Exhibit 10.8


 


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 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 Warrants


 


The
purpose of this letter agreement (this “Confirmation”)
is to confirm the terms and conditions of the Warrants issued by Take-Two
Interactive Software, Inc. (“Company”) to
Barclays Bank PLC (“Dealer”),
represented by Barclays Capital Inc. (“Agent”), 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.  This Transaction shall be deemed to be a
Share Option Transaction within the meaning set forth in the Equity
Definitions.


 


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
Company 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 Company 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 that 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 Transaction is a Warrant
Transaction, which shall be considered a Share Option Transaction for purposes
of the Equity Definitions.  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

  
	
   

  	
   

  	
   

  
	
  Warrants:

  	
   

  	
  Equity
  call warrants, each giving the holder the right to purchase one Share at the
  Strike Price, subject to the Settlement Terms set forth below. For the
  purposes of the Equity Definitions, each reference to a Warrant herein shall
  be deemed to be a reference to a Call Option.

  
	
   

  	
   

  	
   

  
	
  Warrant Style:

  	
   

  	
  European

  
	
   

  	
   

  	
   

  
	
  Seller:

  	
   

  	
  Company

  
	
   

  	
   

  	
   

  
	
  Buyer:

  	
   

  	
  Dealer

  
	
   

  	
   

  	
   

  
	
  Shares:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Number of Warrants:

  	
   

  	
  [    ],
  subject to adjustment as provided herein.

  
	
   

  	
   

  	
   

  
	
  Warrant Entitlement:

  	
   

  	
  One Share per Warrant

  
	
   

  	
   

  	
   

  
	
  Strike Price:

  	
   

  	
  USD
  14.9450

  
	
   

  	
   

  	
   

  
	
  Premium:

  	
   

  	
  USD
  [    ]

  
	
   

  	
   

  	
   

  
	
  Premium Payment Date:

  	
   

  	
  June 3, 2009

  
	
   

  	
   

  	
   

  
	
  Exchange:

  	
   

  	
  The NASDAQ Global Select
  Market

  
	
   

  	
   

  	
   

  
	
  Related Exchange(s):

  	
   

  	
  All Exchanges

  
	
   

  	
   

  	
   

  
	
  Procedures
  for Exercise:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Expiration Time:

  	
   

  	
  The
  Valuation Time

  
	
   

  	
   

  	
   

  
	
  Expiration Date(s):

  	
   

  	
  Each
  Scheduled Trading Day during the period from and including the First
  Expiration Date and to and including the 75th Scheduled Trading Day following the First
  Expiration Date shall be an “Expiration Date” for a number of Warrants equal
  to the Daily Number of Warrants on such date; provided that, notwithstanding anything to the contrary in
  the Equity Definitions, if any such date is a Disrupted Day, the Calculation
  Agent shall make adjustments, if applicable, to the Daily Number of Warrants
  or shall reduce such Daily Number of Warrants to zero for which such day
  shall be an Expiration Date and shall designate a Scheduled Trading Day or a
  number of Scheduled Trading Days as the Expiration Date(s) for the remaining
  Daily Number of Warrants or a portion thereof for the originally scheduled
  Expiration Date; and provided  further that if such Expiration Date has not occurred
  pursuant to this clause as of the eighth Scheduled Trading Day following the
  last scheduled 

  



 


2

















 


	
   

  	
   

  	
  Expiration
  Date under this Transaction, the Calculation Agent shall have the right to
  declare such Scheduled Trading Day to be the final Expiration Date and the
  Calculation Agent shall determine its good faith estimate of the fair market
  value for the Shares as of the Valuation Time on that eighth Scheduled
  Trading Day or on any subsequent Scheduled Trading Day, as the Calculation
  Agent shall determine using commercially reasonable means.

  
	
   

  	
   

  	
   

  
	
  First Expiration Date:

  	
   

  	
  August 30, 2014 (or
  if such day is not a Scheduled Trading Day, the next following Scheduled
  Trading Day), subject to Market Disruption Event below.

  
	
   

  	
   

  	
   

  
	
  Daily Number of Warrants:

  	
   

  	
  For any Expiration Date,
  the Number of Warrants that have not expired or been exercised as of such
  day, divided by the remaining number of
  Expiration Dates (including such day), rounded down to the nearest whole
  number, subject to adjustment pursuant to the provisos to “Expiration
  Date(s)”.

  
	
   

  	
   

  	
   

  
	
  Automatic Exercise:

  	
   

  	
  Applicable; and means that
  for each Expiration Date, a number of Warrants equal to the Daily Number of
  Warrants (as adjusted pursuant to the terms hereof) for such Expiration Date
  will be deemed to be automatically exercised.

  
	
   

  	
   

  	
   

  
	
  Market Disruption Event:

  	
   

  	
  Section 6.3(a)(ii) of
  the Equity Definitions is hereby amended by replacing clause (ii) in its
  entirety with “(ii) an Exchange Disruption, or” and inserting
  immediately following clause (iii) the phrase “; in each case that the Calculation
  Agent determines is material.”

  
	
   

  	
   

  	
   

  
	
  Valuation:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Valuation Time:

  	
   

  	
  Scheduled
  Closing Time; provided that if the principal
  trading session is extended, the Calculation Agent shall determine the
  Valuation Time in its reasonable discretion.

  
	
   

  	
   

  	
   

  
	
  Valuation Date:

  	
   

  	
  Each
  Exercise Date.

  
	
   

  	
   

  	
   

  
	
  Settlement
  Terms:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Settlement Method:

  	
   

  	
  Net
  Share Settlement.

