Exhibit 10.2


 


EXECUTION VERSION


 


Barclays Bank PLC


5 The North Colonnade


Canary Wharf, London E14 4BB


England


 


c/o Barclays Capital Inc.


as Agent for Barclays Bank
PLC


745 Seventh Ave


New York, NY 10019


 


May 28,
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: 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 Barclays Bank PLC (“Dealer”),
represented by Barclays Capital Inc. (“Agent”),
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.  Dealer is regulated by the
Financial Services Authority.  Dealer is
not a member of the Securities Investor Protection Corporation (“SIPC”).


 


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.


 


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 28, 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

  



 


2

















 


	
  Related
  Exchange(s):

  	
   

  	
  All
  Exchanges

  



 


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”), the lesser of (i) the number of
  Convertible Notes surrendered to Counterparty for conversion on the first day
  of the Relevant Exercise Period, and (ii) the Number of Options as of
  the first day of the Relevant Exercise Period; provided that if there are any other Exercisable Options
  as to which a prior Exercise Period has commenced but no Exercise Date has
  yet occurred which would thereby reduce the Number of Options as of the
  related Exercise Date (such other Exercisable Options, the “Other Exercisable Options”), then solely
  for the purposes of determining the number of Exercisable Options for the
  Relevant Exercise Period, the Number of Options on the first day of the
  Relevant Exercise Period shall be reduced by such Other Exercisable Options.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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.

  



 


3

















 


	
  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 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

  



 


4

















 


	
   

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  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.

  



 


5

















 


	
  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 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

  



 


6

















 


	
   

  	
   

  	
  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 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

  



 


7

















 


	
   

  	
   

  	
  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).

  
	
   

  	
   

  	
   

  
	
  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 Option with 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

  



 


8

















 


	
   

  	
   

  	
  the Conversion Rate
  pursuant to Section 9.04(g) or (h) or Section 9.06 of the
  Supplemental Indenture.

  
	
   

  	
   

  	
   

  
	
  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);

  



 


9

















 


	
   

  	
   

  	
  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 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:


 


Bank:  [      
]


 


10

















 


BIC:  [      
]


Acct:  [      
]


Beneficiary:
[       ]


Ref:   [      
]


 


Account
for delivery of Shares from Dealer:


 


To be provided by 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


 


Barclays Bank PLC


5 The North Colonnade


Canary Wharf, London E14 4BB


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:


 


Barclays Bank PLC


c/o Barclays Capital Inc.


745 Seventh Ave


New York, NY 10019


Attention:  Paul Robinson


Telephone No.:   (+1) 212-526-0111


Facsimile No.:    (+1) 917-522-0458


 


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 “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


 


11
















 


dealing (regardless of whether enforcement is
sought in a proceeding at law or in equity) and 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


 


12

















 


controlling persons (each, an “Indemnified Person”) from and against any
and all losses (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, other than the distribution of the
Convertible Notes.  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 of Dealer and
Counterparty acknowledges to and agrees with the other party hereto and with
the Agent that (i) the Agent is acting as agent for Dealer under the
Transaction pursuant to instructions from such party, (ii) the Agent is
not a principal or party to the Transaction, and may transfer its rights and
obligations with respect to the Transaction, (iii) the Agent shall have no
responsibility, obligation or liability, by way of issuance, guaranty,


 


15

















 


endorsement or
otherwise in any manner with respect to the performance of either party under
the Transaction, (iv) Dealer and the Agent have not given, and
Counterparty is not relying (for purposes of making any investment decision or
otherwise) upon, any statements, opinions or representations (whether written
or oral) of Dealer or the Agent, other than the representations expressly set
forth in this Confirmation or the Agreement, and (v) each party agrees to
proceed solely against the other party, and not the Agent, to collect or
recover any money or securities owed to it in connection with the
Transaction.  Each party hereto
acknowledges and agrees that the Agent is an intended third party beneficiary
hereunder.  Counterparty acknowledges
that the Agent is an affiliate of Dealer. 
Dealer will be acting for its own account in respect of this
Confirmation and the Transaction contemplated hereunder.


 


(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.


 


16

















 


(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 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.


 


17

















 


	
  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 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.

  



 


18

















 


(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 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.


 


19

















 


(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 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 Convertible Notes 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


 


20

















 


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 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.


 


(w)                             Regulatory Provisions. The time of
dealing for the Transaction will be confirmed by Dealer upon written request by
Counterparty.  The Agent will furnish to
Counterparty upon written request a statement as to the source and amount of
any remuneration received or to be received by the Agent in connection with the
Transaction.


 


21

















 


Counterparty hereby agrees to
check this Confirmation and to confirm that the foregoing correctly sets forth
the terms of the Transaction by signing in the space provided below and
returning to Dealer a facsimile of the fully-executed Confirmation to Dealer at
646-758-9319 (Attention: Structured Equity Derivatives
Documentation Group).  Originals shall be provided for your
execution upon your request.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  BARCLAYS CAPITAL Inc., acting solely as

  Agent in connection with this Transaction

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized Signatory

  
	
   

  	
  Name:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted and confirmed

  	
   

  
	
  as of the Trade Date:

  	
   

  
	
   

  	
   

  
	
  Take-Two Interactive Software, Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  
	
  Name: