Exhibit 10.3


 


EXECUTION VERSION


 


JPMorgan Chase Bank, National Association


P.O. Box 161


60 Victoria Embankment


London EC4Y 0JP


England


 


	
   

  	
  May 29,
  2009

  



 


To: Take-Two Interactive
Software, Inc.


622 Broadway


New York, New York


Attention: Treasurer


Telephone No.:   (646)
536-2842


Facsimile No.:    (646) 941-3566


 


Re: Additional Call Option Transaction


 


The purpose of this letter agreement (this “Confirmation”)
is to confirm the terms and conditions of the call option transaction entered
into between JPMorgan Chase Bank, National Association, London Branch (“Dealer”) and  Take-Two
Interactive Software, Inc. (“Counterparty”)
as of the Trade Date specified below (the “Transaction”).  This letter agreement constitutes a “Confirmation”
as referred to in the ISDA Master Agreement specified below.  This Confirmation shall replace any previous
agreements and serve as the final documentation for this Transaction.


 


The definitions and provisions contained in the 2002 ISDA Equity
Derivatives Definitions (the “Equity Definitions”),
as published by the International Swaps and Derivatives Association, Inc.
(“ISDA”) are incorporated into this
Confirmation.  In the event of any
inconsistency between the Equity Definitions and this Confirmation, this
Confirmation shall govern.  Certain
defined terms used herein have the meanings assigned to them in the Prospectus
dated May 27, 2009, as supplemented by the Prospectus Supplement dated May 28,
2009 (as so supplemented, the “Prospectus”)
relating to the USD 120,000,000 principal amount of Convertible Senior Notes
due June 1, 2014 (the “Convertible Notes”
and each USD 1,000 principal amount of Convertible Notes, a “Convertible Note”) issued by Counterparty pursuant to the
Indenture to be dated June 3, 2009 (the “Base
Indenture”), as supplemented by a Supplemental Indenture thereto
(the “Supplemental Indenture”) to be dated June 3,
2009, between Counterparty and The Bank of New York Mellon, as trustee (the
Base Indenture as so supplemented, the “Indenture”).  In the event of any inconsistency between the
terms defined in the Prospectus, the Indenture and this Confirmation, this
Confirmation shall govern. The parties acknowledge that this Confirmation is
entered into on the date hereof with the understanding that (i) definitions
set forth in the Indenture which are also defined herein by reference to the
Indenture and (ii) sections of the Indenture that are referred to herein
will conform to the descriptions thereof in the Prospectus.  If any such definitions in the Indenture or
any such sections of the Indenture differ from the descriptions thereof in the
Prospectus, the descriptions thereof in the Prospectus will govern for purposes
of this Confirmation.  The parties
further acknowledge that the Indenture section numbers used herein are based on
the draft of the Indenture last reviewed by Dealer as of the date of this
Confirmation, and if any such section numbers are changed in the Indenture as
executed, the parties will amend this Confirmation in good faith to preserve
the intent of the parties.  For the
avoidance of doubt, references to the Indenture herein are references to the
Indenture as in effect on the date of its execution and if the Indenture is
amended following its execution, any such amendment will be disregarded for
purposes of this Confirmation unless the parties agree otherwise in writing.


 


Each party is hereby advised, and each such party acknowledges, that
the other party has engaged in, or refrained from engaging in, substantial
financial transactions and has taken other material actions in reliance upon
the parties’ entry into the Transaction to which this Confirmation relates on
the terms and conditions set forth below.


 


JPMorgan Chase Bank, National Association 

Organised under the laws of the United States as a National Banking Association

Main Office 1111 Polaris Parkway, Columbus, Ohio 43271

Registered as a branch in England & Wales branch No. BR000746 

Registered Branch Office 125 London Wall, London EC2Y 5AJ



















 


1.                                       This
Confirmation evidences a complete and binding agreement between Dealer and
Counterparty as to the terms of the Transaction to which this Confirmation
relates.  This Confirmation shall
supplement, form a part of, and be subject to an agreement in the form of the
2002 ISDA Master Agreement (the “Agreement”) as
if Dealer and Counterparty had executed an agreement in such form (but without
any Schedule except for (i) the election of the laws of the State of New
York as the governing law (without
reference to choice of law doctrine) and (ii) the election that Section 5(a)(v) of
the Agreement shall not apply to either party) on the Trade Date.  In the event of any inconsistency between
provisions of the Agreement and this Confirmation, this Confirmation will
prevail for the purpose of the Transaction to which this Confirmation
relates.  The parties hereby agree that
no Transaction other than the Transaction to which this Confirmation relates
shall be governed by the Agreement.


 


2.                                       The
terms of the particular Transaction to which this Confirmation relates are as
follows:


 


General Terms:


 


	
  Trade Date:

  	
   

  	
  May 29, 2009

  	 

	
   

  	
   

  	
   

  	 

	
  Effective Date:

  	
   

  	
  The third Exchange Business Day immediately prior to the Premium
  Payment Date

  	 

	
   

  	
   

  	
   

  	 

	
  Option Style:

  	
   

  	
  “Modified American”, as described under “Procedures for Exercise”
  below

  	 

	
   

  	
   

  	
   

  	 

	
  Option Type:

  	
   

  	
  Call

  	 

	
   

  	
   

  	
   

  	 

	
  Buyer:

  	
   

  	
  Counterparty

  	 

	
   

  	
   

  	
   

  	 

	
  Seller:

  	
   

  	
  Dealer

  	 

	
   

  	
   

  	
   

  	 

	
  Shares:

  	
   

  	
  The common stock of Counterparty, par value USD 0.01 per Share
  (Exchange symbol “TTWO”)

  	 

	
   

  	
   

  	
   

  	 

	
  Number of
  Options:

  	
   

  	
  [      ].
  For the avoidance of doubt, the Number of Options shall be reduced by any
  Options exercised by Counterparty. In no event will the Number of Options be
  less than zero.

  	 

	
   

  	
   

  	
   

  	 

	
  Applicable
  Percentage:

  	
   

  	
  [      ]%

  	 

	
   

  	
   

  	
   

  	 

	
  Option Entitlement:

  	
   

  	
  As of any date, a number equal to the product of the Applicable
  Percentage and the Conversion Rate as of such date (as defined in the
  Supplemental Indenture, but without regard to any adjustments to the
  Conversion Rate pursuant to Section 9.04(g) or (h) or
  Section 9.06 of the Supplemental Indenture and subject to “Method of
  Adjustment” below), for each Convertible Note.

  	 

	
   

  	
   

  	
   

  	 

	
  Strike Price:

  	
   

  	
  USD 10.6750

  	 

	
   

  	
   

  	
   

  	 

	
  Premium:

  	
   

  	
  USD [      ]

  	 

	
   

  	
   

  	
   

  	 

	
  Premium
  Payment Date:

  	
   

  	
  June 3,
  2009

  	 

	
   

  	
   

  	
   

  	 

	
  Exchange:

  	
   

  	
  The NASDAQ
  Global Select Market

  	 

	
   

  	
   

  	
   

  	 

	
  Related Exchange(s):

  	
   

  	
  All Exchanges

  



 


2

















 


Procedures for Exercise:


 


	
  Exercise
  Period(s):

  	
   

  	
  Notwithstanding
  anything to the contrary in the Equity Definitions, an Exercise Period shall
  occur with respect to an Option hereunder only if such Option is an
  Exercisable Option (as defined below) and the Exercise Period shall be, in
  respect of any Exercisable Option, the period commencing on, and including,
  the relevant Conversion Date and ending on, and including, the Scheduled
  Valid Day immediately preceding the first day of the relevant Settlement
  Averaging Period in respect of such Conversion Date; provided
  that (i) in respect of Exercisable Options relating to Convertible Notes
  for which the relevant Conversion Date occurs on or after December 1,
  2013, the final day of the Exercise Period shall be the Scheduled Valid Day
  immediately preceding the Expiration Date and (ii) in respect of
  Exercisable Options relating to Convertible Notes for which the relevant
  Conversion Date occurs after the Convertible Notes have been called for redemption
  (including after December 1, 2013) pursuant to Section 10.01 of the
  Supplemental Indenture, the final day of the Exercise Period shall be the
  Scheduled Valid Day immediately preceding the Scheduled Redemption Date (as
  defined below).

  	 

	
   

  	
   

  	
   

  	 

	
  Conversion
  Date:

  	
   

  	
  With respect
  to any conversion of Convertible Notes, the date on which the Holder (as such
  term is defined in the Supplemental Indenture) of such Convertible Notes
  satisfies all of the requirements for conversion thereof as set forth in
  Section 9.02(b) of the Supplemental Indenture.