  
	
   

  	
   

  	
   

  
	
  Net Share Settlement:

  	
   

  	
  On
  the relevant Settlement Date, Company shall deliver to Dealer the Share
  Delivery Quantity of Shares for such Settlement Date to the account specified
  hereto free of payment through the Clearance System.

  
	
   

  	
   

  	
   

  
	
  Share Delivery Quantity:

  	
   

  	
  For
  any Settlement Date, a number of Shares, as calculated by the Calculation
  Agent, equal to the Net Share Settlement Amount for such Settlement Date divided by the Settlement Price on the Valuation Date in
  respect of such Settlement Date, rounded down to the nearest whole number plus any Fractional Share Amount.

  
	
   

  	
   

  	
   

  
	
  Net Share Settlement Amount:

  	
   

  	
  For
  any Settlement Date, an amount equal to the product of (i) the Number of
  Warrants exercised or deemed exercised on the 

  



 


3

















 


	
   

  	
   

  	
  relevant
  Exercise Date, (ii) the Strike Price
  Differential for such Settlement Date and (iii) the Warrant Entitlement.

  
	
   

  	
   

  	
   

  
	
  Settlement Price:

  	
   

  	
  For
  any Valuation Date, the per Share volume-weighted average price as displayed
  under the heading “Bloomberg VWAP” on Bloomberg page TTWO.UQ
  <equity> AQR (or any successor thereto) in respect of the period from
  the scheduled opening time of the Exchange to the Scheduled Closing Time on
  such Valuation Date (or if such volume-weighted average price is unavailable,
  the market value of one Share on such Valuation Date, as determined by the
  Calculation Agent). Notwithstanding the foregoing, if (i) any
  Expiration Date is a Disrupted Day and (ii) the Calculation Agent
  determines that such Expiration Date shall be an Expiration Date for fewer
  than the Daily Number of Warrants, as described above, then the Settlement
  Price for the relevant Valuation Date shall be the volume-weighted average
  price per Share on such Valuation Date on the Exchange, as determined by the
  Calculation Agent based on such sources as it deems appropriate using a
  volume-weighted methodology, for the portion of such Valuation Date for which
  the Calculation Agent determines there is no Market Disruption Event.

  
	
   

  	
   

  	
   

  
	
  Settlement Date(s):

  	
   

  	
  As
  determined in reference to Section 9.4 of the Equity Definitions,
  subject to Section 9(k)(i) hereof.

  
	
   

  	
   

  	
   

  
	
  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 “Net Share Settled.”
  “Net Share Settled” in relation to any Warrant means that Net Share
  Settlement is applicable to that Warrant.

  
	
   

  	
   

  	
   

  
	
  Representation
  and Agreement:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  3.
  Additional Terms applicable to the Transaction:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Adjustments applicable to the Warrants:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Method of Adjustment:

  	
   

  	
  Calculation
  Agent Adjustment.  For the avoidance of
  doubt, in making any adjustments under the Equity Definitions, the
  Calculation Agent may make adjustments, if any, to any one or more of the
  Strike Price, the Number of Warrants, the Daily Number of Warrants and the
  Warrant Entitlement.  Notwithstanding
  the foregoing, any cash dividends or distributions on the Shares, whether or
  not extraordinary, shall be governed by Section 9(f) of this
  Confirmation in lieu of Article 10 or Section 11.2(c) of the
  Equity Definitions.

  



 


4

















 


	
  Extraordinary
  Events applicable to the Transaction:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  New Shares:

  	
   

  	
  Section 12.1(i) of the Equity Definitions is hereby amended
  (a) by deleting the text in clause (i) thereof in its entirety (including
  the word “and” following clause (i)) and replacing it with the phrase
  “publicly quoted, traded or listed (or whose related depositary receipts are
  publicly quoted, traded or listed) on any of the New York Stock Exchange, The
  NASDAQ Global Select Market or The NASDAQ Global Market (or their respective
  successors)” and (b) by inserting immediately prior to the period the
  phrase “and (iii) of an entity or person organized under the laws of the
  United States, any State thereof or the District of Columbia that also
  becomes Company under the Transaction following such Merger Event or Tender
  Offer”.

  
	
   

  	
   

  	
   

  
	
  Consequence of Merger Events:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Merger Event:

  	
   

  	
  Applicable; provided that if an event
  occurs that constitutes both a Merger Event under Section 12.1(b) of
  the Equity Definitions and an Additional Termination Event under
  Section 9(h)(ii)(B) of this Confirmation, Dealer may elect, in its
  commercially reasonable judgment, whether the provisions of
  Section 12.1(b) of the Equity Definitions or Section 9(h)(ii)(B) will
  apply.

  
	
   

  	
   

  	
   

  
	
  Share-for-Share:

  	
   

  	
  Modified
  Calculation Agent Adjustment

  
	
   

  	
   

  	
   

  
	
  Share-for-Other:

  	
   

  	
  Cancellation
  and Payment (Calculation Agent Determination)

  
	
   

  	
   

  	
   

  
	
  Share-for-Combined:

  	
   

  	
  Cancellation
  and Payment (Calculation Agent Determination); provided
  that Dealer may elect, in its commercially reasonable judgment, Component
  Adjustment (Calculation Agent Determination).

  
	
   

  	
   

  	
   

  
	
  Consequence of Tender Offers:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Tender Offer:

  	
   

  	
  Applicable;
  provided however that if an event
  occurs that constitutes both a Tender Offer under
  Section 12.1(d) of the Equity Definitions and Additional
  Termination Event under Section 9(h)(ii)(A) of this Confirmation,
  Dealer may elect, in its commercially reasonable judgment, whether the
  provisions of Section 12.3 of the Equity Definitions or
  Section 9(h)(ii)(A) will apply.

