-Two Interactive Software, Inc. 2017 Stock Incentive Plan | DEF 14A | B | July 27, 2023 | ||||||
| 107 | Filing Fee Table | X | ||||||||
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all 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 the 29th day of September 2023.
| Take-Two Interactive Software, Inc. |
/s/ Strauss Zelnick |
Strauss Zelnick Chairman and Chief Executive Officer |
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Take-Two Interactive Software, Inc., hereby severally constitute and appoint Karl Slatoff, Daniel Emerson, and Matthew Breitman or any of them individually, our true and lawful attorneys-in-fact with full power of substitution, to sign for us and in our names in the capacities indicated below the Registration Statement and any and all pre-effective and post-effective amendments to the Registration Statement and generally to do all such things in our name and behalf in our capacities as officers and directors to enable the Registrant to comply with the provisions of the Securities Act, and all requirements of the Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys-in-fact to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
Signature | Title | Date | ||
/s/ Strauss Zelnick | Chairman and Chief Executive Officer | September 29, 2023 | ||
| Strauss Zelnick | (Principal Executive Officer) | |||
/s/ Lainie Goldstein | Chief Financial Officer | September 29, 2023 | ||
| Lainie Goldstein | (Principal Financial and Accounting Officer) | |||
/s/ Michael Dornemann | Director | September 29, 2023 | ||
| Michael Dornemann | ||||
/s/ William “Bing” Gordon | Director | September 29, 2023 | ||
| William “Bing” Gordon | ||||
/s/ Roland Hernandez | Director | September 29, 2023 | ||
| Roland Hernandez | ||||
/s/ J Moses | Director | September 29, 2023 | ||
| J Moses | ||||
/s/ Michael Sheresky | Director | September 29, 2023 | ||
| Michael Sheresky | ||||
/s/ Ellen Siminoff | Director | September 29, 2023 | ||
| Ellen Siminoff | ||||
/s/ LaVerne Srinivasan | Lead Independent Director | September 29, 2023 | ||
| LaVerne Srinivasan | ||||
/s/ Susan Tolson | Director | September 29, 2023 | ||
| Susan Tolson | ||||
/s/ Paul Viera | Director | September 29, 2023 | ||
| Paul Viera | ||||