  	 

	
   

  	
   

  	
   

  	 

	
  Exercisable
  Options:

  	
   

  	
  In respect
  of any Exercise Period (the “Relevant Exercise Period”),
  (i) the number
  of Convertible Notes surrendered
  to Counterparty for conversion on the first day of the Relevant Exercise Period, minus (ii)
  the number of “Exercisable Options,” (as
  defined in the Call Option Transaction Confirmation letter agreement dated
  May 28, 2009 between Dealer and Counterparty (the “Initial
  Call Option Confirmation”)), if any, with an “Exercise Period” (as
  defined in the Initial Call Option Confirmation) that is the same as the
  Relevant Exercise Period; provided that
  if such calculation results in a number of Exercisable Options that is less
  than zero, the number of Exercisable Options for the Relevant Exercise Period
  shall be zero.

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  Notwithstanding
  the foregoing, in no event shall the number of Exercisable Options exceed the
  Number of Options.

  	 

	
   

  	
   

  	
   

  	 

	
  Expiration
  Time:

  	
   

  	
  The
  Valuation Time

  	 

	
   

  	
   

  	
   

  	 

	
  Expiration
  Date:

  	
   

  	
  June 1,
  2014, subject to earlier exercise.

  	 

	
   

  	
   

  	
   

  	 

	
  Multiple
  Exercise:

  	
   

  	
  Applicable,
  as described under Exercisable Options above.

  	 

	
   

  	
   

  	
   

  	 

	
  Automatic
  Exercise:

  	
   

  	
  Applicable;
  and means that in respect of an Exercise Period, a number of Options not
  previously exercised hereunder equal to the number of Exercisable Options
  shall be deemed to be exercised on the final day of such Exercise Period for
  such 

  



 


3

















 


	
   

  	
   

  	
  Exercisable
  Options; provided that such Options shall be
  deemed exercised only to the extent that Counterparty has provided to Dealer
  a Notice of Exercise.

  
	
   

  	
   

  	
   

  
	
  Notice of
  Exercise:

  	
   

  	
  Notwithstanding
  anything to the contrary in the Equity Definitions, in order to exercise any
  Exercisable Options, Counterparty must notify Dealer in writing before
  5:00 p.m. (New York City time) on the Scheduled Valid Day prior to the
  scheduled first day of the Settlement Averaging Period for the Exercisable
  Options being exercised of (i) the number of such Options, (ii) the
  scheduled first day of the Settlement Averaging Period and the scheduled
  Settlement Date, (iii) the Relevant Settlement Method for such
  Exercisable Options, and (iv) if the Relevant Settlement Method for such
  Exercisable Options is not Net Share Settlement, the fixed amount of cash per
  Convertible Note that Counterparty has elected to deliver to holders of the
  related Convertible Notes (the “Specified Cash Amount”),
  together with any representations, acknowledgements and agreements set forth
  under “Settlement Method Election Conditions” below; provided
  that in respect of Exercisable Options relating to Convertible Notes with a
  Conversion Date occurring on or after December 1, 2013, (A) such
  notice may be given on or prior to the second Scheduled Valid Day immediately
  preceding the Expiration Date and need only specify the information required
  in clause (i) above, and (B) if the Relevant Settlement Method for
  such Exercisable Options is not Net Share Settlement, Dealer shall have
  received a separate notice (“Notice of Final
  Settlement Method”) in respect of all such Convertible Notes
  before 5:00 p.m. (New York City time) on or prior to December 1,
  2013 specifying the information required in clauses (iii) and
  (iv) above; provided further
  that in respect of Exercisable Options relating to any Convertible Notes for
  which the relevant Conversion Date occurs after the Convertible Notes have
  been called for redemption (including after December 1, 2013) pursuant
  to Section 10.01 of the Supplemental Indenture, (A) such notice may
  be given on or prior to the second Scheduled Valid Day immediately preceding
  the Scheduled Redemption Date (as defined below) and need only specify the
  information required in clause (i) above and (B) Dealer shall have
  received a Notice of Early Redemption as specified below.

  
	
   

  	
   

  	
   

  
	
  Notice of
  Early Redemption:

  	
   

  	
  In order to
  exercise any Exercisable Options relating to Convertible Notes that have been
  called for redemption pursuant to Section 10.01 of the Supplemental
  Indenture, Counterparty must notify Dealer in writing before 5:00 p.m.
  (New York City time) on the Scheduled Valid Day immediately preceding the
  fifty-fourth (54th) Scheduled Valid Day immediately prior to the
  scheduled redemption date specified by Counterparty for such Convertible
  Notes pursuant to Section 10.01 of the Supplemental Indenture (the “Scheduled Redemption Date”) of (i) the Scheduled
  Redemption Date, (ii) the Relevant Settlement Method for such
  Exercisable Options, and (iii) if the Relevant Settlement Method for
  such Exercisable Options is not Net Share Settlement, the Specified Cash Amount,
  together with any representations, acknowledgements and agreements set forth
  under “Settlement Method Election Conditions” below.

  



 


4

















 


	
  Valuation Time:

  	
   

  	
  At the close of trading of the regular trading session on the
  Exchange; provided that if the principal trading
  session is extended, the Calculation Agent shall determine the Valuation Time
  in its reasonable discretion.

  
	
   

  	
   

  	
   

  
	
  Market Disruption Event:

  	
   

  	
  Section 6.3(a) of the Equity Definitions is hereby replaced
  in its entirety by the following:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “‘Market Disruption Event’ means, in respect of a Share, (i) a
  failure by the primary United States national or regional securities exchange
  or market on which the Shares are listed or admitted to trading to open for
  trading during its regular trading session or (ii) the occurrence or
  existence prior to 1:00 p.m., New York City time, on any Scheduled Valid
  Day for the Shares for more than one half-hour period in the aggregate during
  regular trading hours of any suspension or limitation imposed on trading (by
  reason of movements in price exceeding limits permitted by the relevant stock
  exchange or otherwise) in the Shares or in any options, contracts or future
  contracts relating to the Shares.”

  



 


Settlement Terms:


 


	
  Settlement Method:

  	
   

  	
  For any Exercisable Option, Net Share
  Settlement; provided that the Relevant
  Settlement Method set forth below for such Exercisable Option shall apply,
  but only if the Settlement Method Election Conditions have been satisfied and
  Counterparty shall have notified Dealer of the Relevant Settlement Method in
  the Notice of Exercise, Notice of Final Settlement Method or Notice of Early
  Redemption, as applicable, for such Exercisable Option.

  	 

	
   

  	
   

  	
   

  	 

	
  Relevant Settlement Method:

  	
   

  	
  In respect of any Exercisable Option,
  subject to the Settlement Method Election Conditions:

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  (i)      if Counterparty has
  elected to settle its conversion obligations in respect of the related
  Convertible Note entirely in Shares (together with cash in lieu of fractional
  Shares), then the Relevant Settlement Method for such Exercisable Option
  shall be Net Share Settlement;

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  (ii)     if Counterparty has
  elected to settle its conversion obligations in respect of the related
  Convertible Note in a combination of cash and Shares, then the Relevant
  Settlement Method for such Exercisable Option shall be Combination
  Settlement; and

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  (iii)    if Counterparty has
  elected to settle its conversion obligations in respect of the related
  Convertible Note entirely in cash, then the Relevant Settlement Method for
  such Exercisable Option shall be Cash Settlement.

  	 

	
   

  	
   

  	
   

  	 

	
  Settlement Method Election Conditions:

  	
   

  	
  For any Relevant Settlement Method other
  than Net Share Settlement, such Relevant Settlement Method shall apply only
  if the Notice of Exercise, the Notice of Final Settlement Method or the
  Notice of Early Redemption for such Exercisable Option, as applicable,
  notifying Dealer of the Relevant Settlement Method 

  



 


5

















 


	
   

  	
   

  	
  contains a representation that, on the date
  of such Notice of Exercise, Notice of Final Settlement Method or Notice of
  Early Redemption, as applicable, Counterparty is not in possession of any
  material non-public information with respect to Counterparty or the Shares.