  
	
   

  	
   

  	
   

  
	
  Share-for-Share:

  	
   

  	
  Modified
  Calculation Agent Adjustment

  
	
   

  	
   

  	
   

  
	
  Share-for-Other:

  	
   

  	
  Modified
  Calculation Agent Adjustment

  
	
   

  	
   

  	
   

  
	
  Share-for-Combined:

  	
   

  	
  Modified
  Calculation Agent Adjustment

  
	
   

  	
   

  	
   

  
	
  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 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 

  



 


5

















 


	
   

  	
   

  	
  Select
  Market or The NASDAQ Global Market (or their respective successors), such
  exchange or quotation system shall thereafter be deemed to be the Exchange.

  
	
   

  	
   

  	
   

  
	
  Announcement Event:

  	
   

  	
  If
  an Announcement Event occurs, the Calculation Agent will determine the
  economic effect of the Announcement Event on the theoretical value of this
  Transaction (including without limitation any change in volatility, expected
  dividends, or liquidity relevant to the Shares or to the Transaction) from
  the Announcement Date to the Valuation Date. If such economic effect is
  material, the Calculation Agent may adjust the terms of this Transaction to
  reflect such economic effect to Dealer. “Announcement Event”
  shall mean the occurrence of the Announcement Date of a Merger Event or
  Tender Offer

  
	
   

  	
   

  	
   

  
	
  Announcement Date:

  	
   

  	
  The
  definition of “Announcement Date” in Section 12.1 of the Equity
  Definitions shall be amended by (i) replacing the words “a firm” with
  the word “any” in the second and fourth lines thereof, (ii) replacing
  the word “leads to the” in the third and the fifth lines thereof with the
  words “, if completed, would lead to a”, (iii) replacing the words “voting
  shares” in the fifth line thereof with the word “Shares”, (iv) inserting
  the words “by any entity” after the word “announcement” in the second and the
  fourth lines thereof, (v) inserting the words “or to explore the
  possibility of engaging in” after the words “engage in” in the second line
  thereto and (vi) inserting the words “or to explore the possibility of
  purchasing or otherwise obtaining” after the word “obtain” in the fourth line
  thereto.

  
	
   

  	
   

  	
   

  
	
  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:

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
   

  
	
  Insolvency Filing:

  	
   

  	
  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.”

  
	
   

  	
   

  	
   

  
	
  Increased Cost of Hedging:

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
   

  
	
  Loss of Stock Borrow:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
         Maximum
  Stock Loan Rate:

  	
   

  	
       [    ]
  bps

  
	
   

  	
   

  	
   

  
	
  Increased Cost of Stock Borrow:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
         Initial
  Stock Loan Rate:

  	
   

  	
       [    ]
  bps

  
	
   

  	
   

  	
   

  
	
  Hedging Party:

  	
   

  	
  Dealer for all
  applicable Additional Disruption Events

  
	
   

  	
   

  	
   

  
	
  Determining Party:

  	
   

  	
  Dealer for all
  applicable Extraordinary Events

  



 


6

















 


	
  Non-Reliance:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Agreements and Acknowledgments

  	
   

  	
   

  
	
  Regarding Hedging Activities:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  Additional Acknowledgments:

  	
   

  	
  Applicable

  
	
   

  	
   

  	
   

  
	
  4.  Calculation Agent:

  	
   

  	
  Dealer

  
	
   

  	
   

  	
   

  
	
  5.  Account Details:

  	
   

  	
   

  



 


(a)           Account for
payments to Company:


 


[       ]


ABA:  [       ]


Acct:   Take-Two
Interactive Software Inc.


Acct No.:  [       ]


 


Account for delivery of Shares from Company:


 


To be
provided by Company.


 


(b)            Account for payments to Dealer:


 


Bank: 
[       ]


BIC: 
[       ]


Acct: 
[       ]


Beneficiary: [       ]


Ref:  
[       ]


 


Account for delivery of
Shares to Dealer:


 


To be provided by Dealer.


 


6.
Offices:


 


The
Office of Company for the Transaction is: 
Inapplicable, Company 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 Company:


Take-Two
Interactive Software, Inc.


622
Broadway


New
York, New York


Attention:
Treasurer


Telephone
No.:  (646) 536-2842


Facsimile
No.:     (646) 941-3566


 


7

















 


(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 Company


 


The
representations and warranties made by Company pursuant to the Underwriting
Agreement (the “Underwriting Agreement”) dated as
of May 28, 2009 between Company 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.  Company hereby further represents and
warrants to Dealer that:


 


(a)            Company 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 Company’s part; and
this Confirmation has been duly and validly executed and delivered by Company
and constitutes its valid and binding obligation, enforceable against Company
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 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 Company hereunder will conflict with or result in a breach of the
certificate of incorporation or by-laws (or any equivalent documents) of
Company, 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 Company or any of its subsidiaries is a party or by which
Company or any of its subsidiaries is bound or to which Company 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 Company 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)           The Shares of Company initially issuable upon exercise of the Warrant by
the net share settlement method (the “Warrant Shares”)
have been reserved for issuance by all required corporate action of
Company.  The Warrant Shares have been
duly authorized and, when delivered against payment therefor (which may include
Net Share Settlement in lieu of cash) and otherwise as contemplated by the
terms of the Warrant following the exercise of the Warrant in accordance with
the terms and conditions of the Warrant, will be validly issued, fully-paid and
non-assessable, and the issuance of the Warrant Shares will not be subject to
any preemptive or similar rights.


 


(e)            Company 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.