  
	
   

  	
   

  	
   

  
	
  Net Share Settlement:

  	
   

  	
  If Net Share Settlement is applicable to any Exercisable Option
  exercised or deemed exercised hereunder, Dealer will deliver to Counterparty,
  on the relevant Settlement Date for each such Exercisable Option a number of
  Shares (the “Net Share Settlement Amount”)
  equal to the sum, for each Valid Day during the Settlement Averaging Period
  for each such Exercisable Option, of (i) the Daily Option Value for such
  Valid Day, divided by (ii) the
  Relevant Price on such Valid Day, divided by
  (iii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Net Share Settlement
  Amount exceed a number of Shares equal to the product of the Applicable
  Percentage and the excess of (i) the aggregate number of Shares that
  Counterparty is obligated to deliver to the holder of the related Convertible
  Note pursuant to Section 9.03(b) of the Supplemental Indenture,
  over (ii) a number of Shares equal to USD 1,000 divided by
  the Relevant Price on the last Valid Day of the Settlement Averaging Period.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dealer will deliver cash in lieu of any fractional Shares to be
  delivered with respect to any Net Share Settlement Share Amount valued at the
  Relevant Price for the last Valid Day of the Settlement Averaging Period.

  
	
   

  	
   

  	
   

  
	
  Combination Settlement:

  	
   

  	
  If Combination Settlement is applicable to any Exercisable Option
  exercised or deemed exercised hereunder, Dealer will deliver to Counterparty,
  on the relevant Settlement Date for each such Exercisable Option:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (i) an amount of cash (the “Combination Settlement
  Cash Amount”) equal to the sum, for each Valid Day during the
  Settlement Averaging Period for such Exercisable Option, of (A) an
  amount (the “Daily Combination Settlement Cash Amount”)
  equal to the lesser of (1) the product of (x) the Applicable
  Percentage and (y) the Specified Cash Amount minus
  USD 1,000 and (2) the Daily Option Value, divided by
  (B) the number of Valid Days in the Settlement Averaging Period; provided that if the calculation in clause (1) above
  results in a negative number for any Valid Day, the Combination Settlement
  Cash Amount and the Daily Combination Settlement Cash Amount for such Valid
  Day shall each be deemed to be zero; and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii) a number of Shares (the “Combination
  Settlement Share Amount”) equal to the sum, for each Valid Day
  during the Settlement Averaging Period for such Exercisable Option, of
  (A) the Daily Option Value on such Valid Day minus
  Daily Combination Settlement Cash Amount for such Valid Day, divided by (B) the Relevant Price on such Valid Day, divided by (C) the number of Valid Days in the
  Settlement Averaging Period; provided that
  if the calculation in clause (A) above results in a negative number for
  any Valid Day, the Combination

  



 


6

















 


	
   

  	
   

  	
  Settlement Share Amount for such Valid Day shall be deemed to be
  zero.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dealer will deliver cash in lieu of any fractional Shares to be
  delivered with respect to any Combination Settlement Share Amount valued at
  the Relevant Price for the last Valid Day of the Settlement Averaging Period.

  
	
   

  	
   

  	
   

  
	
  Cash Settlement:

  	
   

  	
  If Cash Settlement is applicable to any Exercisable Option exercised
  or deemed exercised hereunder, in lieu of Section 8.1 of the Equity
  Definitions, Dealer will pay to Counterparty, on the relevant Settlement Date
  for each such Exercisable Option, an amount of cash equal to the sum, for
  each Valid Day during the Settlement Averaging Period for such Exercisable
  Option, of (i) the Daily Option Value for such Valid Day, divided by (ii) the number of Valid Days in the
  Settlement Averaging Period.

  
	
   

  	
   

  	
   

  
	
  Daily Option Value:

  	
   

  	
  For any Valid Day, an amount equal to (i) the Option Entitlement
  on such Valid Day multiplied by
  (ii) the Relevant Price on such Valid Day less the
  Strike Price on such Valid Day; provided that
  if the calculation contained in clause (ii) above results in a negative
  number, the Daily Option Value for such Valid Day shall be deemed to be zero.
  In no event will the Daily Option Value be less than zero.

  
	
   

  	
   

  	
   

  
	
  Valid Day:

  	
   

  	
  A day on which (i) there is no Market Disruption Event and
  (ii) trading in the Shares generally occurs on the Exchange or, if the
  Shares are not then listed on the Exchange, on the principal other United
  States national or regional securities exchange on which the Shares are then
  listed or, if the Shares are not then listed on a United States national or
  regional securities exchange, on the principal other market on which the
  Shares are then traded. If the Shares are not so listed or traded, “Valid
  Day” means a Business Day.

  
	
   

  	
   

  	
   

  
	
  Scheduled Valid Day:

  	
   

  	
  A day that is scheduled to be a Valid Day on the principal United
  States national or regional securities exchange or market on which the Shares
  are listed or admitted for trading. If the Shares are not so listed or admitted
  for trading, “Scheduled Valid Day” means a Business Day.

  
	
   

  	
   

  	
   

  
	
  Business Day:

  	
   

  	
  Any day other than a Saturday, a Sunday or a day on which the Federal
  Reserve Bank of New York is authorized or required by law or executive order
  to close or be closed.

  
	
   

  	
   

  	
   

  
	
  Relevant Price:

  	
   

  	
  On any Valid Day, the per Share volume-weighted average price as
  displayed under the heading “Bloomberg VWAP” on Bloomberg page TTWO.UQ
  <equity> AQR (or its equivalent successor page if such
  page is not available) in respect of the period from the scheduled
  opening time of the Exchange to the Scheduled Closing Time of the Exchange on
  such Valid Day (or if such volume-weighted average price is unavailable, the
  market value of one Share on such Valid Day, as determined by the Calculation
  Agent using a volume-weighted method).

  



 


7

















 


	
  Settlement Averaging Period:

  	
   

  	
  For any Exercisable Option and regardless, for the avoidance of
  doubt, of the settlement method elected by Counterparty under the related
  Convertible Note, (i) if Counterparty has, on or prior
  to December 1, 2013, delivered a Notice of Exercise to Dealer with
  respect to such Exercisable Option with  a
  Conversion Date occurring prior to December 1, 2013, the fifty (50) consecutive Valid Days
  commencing on and including the second Scheduled Valid Day following such Conversion Date, or (ii) if
  Counterparty has, on or following December 1,
  2013,
  delivered a Notice of Exercise to Dealer with respect to such Exercisable
  Optionwith  a Conversion Date occurring on or
  following December 1, 2013,
  the fifty (50) consecutive Valid Days commencing on, and including, the
  fifty-second (52nd)
  Scheduled Valid Day immediately prior to the Expiration Date; provided that if Counterparty has at any time delivered a
  Notice of Early Redemption to Dealer (including after December 1, 2013),
  the Settlement Averaging Period for any Exercisable Option shall be the fifty
  (50) consecutive Valid Days commencing on, and including, the fifty-second
  (52nd)
  Scheduled Valid Day immediately prior to the Scheduled Redemption Date,
  regardless, for the avoidance of doubt, of the settlement method elected by
  Counterparty under the related Convertible Note

  
	
   

  	
   

  	
   

  
	
  Settlement Date:

  	
   

  	
  For any Exercisable Option, the third Business Day immediately
  following the final Valid Day of the Settlement Averaging Period for such
  Exercisable Option.

  
	
   

  	
   

  	
   

  
	
  Settlement Currency:

  	
   

  	
  USD

  
	
   

  	
   

  	
   

  
	
  Other Applicable Provisions:

  	
   

  	
  The provisions of Sections 9.1(c), 9.8, 9.9, 9.11, 9.12 and 10.5 of
  the Equity Definitions will be applicable, except that all references in such
  provisions to “Physically-settled” shall be read as references to “Share
  Settled”. “Share Settled” in relation to any Option means that Net Share
  Settlement or Combination Settlement is applicable to that Option.

  
	
   

  	
   

  	
   

  
	
  Representation and Agreement:

  	
   

  	
  Notwithstanding Section 9.11 of the Equity Definitions, the
  parties acknowledge that any Shares delivered to Counterparty shall be, upon
  delivery, subject to restrictions and limitations arising from Counterparty’s
  status as issuer of the Shares under applicable securities laws.

  



 


3. Additional Terms applicable to the
Transaction:


 


	
  Adjustments applicable to the Transaction:

  	
   

  
	
   

  	
   

  
	
  Potential Adjustment Events:

  	
   

  	
  Notwithstanding Section 11.2(e) of the Equity Definitions,
  a “Potential Adjustment Event” means an occurrence of any event or condition,
  as set forth in Section 9.04 of the Supplemental Indenture that would
  result in an adjustment to the Conversion Rate of the Convertible Notes; provided that in no event shall there be any adjustment
  hereunder as a result of an adjustment to the Conversion Rate pursuant to
  Section 9.04(g) or (h) or Section 9.06 of the
  Supplemental Indenture.

  
			



 


8

















 


	
  Method of Adjustment:

  	
   

  	
  Calculation Agent Adjustment, and means that, notwithstanding
  Section 11.2(c) of the Equity Definitions, upon any adjustment to
  the Conversion Rate of the Convertible Notes pursuant to the Supplemental
  Indenture (other than Section 9.04(g) and (h) and
  Section 9.06 of the Supplemental Indenture) or any adjustment pursuant
  to Section 9.05 of the Supplemental Indenture, the Calculation Agent
  will make a corresponding adjustment to any one or more of the Strike Price,
  Number of Options, Option Entitlement and any other variable relevant to the
  exercise, settlement or payment for the Transaction; provided that
  if the Calculation Agent in good faith disagrees with any adjustment to the
  Conversion Rate pursuant to Section 9.04(m) or Section 9.05 of
  the Supplemental Indenture, the Calculation Agent will determine the
  corresponding adjustment to be made to any one or more of the Strike Price,
  Number of Options, Option Entitlement and any other variable relevant to the
  exercise, settlement or payment of the Transaction in a commercially
  reasonable manner.

  



 


Extraordinary Events applicable to the
Transaction:


 


	
  Merger Events:

  	
   

  	
  Applicable; provided that
  notwithstanding Section 12.1(b) of the Equity Definitions, a
  “Merger Event” means the occurrence of any event or condition set forth in
  the definition of “Merger Event” in Section 9.07 of the Supplemental
  Indenture.

  
	
   

  	
   

  	
   

  
	
  Tender Offers:

  	
   

  	
  Applicable; provided that
  notwithstanding Section 12.1(d) of the Equity Definitions, a
  “Tender Offer” means the occurrence of any event or condition set forth in
  Section 9.04(e) of the Supplemental Indenture.

  
	
   

  	
   

  	
   

  
	
  Consequence of Merger Events/ Tender Offers:

  	
   

  	
  Notwithstanding Section 12.2 and Section 12.3 of the Equity
  Definitions, upon the occurrence of a Merger Event or a Tender Offer, the
  Calculation Agent shall make a corresponding adjustment in respect of any
  adjustment under the Supplemental Indenture to any one or more of the nature
  of the Shares, Strike Price, Number of Options, Option Entitlement and any
  other variable relevant to the exercise, settlement or payment for the
  Transaction; provided, however,
  that such adjustment shall be made without regard to any adjustment to the
  Conversion Rate for the issuance of additional shares as set forth in
  Section 9.06 of the Supplemental Indenture; provided
  further that if, with respect to a Merger Event or a Tender Offer,
  (i) the consideration for the Shares includes (or, at the option of a
  holder of Shares, may include) shares of an entity or person not organized
  under the laws of the United States, any State thereof or the District of
  Columbia or (ii) the Counterparty to the Transaction following such
  Merger Event or Tender Offer, will not be the Issuer following such Merger
  Event or Tender Offer, then Cancellation and Payment (Calculation Agent Determination)
  shall apply.

  
	
   

  	
   

  	
   

  
	
  Nationalization, Insolvency or Delisting:

  	
   

  	
  Cancellation and Payment (Calculation Agent
  Determination); provided that,
  in addition to the provisions of Section 12.6(a)(iii) of the Equity
  Definitions, it will also constitute a Delisting if the Exchange is located
  in the United States and the Shares are not

  



 


9

















 


	
   

  	
   

  	
  immediately re-listed, re-traded or re-quoted on any
  of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ
  Global Market (or their respective successors); if the Shares are immediately
  re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The
  NASDAQ Global Select Market or The NASDAQ Global Market (or their respective
  successors), such exchange or quotation system shall thereafter be deemed to
  be the Exchange.

  
	
   

  	
   

  	
   

  
	
  Additional Disruption Events:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Change in Law:

  	
   

  	
  Applicable; provided that Section 12.9(a)(ii)(X) of the
  Equity Definitions is hereby amended by replacing the word “Shares” with the
  phrase “Hedge Positions.”

  
	
   

  	
   

  	
   

  
	
  Failure to Deliver:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Hedging Disruption:

  	
   

  	
  Applicable; provided that Section 12.9(a)(v) of the Equity
  Definitions is hereby modified by inserting the following two phrases at the
  end of such Section:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “For the avoidance of doubt, the term “equity price
  risk” shall be deemed to include, but shall not be limited to, stock price
  and volatility risk. And, for the further avoidance of doubt, any such
  transactions or assets referred to in phrases (A) or (B) above must
  be available on commercially reasonable pricing terms.”

  
	
   

  	
   

  	
   

  
	
  Hedging Party:

  	
   

  	
  Dealer for all
  applicable Additional Disruption Events

  
	
   

  	
   

  	
   

  
	
  Determining Party:

  	
   

  	
  For all
  applicable Extraordinary Events, Dealer

  



 


	
  Non-Reliance:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Agreements and Acknowledgements Regarding Hedging Activities:

  	
   

  	
  

  Applicable

  
	
   

  	
   

  	
   

  
	
  Additional Acknowledgments:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  4.  Calculation Agent:

  	
   

  	
  Dealer

  



 


5.  Account Details:


 


(a)         Account for payments to Counterparty:


 


[     
]


ABA:  [      ]


Acct:   Take-Two Interactive Software Inc.


Acct No.:  [      ]


 


Account for delivery of Shares to Counterparty:


 


To be provided by Counterparty.


 


(b)           Account
for payments to Dealer:


 


[     
]


ABA: 
[      ]


Favour: [     
]


A/C: 
[      ]


 


10

















 


Account for delivery of Shares from Dealer:


 


[     
]


 


6.  Offices:


 


The Office of Counterparty for the Transaction is:  Inapplicable, Counterparty is not a
Multibranch Party.


 


The Office of Dealer for the Transaction is:
London


 


JPMorgan Chase Bank, National Association


London Branch


P.O. Box 161


60 Victoria Embankment


London EC4Y 0JP


England


 


7. Notices: For purposes of this
Confirmation:


 


(a)          Address
for notices or communications to Counterparty:


 


Take-Two Interactive Software, Inc.


622 Broadway


New York, New York


Attention: Treasurer


Telephone No.:  (646) 536-2842


Facsimile No.:     (646) 941-3566


 


(b)         Address for notices or communications
to Dealer:


 


JPMorgan Chase
Bank, National Association


4 New York
Plaza, Floor 18


New York, NY  10004-2413


Attention:  Mariusz Kwasnik


Title:  Operations Analyst


EDG Corporate
Marketing


Telephone No:     (212) 623-7223


Facsimile No:        (212) 623-7719


 


8. 
Representations and Warranties of Counterparty


 


Each of the representations and warranties
made by Counterparty pursuant to the Underwriting Agreement (the “Underwriting Agreement”) dated as of May 28, 2009
between Counterparty and J.P. Morgan Securities Inc. and Barclays Capital Inc.,
as representative of the Underwriters party thereto, on the “Additional Closing
Date” (as defined in the Underwriting Agreement) are true and correct and are
hereby deemed to be repeated to Dealer as if set forth herein.  Counterparty hereby further represents and
warrants to Dealer that:


 


(a)                                   Counterparty
has all necessary corporate power and authority to execute, deliver and perform
its obligations in respect of this Transaction; such execution, delivery and
performance have been duly authorized by all necessary corporate action on
Counterparty’s part; and this Confirmation has been duly and validly executed
and delivered by Counterparty and constitutes its valid and binding obligation,
enforceable against Counterparty in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in
equity) and


 


11
















 


except that rights to indemnification and contribution hereunder may be
limited by federal or state securities laws or public policy relating thereto.


 


(b)                                  Neither the execution
and delivery of this Confirmation nor the incurrence or performance of obligations
of Counterparty hereunder will conflict with or result in a breach of the
certificate of incorporation or by-laws (or any equivalent documents) of
Counterparty, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or agency, or any
agreement or instrument to which Counterparty or any of its subsidiaries is a
party or by which Counterparty or any of its subsidiaries is bound or to which
Counterparty or any of its subsidiaries is subject, or constitute a default
under, or result in the creation of any lien under, any such agreement or
instrument.


 


(c)                                   No consent, approval,
authorization, or order of, or filing with, any governmental agency or body or
any court is required in connection with the execution, delivery or performance
by Counterparty of this Confirmation, except such as have been obtained or made
and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws.


 


(d)                                  Counterparty is not
and will not be required to register as an “investment company” as such term is
defined in the Investment Company Act of 1940, as amended.