 


(f)            Company 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:


 


8

















 


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


 


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


 


(B)           the
obligations of Company 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)           Company has a
net worth in excess of USD 1,000,000 and has entered into this Agreement in
connection with the conduct of Company’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 Company in the conduct of Company’s business.


 


(g)           Company and each of its
affiliates is not, on the date hereof, in possession of any material non-public
information with respect to Company.


 


9.  Other Provisions:


 


(a)            Opinions.  Company 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
(d) 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. 
Company shall, on any day on which Company 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 on such day, subject to any
adjustments provided herein, 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.  Company 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 (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 actually may become subject to, as a
result of Company’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, such
Indemnified Person shall promptly notify Company in writing, and Company, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others Company
may designate in such proceeding and shall pay the fees and expenses of such
counsel related to such proceeding. 
Company shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, Company agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment.  Company shall
not, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding 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 


 


9

















 


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 Company under such paragraph, 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 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any Indemnified Person 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.  Company 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 Company.  Company
shall not, until the second Scheduled Trading Day immediately following the
Effective Date, engage in any such distribution.


 


(d)           No Manipulation. 
Company 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. 
Company may not transfer any of its rights or obligations under this
Transaction without the prior written consent of Dealer. Dealer may, without
Company’s consent, transfer or assign all or any part of its rights or
obligations under this Transaction to any third party. If at any time at which (1) the
Section 16 Percentage exceeds 7.5%, (2) the Warrant Equity Percentage
exceeds 14.5%, or (3) the Share Amount exceeds the Post-Effective Limit
(if any applies), Dealer is unable after using its commercially reasonable efforts
to effect a transfer or assignment of Warrants to a third party on pricing
terms reasonably acceptable to Dealer and within a time period reasonably
acceptable to Dealer such that (1) the Section 16 Percentage will be
equal to or less than 7.5%, (2) the Warrant 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, then Dealer may 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 Warrant 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 Warrants equal to the number of
Warrants underlying the Terminated Portion, (2) Company 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(j) shall apply to any
amount that is payable by Company to Dealer pursuant to this sentence as if
Company 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 subject to
aggregation of Shares with Dealer under Section 13 or Section 16 of
the Exchange Act and rules promulgated thereunder (the “Dealer Group”) 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 “Warrant
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 Warrants and the Warrant Entitlement and (y) and the
aggregate number of Shares underlying any other warrants purchased by Dealer
from Company, 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, 


 


10

















 


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. 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
Company, 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 Company to the extent of any such performance.


 


(f)            Dividends.  If at any time during the period from and including
the Effective Date, to and including the Expiration Date, an ex-dividend date
for a cash dividend occurs with respect to the Shares (an “Ex-Dividend
Date”), then the Calculation Agent will adjust any of the Strike
Price, Number of Warrants and/or Daily
Number of Warrants to preserve the fair value of the Warrants to Dealer
after taking into account such dividend.


 


(g)           Role of
Agent.  Each of Dealer and Company 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, 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 Company 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.  Company
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 Provisions.


 


(i)  Amendments to the
Equity Definitions:


 


(A)          Section 11.2(a) of
the Equity Definitions is hereby amended by deleting the words “a diluting or
concentrative” and replacing them with the words “an”; and adding the phrase
“or Warrants” at the end of the sentence.


 


(B)          Section 11.2(c) of
the Equity Definitions is hereby amended by (x) replacing the words “a
diluting or concentrative” with “an”, (y) adding the phrase “or Warrants”
after the words “the relevant Shares” in the same sentence and (z) deleting
the phrase “(provided that no adjustments will be made to account solely for
changes in volatility, expected dividends, stock loan rate or liquidity
relative to the relevant Shares)” and replacing it with the phrase “(and, for
the avoidance of doubt, adjustments may be made to account solely for changes
in volatility, expected dividends, stock loan rate or liquidity relative to the
relevant Shares).”


 


(C)                               Section 11.2(e)(vii) of
the Equity Definitions is hereby amended by deleting the words “a diluting or
concentrative” and replacing them with the word “a material”; and adding the
phrase “or Warrants” at the end of the sentence.


 


(D)                              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, 


 


11
















 


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.”


 


(E)                                Section 12.9(b)(iv) of
the Equity Definitions is hereby amended by:


 


(x)                            deleting (1) subsection
(A) in its entirety, (2) the phrase “or (B)” following subsection (A) and
(3) the phrase “in each case” in subsection (B); and


 


(y)                          deleting the phrase “neither
the Non-Hedging Party nor the Lending Party lends Shares in the amount of the
Hedging Shares or” in the penultimate sentence.


 


(F)                                Section 12.9(b)(v) of
the Equity Definitions is hereby amended by:


 


(x)                            adding the word “or”
immediately before subsection “(B)” and deleting the comma at the end of
subsection (A); and


 


(y)                          (1) deleting
subsection (C) in its entirety, (2) deleting the word “or”
immediately preceding subsection (C) and (3) deleting the penultimate sentence in its
entirety and replacing it with the sentence “The Hedging Party will determine
the Cancellation Amount payable by one party to the other.”


 


(ii)  Notwithstanding anything to the contrary in this Confirmation,
upon the occurrence of one of the following events, with respect to this
Transaction, (1) Dealer shall have the right to
designate such event an Additional Termination Event and designate an Early
Termination Date pursuant to Section 6(b) of the Agreement, and (2) Company
shall be deemed the sole Affected Party and the Transaction shall be deemed the
sole Affected Transaction:


 


(A)                             A “person” or “group”
within the meaning of Section 13(d) of the Exchange Act, other than
Company, its subsidiaries and its and their employee benefit plans, has become
the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under
the Exchange Act, of the common equity of Company representing more than 50% of
the voting power of such common equity.