 


(e)                                   It is an “eligible contract participant” (as
such term is defined in Section 1a(12) of the Commodity Exchange Act, as
amended (the “CEA”)) because one or more of the
following is true:


 


Counterparty is a corporation,
partnership, proprietorship, organization, trust or other entity and:


 


(A)                                 Counterparty has total assets in excess of USD
10,000,000;


 


(B)                                  the obligations of Counterparty hereunder are
guaranteed, or otherwise supported by a letter of credit or keepwell, support
or other agreement, by an entity of the type described in Section 1a(12)(A)(i) through
(iv), 1a(12)(A)(v)(I), 1a(12)(A)(vii) or 1a(12)(C) of the CEA; or


 


(C)       Counterparty
has a net worth in excess of USD 1,000,000 and has entered into this Agreement
in connection with the conduct of Counterparty’s business or to manage the risk
associated with an asset or liability owned or incurred or reasonably likely to
be owned or incurred by Counterparty in the conduct of Counterparty’s business.


 


(f)                                     Each of it and its
affiliates is not, on the date hereof, in possession of any material non-public
information with respect to Counterparty.


 


9.  Other
Provisions:


 


(a)                                  Opinions.  Counterparty shall deliver to Dealer, on or
prior to the Premium Payment Date, an opinion of counsel, dated as of the
Premium Payment Date, with respect to the matters set forth in Sections 8(a) through
(c) of this Confirmation.  Delivery
of such opinion to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii) of
the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of
the Agreement.


 


(b)                                 Repurchase Notices.  Counterparty shall, on any day on which
Counterparty effects any repurchase of Shares, promptly give Dealer a written
notice of such repurchase (a “Repurchase Notice”)
on such day if following such repurchase, the number of outstanding Shares as
determined on such day is (i) less than 76 million (in the case of the first
such notice) or (ii) thereafter more than 4 million less than the number of
Shares included in the immediately preceding Repurchase Notice.  Counterparty agrees to indemnify and hold
harmless Dealer and its affiliates and their respective officers, directors,
employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and against any
and all losses 


 


12

















 


(including losses relating to Dealer’s hedging activities as a
consequence of becoming, or of the risk of becoming, a Section 16 “insider”,
including without limitation, any forbearance from hedging activities or
cessation of hedging activities and any losses in connection therewith with
respect to this Transaction), claims, damages, judgments, liabilities and
expenses (including reasonable attorney’s fees), joint or several, which an
Indemnified Person may become subject to, as a result of Counterparty’s failure
to provide Dealer with a Repurchase Notice on the day and in the manner
specified in this paragraph, and to reimburse, within 30 days, upon written
request, each of such Indemnified Persons for any reasonable legal or other
expenses incurred in connection with investigating, preparing for, providing
testimony or other evidence in connection with or defending any of the
foregoing.  If any suit, action,
proceeding (including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against the Indemnified Person as a result
of Counterparty’s failure to provide Dealer with a Repurchase Notice in
accordance with this paragraph, such Indemnified Person shall promptly notify
Counterparty in writing, and Counterparty, upon request of the Indemnified
Person, shall retain counsel reasonably satisfactory to the Indemnified Person
to represent the Indemnified Person and any others Counterparty may designate
in such proceeding and shall pay the fees and expenses of such counsel related
to such proceeding.  Counterparty shall
not be liable for any settlement of any proceeding contemplated by this
paragraph that is effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, Counterparty
agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment.  Counterparty shall not, without the prior
written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding contemplated by this paragraph that is in respect of
which any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding on terms reasonably
satisfactory to such Indemnified Person. 
If the indemnification provided for in this paragraph is unavailable to
an Indemnified Person or insufficient in respect of any losses, claims, damages
or liabilities referred to therein, then Counterparty hereunder, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities.  The remedies
provided for in this paragraph (b) are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any Indemnified Party at
law or in equity.  The indemnity and
contribution agreements contained in this paragraph shall remain operative and
in full force and effect regardless of the termination of this Transaction.


 


(c)                                  Regulation
M.  Counterparty is not on
the date hereof engaged in a distribution, as such term is used in Regulation M
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any securities of Counterparty.  Counterparty shall not, until the second
Scheduled Trading Day immediately following the Effective Date, engage in any
such distribution.


 


(d)                                 No
Manipulation. 
Counterparty is not entering into this Transaction to create actual or
apparent trading activity in the Shares (or any security convertible into or
exchangeable for the Shares) or to raise or depress or otherwise manipulate the
price of the Shares (or any security convertible into or exchangeable for the
Shares) or otherwise in violation of the Exchange Act.


 


(e)                                Transfer
or Assignment.  (i) Counterparty
shall have the right to transfer or assign its rights and obligations hereunder
with respect to all, but not less than all, of the Options hereunder (such
Options, the “Transfer Options”); provided that such transfer or assignment shall be subject
to reasonable conditions that Dealer may impose, including but not limited, to
the following conditions:


 


(A)      With
respect to any Transfer Options, Counterparty shall not be released from its
notice and indemnification obligations pursuant to Section 9(b) or
any obligations under Section 9(m) or 9(r) of this Confirmation;


 


13

















 


(B)        Any
Transfer Options shall only be transferred or assigned to a third party that is
a United States person (as defined in the Internal Revenue Code of 1986, as
amended);


 


(C)        Such
transfer or assignment shall be effected on terms, including any reasonable
undertakings by such third party (including, but not limited to, an undertaking
with respect to compliance with applicable securities laws in a manner that, in
the reasonable judgment of Dealer, will not expose Dealer to material risks
under applicable securities laws) and execution of any documentation and
delivery of legal opinions with respect to securities laws and other matters by
such third party and Counterparty, as are requested and reasonably satisfactory
to Dealer;


 


(D)       Dealer
will not, as a result of such transfer and assignment, be required to pay the
transferee on any payment date an amount under Section 2(d)(i)(4) of
the Agreement greater than an amount that Dealer would have been required to
pay to Counterparty in the absence of such transfer and assignment;


 


(E)         An
Event of Default, Potential Event of Default or Termination Event will not
occur as a result of such transfer and assignment;


 


(F)         Without
limiting the generality of clause (B), Counterparty shall cause the transferee
to make such Payee Tax Representations and to provide such tax documentation as
may be reasonably requested by Dealer to permit Dealer to determine that
results described in clauses (D) and (E) will not occur upon or after
such transfer and assignment; and


 


(G)        Counterparty
shall be responsible for all reasonable costs and expenses, including
reasonable counsel fees, incurred by Dealer in connection with such transfer or
assignment.


 


(ii) Dealer may, without Counterparty’s consent, transfer or
assign all or any part of its rights or obligations under the Transaction to
any third party with a rating for its long term, unsecured and unsubordinated
indebtedness equal to or better than the lesser of (x) the credit rating
of Dealer at the time of the transfer and (y) AA- by Standard and Poor’s
Rating Group, Inc. or its successor (“S&P”), or
Aa3 by Moody’s Investor Service, Inc. (“Moody’s”)
or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent
rating or better by a substitute rating agency mutually agreed by Counterparty
and Dealer; provided that such transfer or
assignment shall be subject to the condition that (1) a Tax Event
described in Section 5(b)(iii)(A) or (B) will not occur with respect
to Counterparty due to, and immediately upon, such transfer or assignment and (2) an
Event of Default, Potential Event of Default or Termination Event will not
occur as a result of such transfer or assignment.  Dealer agrees to use its commercially reasonable
efforts to provide prior notice to Counterparty of any transfer or assignment
of Options to a third party pursuant to this Section.  If at any time at which (1) the Section 16
Percentage exceeds 7.5%, (2) the Option Equity Percentage exceeds 14.5%,
or (3) the Share Amount exceeds the Post-Effective Limit (if any applies),
Dealer may, in its reasonable discretion, either (I) effect a transfer or
assignment of Options to a third party in accordance with the conditions
described above such that (1) the Section 16 Percentage will be equal
to or less than 7.5%, (2) the Option Equity Percentage will be equal to or
less than 14.5%, and (3) the Share Amount will be equal to or less than
any such Post-Effective Limit, or (II) designate any Exchange Business Day
as an Early Termination Date with respect to a portion of the Transaction (the
“Terminated Portion”), such that
following such partial termination (1) the Section 16 Percentage will
be equal to or less than 7.5%, (2) the Option Equity Percentage will be
equal to or less than 14.5%, and (3) the Share Amount will be equal to or
less than such Post-Effective Limit.  In
the event that Dealer so designates an Early Termination Date with respect to a
Terminated Portion, a payment shall be made pursuant to Section 6 of the
Agreement as if (1) an Early Termination Date had been designated in
respect of a Transaction having terms identical to this Transaction and a
Number of Options equal to the number of Options underlying the Terminated
Portion, (2) Counterparty shall be the sole Affected Party with respect to
such partial termination and (3) the Terminated Portion shall be the sole
Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) shall
apply to any amount that is payable by Dealer to Counterparty pursuant to this
sentence as if Counterparty was not the Affected Party).  The “Section 16
Percentage” as of any day is the fraction, expressed as a
percentage, (A) the numerator of which is the number of Shares that Dealer
and each person