 


(B)                               Consummation of (I) any
recapitalization, reclassification or change of the Shares (other than changes
resulting from a subdivision or combination) as a result of which the Shares
would be converted into, or exchanged for, stock, other securities, other
property or assets or (II) any share exchange, consolidation or merger of
Company pursuant to which the Shares will be converted into cash, securities or
other property or any sale, lease or other transfer in one transaction or a
series of transactions of all or substantially all of the consolidated assets
of Company and its subsidiaries, taken as a whole, to any person other than one
of Company’s subsidiaries; provided, however, that a transaction where the holders of all classes
of Company’s common equity immediately prior to such transaction that is a
share exchange, consolidation or merger own, directly or indirectly, more than
50% of all classes of common equity of the continuing or surviving corporation
or transferee or the parent thereof immediately after such event shall not
constitute an Additional Termination Event. 
Notwithstanding the foregoing, any transaction or transactions set forth
in this clause (B) shall not constitute an Additional Termination Event if
at least 90% of the consideration received or to be received by holders of the
Shares, excluding cash payments for fractional Shares, in connection with such
transaction or transactions consists of shares of common stock, American
Depository Receipts or American Depository Shares traded on the New York Stock
Exchange or the NASDAQ Global Market or which will be so traded when issued or
exchanged in connection with such transaction or transactions.


 


12

















 


(C)                               (I) Company or any
of its subsidiary defaults (as principal or as guarantor or other surety) in
the payment of any principal of or premium or make-whole amount or interest on
any debt that is outstanding in an aggregate principal amount of at least
$10,000,000 beyond any period of grace provided with respect thereto (a “Monetary Default”) or (II) Company or any of its
subsidiaries fails to perform or comply with any term of any evidence of any
debt in an aggregate outstanding principal amount of at least $10,000,000 or of
any mortgage, indenture or other agreement relating thereto or any other
condition exists, and as a consequence of such failure or condition such debt
could (including with the giving of notice or passage of time) or has become,
or has been declared, due and payable before its stated maturity or before its
regularly scheduled dates of payment, or (III) as a consequence of the
occurrence or continuation of any event or condition (other than the passage of
time or the right of the holder of debt to convert such debt into cash or cash
and equity interests), (x) Company or any of its subsidiaries has become
obligated to purchase or repay debt before its stated maturity or before its
regularly scheduled dates of payment in an aggregate outstanding principal
amount of at least $10,000,000, or (y) as a result of a Monetary Default,
one or more persons have the right to require Company or any of its
subsidiaries so to purchase or repay such debt.


 


(D)                              Dealer, despite using
commercially reasonable efforts, is unable or reasonably determines that it is
impractical or illegal, to hedge its exposure with respect to this Transaction
in the public market without registration under the Securities Act or as a
result of any legal, regulatory or self-regulatory requirements or related
policies and procedures (whether or not such requirements, policies or procedures
are imposed by law or have been voluntarily adopted by Dealer).


 


(i)                                      No Collateral or Setoff. 
Notwithstanding
any provision of the Agreement or any other agreement between the parties to
the contrary, the obligations of Company hereunder are not secured by any
collateral.  Obligations under this
Transaction shall not be set off by Company against any other obligations of
the parties, whether arising under the Agreement, this Confirmation, under any
other agreement between the parties hereto, by operation of law or
otherwise.  Any provision in the
Agreement with respect to the satisfaction of Company’s payment obligations to
the extent of Dealer’s payment obligations to Company in the same currency and
in the same Transaction (including, without limitation Section 2(c) thereof)
shall not apply to Company and, for the avoidance of doubt, Company shall fully
satisfy such payment obligations notwithstanding any payment obligation to
Company by Dealer in the same currency and in the same Transaction. 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 such Section 6(e) with respect to (a) this
Transaction and (b) all other Transactions, and (2) such separate
amounts shall be payable pursuant to Section 6(d)(ii) of the
Agreement.  For the avoidance of doubt
and notwithstanding anything to the contrary provided in this Section 9(i),
in the event of bankruptcy or liquidation of either Company 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.


 


(j)                                      Alternative Calculations and
Payment on Early Termination and on Certain Extraordinary Events.  If, in respect of this Transaction, an amount is
payable by Company to Dealer, (i) pursuant
to Section 12.7 or Section 12.9 of the Equity Definitions, (ii) pursuant
to Section 6(d)(ii) of the Agreement or (iii) pursuant to Section 9(u) (a
“Payment Obligation”), Company shall
have the right, in its sole discretion, to satisfy any such Payment Obligation
by the Share Termination Alternative (as defined below) (except that Company
shall not make such an election in the event of a Nationalization, Insolvency,
Merger Event or Tender Offer in which the consideration to be paid to holders of
shares consists solely of cash or an Event of Default in which Company is the
Defaulting Party or a Termination Event in which Company 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 Company’s control) and shall give
irrevocable telephonic 


 


13

















 


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, Tender Offer Date,
Announcement Date (in the case of a Nationalization, Insolvency or Delisting),
Early Termination Date or date of cancellation, or no later than 6:00  p.m.
New York local time on the Early Unwind Date, as applicable; provided that if Company does not validly elect to satisfy
its Payment Obligation by the Share
Termination Alternative, Dealer shall have the right to require Company to
satisfy its Payment Obligation by the Share Termination Alternative.  Notwithstanding the foregoing,
Company’s or Dealer’s right to elect satisfaction of a Payment
Obligation in the Share Termination Alternative as set forth in this clause
shall only apply to Transactions under this Confirmation and, notwithstanding
anything to the contrary in the Agreement, (1) separate amounts shall be
calculated with respect to (a) Transactions hereunder and (b) all
other Transactions under the Agreement, and (2) such separate amounts
shall be payable pursuant to Section 6(d)(ii) of the Agreement,
subject to, in the case of clause (a), Company’s Share Termination Alternative
right hereunder.


 


	
  Share Termination Alternative:

  	
   

  	
  If applicable, Company shall deliver to Dealer the
  Share Termination Delivery Property on the date (the “Share
  Termination Payment Date”) on which the Payment Obligation would
  otherwise be due pursuant to Section 12.7 or Section 12.9 of the
  Equity Definitions or Section 6(d)(ii) of the Agreement, or on the
  Exchange Business Day immediately following the date on which the Payment
  Obligation would otherwise be due pursuant to Section 9(u), as
  applicable, subject to paragraph (k)(i) below, in satisfaction, subject
  to paragraph (k)(ii) below, of the Payment Obligation in the manner
  reasonably requested by Dealer 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
  amount of 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 on the date such Share Termination Delivery
  Units are to be delivered as Share Termination Delivery Property, as
  determined by the Calculation Agent in its discretion by commercially
  reasonable means. The Calculation Agent shall notify Company of such Share
  Termination Unit Price at the time of notification of the Payment Obligation.
  In the case of a Private Placement of Share Termination Delivery Units that
  are Restricted Shares (as defined below), as set forth in paragraph
  (k)(i) below, the Share Termination Unit Price shall be determined by the
  discounted price applicable to such Share Termination Delivery Units. In the
  case of a Registration Settlement of Share Termination Delivery Units that
  are Restricted Shares (as defined below) as set forth in paragraph
  (k)(ii) below, the Share Termination Unit Price shall be the 

  



 


14

















 


	
   

  	
   

  	
  Settlement Price on the Merger Date, the Tender
  Offer Date, the Announcement Date (in the
  case of a Nationalization, Insolvency or Delisting), the date of
  cancellation, the Early Termination Date or the Early Unwind Date, as
  applicable.

  
	
   

  	
   

  	
   

  
	
  Share Termination Delivery Unit:

  	
   

  	
  In the case of a Termination Event, Event of Default
  Additional Disruption Event or Delisting, one Share or, in the case of
  Nationalization, Insolvency, Tender Offer or Merger Event, 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
  Nationalization, Insolvency, Tender Offer or Merger Event. If such
  Nationalization, Insolvency, Tender Offer or Merger Event involves a choice
  of consideration to be received by holders, such holder shall be deemed to
  have elected to receive the maximum possible amount of cash.

  
	
   

  	
   

  	
   

  
	
  Failure to Deliver:

  	
   

  	
  Inapplicable

  
	
   

  	
   

  	
   

  
	
  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.

  



 


(k)                                   Registration/Private Placement
Procedures.  If, in the reasonable opinion of Dealer,
following any delivery of Shares or Share Termination Delivery Property to
Dealer hereunder, such Shares or Share Termination Delivery Property would be
in the hands of Dealer subject to any applicable restrictions with respect to
any registration or qualification requirement or prospectus delivery
requirement for such Shares or Share Termination Delivery Property pursuant to
any applicable federal or state securities law (including, without limitation,
any such requirement arising under Section 5 of the Securities Act as a
result of such Shares or Share Termination Delivery Property being “restricted
securities”, as such term is defined in Rule 144 under the Securities Act,
or as a result of the sale of such Shares or Share Termination Delivery
Property being subject to paragraph (c) of Rule 145 under the
Securities Act) (such Shares or Share Termination Delivery Property, “Restricted Shares”), then delivery of such Restricted Shares
shall be effected pursuant to either clause (i) or (ii) below at the
election of Company, unless Dealer waives the need for registration/private
placement procedures set forth in (i) and (ii) below.  Notwithstanding the foregoing, solely in
respect of any Daily Number of Warrants exercised or deemed exercised on any
Expiration Date, Company shall elect, prior to the first Settlement Date for
the first Expiration Date, a Private Placement Settlement or Registration
Settlement for all deliveries of Restricted Shares for all such Expiration
Dates which election shall be applicable to all Settlement Dates for such Warrants
and the procedures in clause (i) or clause (ii) below shall apply for
all such delivered Restricted Shares on an aggregate basis commencing after the
final Settlement Date for such Warrants. 
The Calculation Agent shall make reasonable adjustments to settlement
terms and 


 


15

















 


provisions under this
Confirmation to reflect a single Private Placement or Registration Settlement
for such aggregate Restricted Shares delivered hereunder.


 