 


14

















 


subject to aggregation of Shares with Dealer under Section 13 or Section 16
of the Exchange Act and rules promulgated thereunder directly or
indirectly beneficially own (as defined under Section 13 or Section 16
of the Exchange Act and rules promulgated thereunder) and (B) the
denominator of which is the number of Shares outstanding.  The “Option Equity Percentage”
as of any day is the fraction, expressed as a percentage, (A) the
numerator of which is the sum of (x) the product of the Number of Options
and the Option Entitlement and (y) the aggregate number of Shares
underlying any other call option transaction sold by Dealer to Counterparty,
and (B) the denominator of which is the number of Shares outstanding.  The “Share Amount”
as of any day is the number of Shares that Dealer and any person whose
ownership position would be aggregated with that of Dealer (Dealer or any such
person, a “Dealer Person”) under any law, rule, regulation or regulatory order
that for any reason becomes applicable to ownership of Shares after the Trade
Date (“Applicable Laws”), owns,
beneficially owns, constructively owns, controls, holds the power to vote or
otherwise meets a relevant definition of ownership of under the Applicable
Laws, as determined by Dealer in its reasonable discretion. The “Post-Effective Limit” means (x) the minimum number of
Shares that would give rise to reporting or registration obligations or other
requirements (including obtaining prior approval from any person or entity) of
a Dealer Person, or would result in an adverse effect on a Dealer Person, under
the Applicable Laws, as determined by Dealer in its reasonable discretion, minus (y) 1% of the number of Shares
outstanding.


 


(iii) Notwithstanding any other provision in this Confirmation to
the contrary requiring or allowing Dealer to purchase, sell, receive or deliver
any Shares or other securities to or from Counterparty, Dealer may designate
any of its affiliates to purchase, sell, receive or deliver such Shares or
other securities and otherwise to perform Dealer’s obligations in respect of
this Transaction and any such designee may assume such obligations.  Dealer shall be discharged of its obligations
to Counterparty to the extent of any such performance.


 


(f)                                    Staggered Settlement.  If upon advice of counsel with respect to
applicable legal and regulatory requirements, including any requirements
relating to Dealer’s hedging activities hereunder, Dealer reasonably determines
that it would not be practicable or advisable to deliver, or to acquire Shares
to deliver, any or all of the Shares to be delivered by Dealer on the
Settlement Date for the Transaction, Dealer may, by notice to Counterparty on
or prior to any Settlement Date (a “Nominal Settlement Date”),
elect to deliver the Shares on two or more dates (each, a “Staggered
Settlement Date”) as follows:


 


(a)                                in
such notice, Dealer will specify to Counterparty the related Staggered
Settlement Dates (the first of which will be such Nominal Settlement Date and
the last of which will be no later than the twentieth (20th) Exchange Business
Day following such Nominal Settlement Date) and the number of Shares that it
will deliver on each Staggered Settlement Date;


 


(b)                               the
aggregate number of Shares that Dealer will deliver to Counterparty hereunder
on all such Staggered Settlement Dates will equal the number of Shares that
Dealer would otherwise be required to deliver on such Nominal Settlement Date;
and


 


(c)                                  if
the Net Share Settlement terms or the Combination Settlement terms set forth
above were to apply on the Nominal Settlement Date, then the Net Share
Settlement terms or the Combination Settlement terms, as applicable, will apply
on each Staggered Settlement Date, except that the Shares deliverable pursuant
to such terms on the Nominal Settlement Date will be allocated among such
Staggered Settlement Dates as specified by Dealer in the notice referred to in
clause (a) above.


 


(g)                                 Role  of Agent.  Each party agrees and acknowledges that (i) J.P.
Morgan Securities Inc., an affiliate of Dealer (“JPMSI”), has
acted solely as agent and not as principal with respect to this Transaction and
(ii) JPMSI has no obligation or liability, by way of guaranty, endorsement
or otherwise, in any manner in respect of this Transaction (including, if
applicable, in respect of the settlement thereof). Each party agrees it will
look solely to the other party (or any guarantor in 


 


15

















 


respect
thereof) for performance of such other party’s obligations under this
Transaction.


 


(h)                                 Additional Termination Events.


 


(i)  Notwithstanding anything to the contrary in
this Confirmation if an event of default with respect to Counterparty shall
occur under the terms of the Convertible Notes as set forth in Section 6.01
of the Supplemental Indenture or under Section 6.01 of the Base Indenture,
then such event of default shall constitute an Additional Termination Event
applicable to the Transaction and, with respect to such event of default (A) Counterparty
shall be deemed to be the sole Affected Party and the Transaction shall be the
sole Affected Transaction and (B) Dealer shall be the party entitled to
designate an Early Termination Date pursuant to Section 6(b) of the
Agreement.


 


(ii)  Notwithstanding anything to the contrary in this
Confirmation, the giving of any Notice of Exercise in respect of Exercisable
Options that correspond to Convertible Notes converted pursuant to Section 9.01(iv) of
the Supplemental Indenture in connection with a “Make-Whole Fundamental Change”
(as defined in the Supplemental Indenture) shall constitute an Additional
Termination Event as provided in this clause (ii).  Upon receipt of any such notice, Dealer shall
designate an Exchange Business Day as an Early Termination Date with respect to
the portion of this Transaction corresponding to the number of such Exercisable
Options specified in such Notice of Exercise (such number of Options, the “Specified Options”). 
Any payment hereunder with respect to such termination shall be
calculated pursuant to Section 6 of the Agreement as if (A) an Early
Termination Date had been designated in respect of a Transaction having terms
identical to this Transaction and a Number of Options equal to the number of
Specified Options, (B) Counterparty shall be the sole Affected Party with
respect to such Additional Termination Event, (C) the terminated portion
of the Transaction shall be the sole Affected Transaction and (D) for the
avoidance of doubt, in determining the amount payable pursuant to Section 6
of the Agreement, the Calculation Agent, acting in a commercially reasonable
manner, shall not take into account any adjustments to the Option Entitlement
that result from corresponding adjustments to the Conversion Rate pursuant to Section 9.06
of the Supplemental Indenture; provided that
the amount of cash deliverable in respect of such early termination by Dealer
to Counterparty shall not be greater than the product of (x) the
Applicable Percentage and (y) the excess of (I) (1) the number
of Specified Options multiplied by (2) the
Conversion Rate (after taking into account any applicable adjustments to the
Conversion Rate pursuant to Section 9.06 of the Supplemental Indenture) multiplied by (3) a price per Share determined by the
Calculation Agent over (II) the aggregate principal amount of the
corresponding Convertible Notes, as determined by the Calculation Agent in a
commercially reasonable manner.


 


(i)                                     Amendments to Equity Definitions.  (i) Section 12.6(a)(ii) of
the Equity Definitions is hereby amended by (1) deleting from the fourth
line thereof the word “or” after the word “official” and inserting a comma
therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof
and inserting the following words therefor “or (C) at Dealer’s option, the occurrence of any of the events specified in Section 5(a)(vii)(1) through
(9) of the ISDA Master Agreement with respect to that Issuer.”


 


(ii) Section 12.9(b)(i) of the Equity Definitions is
hereby amended by (1) replacing “either party may elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice
to Counterparty” in the first sentence of such section.