(i)                                    If Company elects to settle the
Transaction pursuant to this clause (i) (a “Private
Placement Settlement”), then delivery of Restricted Shares by
Company shall be effected in private placement procedures with respect to such
Restricted Shares as are customary for an issuance of a similar size, all as
reasonably acceptable to Dealer; provided that
Company may not elect a Private Placement Settlement if, on the date of its
election, it has taken, or caused to be taken, any action that would make
unavailable either the exemption pursuant to Section 4(2) of the
Securities Act for the sale by Company to Dealer (or any affiliate designated
by Dealer) of the Restricted Shares or the exemption pursuant to Section 4(1) or
Section 4(3) of the Securities Act for resales of the Restricted
Shares by Dealer (or any such affiliate of Dealer).  The Private Placement Settlement of such
Restricted Shares shall include customary representations, covenants, blue sky
and other governmental filings and/or registrations, indemnities to Dealer, due
diligence rights (for Dealer or any designated buyer of the Restricted Shares
by Dealer), opinions and certificates, and such other documentation as is
customary for private placement agreements for an issuance of a similar size,
all reasonably acceptable to Dealer.  In
the case of a Private Placement Settlement, Dealer shall determine the
appropriate discount to the Share Termination Unit Price (in the case of
settlement of Share Termination Delivery Units pursuant to paragraph (j) above)
or any Settlement Price (in the case of settlement of Shares pursuant to Section 2
above) applicable to such Restricted Shares in a commercially reasonable manner
for an issuance of a similar size and appropriately adjust the number of such
Restricted Shares to be delivered to Dealer hereunder; provided
that in no event shall such number be greater than two times the Number of
Shares (the “Maximum Amount”).  Notwithstanding  the Agreement or this Confirmation, the date
of delivery of such Restricted Shares shall be the Exchange Business Day
following notice by Dealer to Company, of such applicable discount and the
number of Restricted Shares to be delivered pursuant to this clause (i).  For the avoidance of doubt, delivery of
Restricted Shares shall be due as set forth in the previous sentence and not be
due on the Share Termination Payment Date (in the case of settlement of Share
Termination Delivery Units pursuant to paragraph (j) above) or on the
Settlement Date for such Restricted Shares (in the case of settlement in Shares
pursuant to Section 2 above).


 


In the event Company shall not have delivered the full
number of Restricted Shares otherwise applicable as a result of the proviso
above relating to the Maximum Amount (such deficit, the “Deficit
Restricted Shares”), Company shall be continually obligated to
deliver, from time to time until the full number of Deficit Restricted Shares
have been delivered pursuant to this paragraph, Restricted Shares when, and to
the extent, that (i) Shares are repurchased, acquired or otherwise
received by Company 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) Company additionally authorizes any unissued Shares
that are not reserved for other transactions. 
Company 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 Restricted Shares to be delivered)
and promptly deliver such Restricted Shares thereafter.


 


(ii)                                 If Company elects to settle the
Transaction pursuant to this clause (ii) (a “Registration
Settlement”), then Company shall promptly (but in any event no later
than the beginning of the Resale Period) file and use its reasonable best
efforts to make effective under the Securities Act a registration statement or
supplement or amend an outstanding registration statement in form and substance
reasonably satisfactory to Dealer, to cover the resale of such Restricted
Shares in accordance with customary resale registration procedures for an
issuance of a similar size, including covenants, conditions, 


 


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representations, underwriting discounts (if
applicable), commissions (if applicable), indemnities due diligence rights,
opinions and certificates, and such other documentation as is customary for
equity resale underwriting agreements for an issuance of a similar size, all
reasonably acceptable to Dealer.  If
Dealer, in its sole reasonable discretion, is not satisfied with such procedures
and documentation Private Placement Settlement shall apply.  If Dealer is satisfied with such procedures
and documentation, it shall sell the Restricted Shares pursuant to such
registration statement during a period (the “Resale
Period”) commencing on the Exchange Business Day following delivery
of such Restricted Shares (which, for the avoidance of doubt, shall be (x) the
Share Termination Payment Date in case of settlement in Share Termination
Delivery Units pursuant to paragraph (j) above or (y) the Settlement
Date in respect of the final Expiration Date for all Daily Number of Warrants)
and ending on the earliest of (i) the Exchange Business Day on which
Dealer completes the sale of all Restricted Shares or, in the case of
settlement of Share Termination Delivery Units, a sufficient number of
Restricted Shares so that the realized net proceeds of such sales equals or
exceeds the Payment Obligation (as defined above), (ii) the date upon
which all Restricted Shares have been sold or transferred pursuant to Rule 144
(or similar provisions then in force) or Rule 145(d)(2) (or any
similar provision then in force) under the Securities Act and (iii) the
date upon which all Restricted Shares may be sold or transferred by a
non-affiliate pursuant to Rule 144 (or any similar provision then in force)
or Rule 145(d)(2) (or any similar provision then in force) under the
Securities Act.  If the Payment
Obligation exceeds the realized net proceeds from such resale, Company shall
transfer to Dealer by the open of the regular trading session on the Exchange
on the Exchange Trading Day immediately following the last day of the Resale
Period the amount of such excess (the “Additional Amount”)
in cash or in a number of Shares (“Make-whole Shares”)
in an amount that, based on the Settlement Price on the last day of the Resale
Period (as if such day was the “Valuation Date” for purposes of computing such
Settlement Price), has a dollar value equal to the Additional Amount.  The Resale Period shall continue to enable
the sale of the Make-whole Shares.  If
Company elects to pay the Additional Amount in Shares, the requirements and
provisions for Registration Settlement shall apply.  This provision shall be applied successively
until the Additional Amount is equal to zero. 
In no event shall Company deliver a number of Restricted Shares greater
than the Maximum Amount.


 


(iii)          Without limiting the generality of the
foregoing, Company agrees that any Restricted Shares delivered to Dealer, as
purchaser of such Restricted Shares, (i) may be transferred by and among
Dealer and its affiliates and Company shall effect such transfer without any
further action by Dealer and (ii) after the period of 6 months from the
Trade Date (or 1 year from the Trade Date if, at such time, informational
requirements of Rule 144(c) are not satisfied with respect to
Company) has elapsed after any Settlement Date for such Restricted Shares,
Company shall promptly remove, or cause the transfer agent for such Restricted
Shares to remove, any legends referring to any such restrictions or requirements
from such Restricted Shares upon request by Dealer (or such affiliate of
Dealer) to Company or such transfer agent, without any requirement for the
delivery of any certificate, consent, agreement, opinion of counsel, notice or
any other document, any transfer tax stamps or payment of any other amount or
any other action by Dealer (or such affiliate of Dealer).