 


(j)                                     No Collateral; Setoff.  Notwithstanding any provision of the
Agreement or any other agreement between the parties to the contrary, the
obligations of Dealer and Counterparty hereunder are not secured by any
collateral.  Obligations of Counterparty
hereunder shall not be set off by Counterparty against any obligations of
Dealer, whether arising under the Agreement, this Confirmation, under any other
agreement between the parties hereto, by operation of law or otherwise.  In addition to and without limiting any
rights of set-off that a party hereto may have as a matter of law, pursuant to
contract or otherwise, upon the occurrence of an Early Termination Date, Dealer
(and only Dealer)  shall have the right to set off any obligation that it
may have to 


 


16

















 


Counterparty under this Confirmation, including without limitation any
obligation to make any payment of cash or delivery of Shares to Counterparty,
against any obligation Counterparty may have to Dealer under any other
agreement between Dealer and Counterparty relating to Shares (each such contract
or agreement, a “Separate Agreement”),
including without limitation any obligation to make a payment of cash or a
delivery of Shares or any other property or securities. For this purpose,
Dealer shall be entitled to convert any obligation (or the relevant portion of
such obligation) denominated in one currency into another currency at the rate
of exchange at which it would be able to purchase the relevant amount of such
currency, and to convert any obligation to deliver any non-cash property into
an obligation to deliver cash in an amount calculated by reference to the
market value of such property as of the Early Termination Date, as determined
by the Calculation Agent in its sole discretion; provided that in the case of a set-off of any obligation to
release or deliver assets against any right to receive fungible assets, such
obligation and right shall be set off in kind and; provided further that in determining the value of any
obligation to deliver Shares, the value at any time of such obligation shall be
determined by reference to the market value of the Shares at such time, as
determined in good faith by the Calculation Agent.  If an obligation is unascertained at the time
of any such set-off, the Calculation Agent may in good faith estimate the amount
or value of such obligation, in which case set-off will be effected in respect
of that estimate, and the relevant party shall account to the other party at
the time such obligation or right is ascertained. For the avoidance of doubt
and notwithstanding anything to the contrary provided in this Section 9(j),
in the event of bankruptcy or liquidation of either Counterparty or Dealer
neither party shall have the right to set off any obligation that it may have
to the other party under this Transaction against any obligation such other
party may have to it, whether arising under the Agreement, this Confirmation or
any other agreement between the parties hereto, by operation of law or
otherwise.


 


(k)                                  Alternative Calculations and Payment on Early
Termination and on Certain  Extraordinary
Events.  If in respect of this Transaction, an amount is
payable by Dealer to Counterparty (i) pursuant
to Section 12.7 or Section 12.9 of the Equity Definitions or (ii) pursuant
to Section 6(d)(ii) of the Agreement (a “Payment Obligation”),
Counterparty may request Dealer to
satisfy any such Payment Obligation by the Share Termination Alternative (as
defined below) (except that Counterparty shall not make such an election in the
event of a Nationalization, Insolvency, Merger Event or Tender Offer, in each
case, in which the consideration to be paid to holders of Shares consists
solely of cash, or an Event of Default in which Counterparty is the Defaulting
Party or a Termination Event in which Counterparty is the Affected Party, other
than an Event of Default of the type described in Section 5(a)(iii), (v),
(vi), (vii) or (viii) of the Agreement or a Termination Event of the
type described in Section 5(b) of the Agreement in each case that
resulted from an event or events outside Counterparty’s control) and shall give
irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than
12:00 p.m. New York local time on the Merger Date, the Tender Offer Date,
the Announcement Date (in the case of Nationalization, Insolvency or
Delisting), the Early Termination Date or date of cancellation, as applicable; provided that if Counterparty does not validly request Dealer to satisfy its Payment Obligation by the Share
Termination Alternative, Dealer shall
have the right, in its sole discretion, to satisfy its Payment Obligation by
the Share Termination Alternative, notwithstanding Counterparty’s election to
the contrary.  In calculating any amounts
under Section 6(e) of the Agreement, notwithstanding anything to the
contrary in the Agreement, (1) separate amounts shall be calculated as set
forth in Section 6(e) with respect to (i) this Transaction and (ii) all
other Transactions, and (2) such separate amounts shall be payable
pursuant to Section 6(d)(ii) of the Agreement.


 


	
  Share
  Termination Alternative:

  	
   

  	
  Applicable and means that Dealer shall deliver to Counterparty the
  Share Termination Delivery Property on, or within a commercially reasonable period
  of time after, the date when the Payment Obligation would otherwise be due
  pursuant to Section 12.7 or 12.9 of the Equity Definitions or
  Section 6(d)(ii) and 6(e) of the Agreement, as

  



 


17

















 


	
   

  	
   

  	
  applicable (the “Share Termination
  Payment Date”), in satisfaction of the Payment Obligation in the
  manner reasonably requested by Counterparty free of payment.

  
	
   

  	
   

  	
   

  
	
  Share
  Termination Delivery Property:

  	
   

  	
  A number of Share Termination Delivery Units, as calculated by the
  Calculation Agent, equal to the Payment Obligation divided by the Share
  Termination Unit Price. The Calculation Agent shall adjust the Share
  Termination Delivery Property by replacing any fractional portion of a
  security therein with an amount of cash equal to the value of such fractional
  security based on the values used to calculate the Share Termination Unit
  Price.

  
	
   

  	
   

  	
   

  
	
  Share
  Termination Unit Price:

  	
   

  	
  The value to Dealer of property contained in one Share Termination
  Delivery Unit, as determined by the Calculation Agent in its discretion by
  commercially reasonable means and notified by the Calculation Agent to Dealer
  at the time of notification of the Payment Obligation. For the avoidance of doubt, the parties agree that in determining the
  Share Termination Delivery Unit Price the Calculation Agent may consider the
  purchase price paid in connection with the purchase of Share Termination
  Delivery Property.

  
	
   

  	
   

  	
   

  
	
  Share
  Termination Delivery Unit:

  	
   

  	
  One Share or, if a Merger Event has occurred and a corresponding
  adjustment to this Transaction has been made, a unit consisting of the number
  or amount of each type of property received by a holder of one Share (without
  consideration of any requirement to pay cash or other consideration in lieu
  of fractional amounts of any securities) in such Merger Event, as determined by
  the Calculation Agent.

  
	
   

  	
   

  	
   

  
	
  Failure
  to Deliver:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Other
  applicable provisions:

  	
   

  	
  If Share Termination Alternative is applicable, the provisions of
  Sections 9.8, 9.9, 9.11, 9.12 and 10.5 (as modified above) of the Equity
  Definitions will be applicable, except that all references in such provisions
  to “Physically-settled” shall be read as references to “Share Termination
  Settled” and all references to “Shares” shall be read as references to “Share
  Termination Delivery Units”. “Share Termination Settled” in relation to this
  Transaction means that Share Termination Alternative is applicable to this
  Transaction.

  



 


(l)                                     Waiver of Jury Trial.  Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in
respect of any suit, action or proceeding relating to this Transaction.  Each party (i) certifies that no
representative, agent or attorney of either party has represented, expressly or
otherwise, that such other party would not, in the event of such a suit, action
or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges
that it and the 


 


18

















 


other party have been induced to enter into this Transaction, as
applicable, by, among other things, the mutual waivers and certifications
provided herein.


 


(m)                               Registration.  Counterparty hereby agrees that if, in the
good faith reasonable judgment of Dealer, (A) the Shares acquired by
Dealer for the purpose of hedging its obligations pursuant to this Transaction
(the “Hedge Shares”) or (B) any Early
Unwind Shares delivered to Dealer pursuant to Section 9(t) (any such
Hedge Shares or Early Unwind Shares, “Restricted Shares”)
cannot be sold in the public market by Dealer without registration under the
Securities Act, Counterparty shall, at its election, either (i) in order
to allow Dealer to sell the Restricted Shares in a registered offering, make
available to Dealer an effective registration statement under the Securities
Act and enter into an agreement, in form and substance satisfactory to Dealer,
substantially in the form of an underwriting agreement for a registered
secondary offering; provided, however, that if Dealer, in its sole reasonable discretion,
is not satisfied with access to due diligence materials, the results of its due
diligence investigation, or the procedures and documentation for the registered
offering referred to above, then clause (ii) or clause (iii) of this
paragraph shall apply at the election of Counterparty, (ii) in order to
allow Dealer to sell the Restricted Shares in a private placement, enter into a
private placement agreement substantially similar to private placement purchase
agreements customary for private placements of equity securities for an
issuance of a similar size, in form and substance satisfactory to Dealer (in
which case, the Calculation Agent shall make any adjustments to the terms of
this Transaction that are necessary, in its reasonable judgment, to compensate
Dealer for any discount from the public market price of the Shares incurred on
the sale of Restricted Shares in a private placement for  issuance of a similar size), or (iii) purchase
the Restricted Shares from Dealer at the Reference Price on such Exchange
Business Days, and in the amounts, requested by Dealer.


 


(n)                                 Tax
Disclosure.  Effective
from the date of commencement of discussions concerning the Transaction,
Counterparty and each of its employees, representatives, or other agents may
disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the Transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to Counterparty
relating to such tax treatment and tax structure.


 


(o)                                 Right to
Extend.  Dealer may postpone,
in whole or in part, any Settlement Date or any other date of valuation or
delivery by Dealer or add additional Settlement Dates or any other date of
valuation or delivery, with respect to some or all of the Options hereunder, if
Dealer reasonably determines, in its commercially reasonable discretion, that
such extension is reasonably necessary or appropriate to preserve Dealer’s
hedging or hedge unwind activity hereunder in light of existing liquidity
conditions or to enable Dealer to effect purchases of Shares in connection with
its hedging, hedge unwind or settlement activity hereunder in a manner that
would, if Dealer were Counterparty or an affiliated purchaser of Counterparty,
be in compliance with applicable legal, regulatory or self-regulatory requirements,
or with related policies and procedures applicable to Dealer.


 


(p)                                 Status of Claims in Bankruptcy.   Dealer acknowledges and agrees that
this Confirmation is not intended to convey to Dealer rights against
Counterparty with respect to the Transaction that are senior to the claims of
common stockholders of Counterparty in any United States bankruptcy proceedings
of Counterparty; provided that
nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue
remedies in the event of a breach by Counterparty of its obligations and
agreements with respect to the Transaction; provided, further, that
nothing herein shall limit or shall be deemed to limit Dealer’s rights in
respect of any transactions other than the Transaction.


 


(q)                                 Securities
Contract; Swap Agreement.  The parties hereto intend for: (a) the
Transaction to be a “securities contract” and a “swap agreement” as defined in
the Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”), and the parties hereto to be entitled to
the protections afforded by, among other Sections, Sections 362(b)(6),
362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code; (b) a
party’s right to liquidate the Transaction and to exercise any other remedies
upon the occurrence of any Event of Default under the Agreement with respect 


 


19

















 


to the other party to constitute a
“contractual right” as described in the Bankruptcy Code; and (c) each
payment and delivery of cash, securities or other property hereunder to
constitute a “margin payment” or “settlement payment” and a “transfer” as
defined in the Bankruptcy Code.


 


(r)                                    Notice of Merger
Consideration. Counterparty
covenants and agrees that, as promptly as practicable following the public
announcement of any consolidation, merger and binding share exchange to which
Counterparty is a party, or any sale of all or substantially all of
Counterparty’s assets, in each case pursuant to which the Shares will be
converted into cash, securities or other property, Counterparty shall notify
Dealer in writing of the types and amounts of consideration that holders of
Shares have elected to receive upon consummation of such transaction or event
(the date of such notification, the “Consideration Notification
Date”); provided that
in no event shall the Consideration Notification Date be later than the date on
which such transaction or event is consummated.


 


(s)                                  Receipt or Delivery of Cash. For the avoidance of doubt, other
than payment of the Premium by Counterparty, nothing in this Confirmation shall
be interpreted as requiring Counterparty to cash settle this Transaction,
except in circumstances where such cash settlement is within Counterparty’s
control (including, without limitation, where Counterparty elects to receive or
deliver cash, or where Counterparty fails timely to elect the Share Termination
Alternative) or in those circumstances in which holders of the Shares would
also receive cash.


 


(t)                                    Early Unwind. (i) In the event the sale of the “Option Securities” (as
defined in the Underwriting Agreement) is not consummated with the Underwriters
for any reason, or if Counterparty fails to deliver to Dealer opinions of
counsel as required pursuant to Section 9(a), in each case by the close of
business in New York on the Premium Payment Date, or such later date as agreed
upon by the parties (the Premium Payment Date or such later date the “Early
Unwind Date”),  the
Transaction shall automatically terminate (the “Early Unwind”),  on the Early Unwind Date and (i) the
Transaction and all of the respective rights and obligations of Dealer and
Counterparty under the Transaction shall be cancelled and terminated and (ii) each
party shall be released and discharged by the other party from and agrees not
to make any claim against the other party with respect to any obligations or
liabilities of the other party arising out of and to be performed in connection
with the Transaction either prior to or after the Early Unwind Date; provided that Counterparty shall reimburse
Dealer for any costs or expenses (including market losses) relating to the
unwinding of its hedging activities in connection with the Transaction
(including any loss or cost incurred as a result of terminating, liquidating,
obtaining or reestablishing any hedge or related trading position of Dealer or
one or more of its affiliates in connection with the Transaction). The amount
of any such reimbursement shall be determined by Dealer in its sole good faith
discretion. Dealer shall notify Counterparty of such amount and Counterparty
shall pay such amount in immediately available funds on the Early Unwind
Date.  Each of Dealer and Counterparty
represent and acknowledge to the other that, subject to the proviso included in
this Section, upon an Early Unwind, all obligations with respect to the
Transaction shall be deemed fully and finally discharged.


 


(ii)  If an amount is payable by Counterparty to Dealer pursuant
to Section 9(t)(i) (a “Reimbursement Obligation”),
Counterparty shall have the right, in its sole discretion, to satisfy any such
Reimbursement Obligation by delivering to Dealer, on the Exchange Business Day
immediately following the Early Unwind Date, the Early Unwind Shares (as
defined below) in satisfaction of such Reimbursement Obligation in the manner
reasonably requested by Dealer free of payment. 
The “Early Unwind Shares” shall be a
number of Shares equal to the Reimbursement Obligation otherwise payable under Section 9(t)(i) divided by the value to Dealer per Share on the date such
Shares are to be delivered as Early Unwind Shares (the “Early
Unwind Share Price”), as determined by
the Calculation Agent in its discretion using commercially reasonable means,
together with cash in lieu of any fractional Shares based on the Early Unwind
Share Price.  The Calculation Agent shall
notify Counterparty of  the Early Unwind
Share Price at the time of notification of the Reimbursement Obligation.  If such Early Unwind Shares are Restricted
Shares as set forth in Section 9(m), the Early Unwind Share Price may
reflect, in the 


 


20

















 


Calculation Agent’s judgment, a discount applicable to such Early
Unwind Shares.  If such Early Unwind
Shares are not Restricted Shares as set forth in Section 9(m), the Early
Unwind Price shall be Relevant Price on the Early Unwind Date.  Counterparty shall give irrevocable
telephonic notice, confirmed in writing within one Scheduled Trading Day, to
Dealer of its election to satisfy any Reimbursement Obligation by delivery of
Early Unwind Shares pursuant to this Section no later than 6:00 p.m.
New York local time on the Early Unwind Date.


 


(u)                                 Maximum
Share Delivery. 
Notwithstanding any other provision of this Confirmation or the
Agreement, in no event will Counterparty be required to deliver more than two
times the Number of Shares in the aggregate to Dealer pursuant to Section 9(t).  In the event Counterparty shall not have
delivered the full number of Shares otherwise applicable as a result of the
foregoing sentence (such deficit, the “Deficit Shares”),
Counterparty shall be continually obligated to deliver, from time to time until
the full number of Deficit Shares have been delivered pursuant to this Section,
Shares when, and to the extent, that (i) Shares are repurchased, acquired
or otherwise received by Counterparty or any of its subsidiaries after the
Trade Date (whether or not in exchange for cash, fair value or any other
consideration), (ii) authorized and unissued Shares reserved for issuance
in respect of other transactions prior to such date which prior to the relevant
date become no longer so reserved and (iii) Counterparty additionally
authorizes any unissued Shares that are not reserved for other
transactions.  Counterparty shall
immediately notify Dealer of the occurrence of any of the foregoing events
(including the number of Shares subject to clause (i), (ii) or (iii) and
the corresponding number of Shares to be delivered) and promptly deliver the
Applicable Percentage of the aggregate number of such Shares thereafter.


 


(v)                                 Payment
by Counterparty. In the event that (i) an Early Termination
Date occurs or is designated with respect to the Transaction as a result of a
Termination Event or an Event of Default (other than an Event of Default
arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement)
and, as a result, Counterparty owes to Dealer pursuant to Section 6(d)(ii) of
the Agreement an amount calculated under Section 6(e) of the
Agreement, or (ii) Counterparty owes to Dealer, pursuant to Section 12.7
or Section 12.9 of the Equity Definitions (including, for the avoidance of
doubt, any amount payable in connection with an Extraordinary Event), an amount
calculated under Section 12.8 of the Equity Definitions, such amount shall
be deemed to be zero.


 


21

















 


Please confirm that the foregoing correctly
sets forth the terms of our agreement by executing this Confirmation and
returning it to EDG Confirmation Group, J.P. Morgan Securities Inc., 277 Park
Avenue, 11th Floor, New York, NY 10172-3401, or by fax to (212) 622
8519.


 


	
   

  	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  J.P.
  Morgan Securities Inc., as agent for JPMorgan Chase Bank, National
  Association

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Accepted and confirmed

  	
   

  	
   

  
	
  as of the Trade Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Take-Two Interactive Software, Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
						



 


JPMorgan Chase Bank, National Association 


Organised under the laws of the United States as a National Banking
Association


Main Office 1111 Polaris Parkway, Columbus, Ohio 43271


Registered as a branch in England & Wales branch No. BR000746 


Registered Branch Office 125 London Wall, London EC2Y 5AJ