 


If the Private Placement Settlement or the
Registration Settlement shall not be effected as set forth in clauses (i) or
(ii), as applicable, then failure to effect such Private Placement Settlement
or such Registration Settlement shall constitute an Event of Default with
respect to which Company shall be the Defaulting Party.


 


(l)                                      Limit on Beneficial Ownership. 
Notwithstanding any other provisions hereof, Dealer may
not exercise any Warrant hereunder or be entitled to take delivery of any Shares
deliverable hereunder, and Automatic Exercise shall
not apply with respect to any Warrant hereunder, to the extent (but only to the extent) that, after such
receipt of any Shares upon the exercise of such Warrant or otherwise hereunder,
(i) the Section 16 Percentage would exceed 7.5%, or (ii) the
Share Amount 


 


17

















 


would exceed the Post-Effective Limit.  Any purported delivery hereunder shall be
void and have no effect to the extent (but only to the extent) that, after such
delivery, the Section 16 Percentage would exceed 7.5%, or (ii) the
Share Amount would exceed the Post-Effective Limit. If any delivery owed to
Dealer hereunder is not made, in whole or in part, as a result of this
provision, Company’s obligation to make such delivery shall not be extinguished
and Company shall make such delivery as promptly as practicable after, but in
no event later than one Business Day after, Dealer gives notice to Company
that, after such delivery, (i) the Section 16 Percentage would not
exceed 7.5%, and (ii) the Share Amount would not exceed the Post-Effective
Limit.


 


(m)                                Share Deliveries. Company acknowledges and agrees that,
to the extent the holder of this Warrant is not then an affiliate and has not
been an affiliate for 90 days (it being understood that Dealer will not be
considered an affiliate under this paragraph solely by reason of its receipt of
Shares pursuant to this Transaction), and otherwise satisfies all holding
period and other requirements of Rule 144 of the Securities Act applicable
to it, any delivery of Shares or Share Termination Delivery Property hereunder
at any time after 6 months from the Trade Date (or 1 year from the Trade Date
if, at such time, informational requirements of Rule 144(c) are not
satisfied with respect to Company) shall be eligible for resale under Rule 144
of the Securities Act and Company agrees to promptly remove, or cause the transfer
agent for such Shares or Share Termination Delivery Property, to remove, any
legends referring to any restrictions on resale under the Securities Act from
the Shares or Share Termination Delivery Property.  Company further agrees that any delivery of
Shares or Share Termination Delivery Property prior to the date that is 6
months from the Trade Date (or 1 year from the Trade Date if, at such time,
informational requirements of Rule 144(c) are not satisfied with
respect to Company), may be transferred by and among Dealer and its affiliates
and Company shall effect such transfer without any further action by
Dealer.  Notwithstanding anything to the
contrary herein, Company agrees that any delivery of Shares or Share
Termination Delivery Property shall be effected by book-entry transfer through
the facilities of DTC, or any successor depositary, if at the time of delivery,
such class of Shares or class of Share Termination Delivery Property is in
book-entry form at DTC or such successor depositary.  Notwithstanding anything to the contrary
herein, to the extent the provisions of Rule 144 of the Securities Act or
any successor rule are amended, or the applicable interpretation thereof
by the Securities and Exchange Commission or any court change after the Trade
Date, the agreements of Company herein shall be deemed modified to the extent
necessary, in the opinion of outside counsel of Company, to comply with Rule 144
of the Securities Act, as in effect at the time of delivery of the relevant
Shares or Share Termination Delivery Property.


 


(n)                                  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 the other 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.


 


(o)                                  Tax Disclosure. 
Effective from the date of commencement of discussions concerning the
Transaction, Company 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 Company
relating to such tax treatment and tax structure.


 


(p)                                  Maximum Share Delivery. 
Notwithstanding any other provision of this Confirmation or the
Agreement, in no event will Company be required to deliver more than the
Maximum Amount of Shares in the aggregate to Dealer in connection with this
Transaction, subject to the provisions regarding Deficit Restricted Shares


 


(q)                                  Right to Extend.  Dealer may postpone, in whole or in part, any
Expiration Date or any other date of valuation or delivery with respect to some
or all of the relevant Warrants (in which event the Calculation Agent shall
make appropriate adjustments to the Daily Number of Warrants with 


 


18

















 


respect to one or more Expiration Dates) if Dealer
determines, in its commercially reasonable judgment, 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 Issuer or an affiliated purchaser of Issuer, be in compliance with
applicable legal, regulatory or self-regulatory requirements, or with related
policies and procedures applicable to Dealer.


 


(r)                                     Status of Claims in Bankruptcy.   Dealer acknowledges and agrees that this
Confirmation is not intended to convey to Dealer rights against Company with
respect to the Transaction that are senior to the claims of common stockholders
of Company in any United States bankruptcy proceedings of Company; 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 Company 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.


 


(s)                                   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.


 


(t)                                     Delivery or
Receipt of Cash. For the avoidance of doubt, other than receipt of the
Premium by Company, nothing in this Confirmation shall be interpreted as
requiring Company to cash settle this Transaction, except in circumstances
where such cash settlement is within Company’s control (including, without
limitation, where Company elects to deliver or receive cash, where Company
fails timely to elect the Share Termination Alternative, or where Company has
made Private Placement Settlement unavailable due to the occurrence of events
within its control ) or in those circumstances in which holders of the Shares
would also receive cash.


 


(u)           Early
Unwind. 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 Company 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
Company 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 Company 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 Company of such amount and Company shall pay
such amount in immediately available funds on the Early Unwind Date.  Each of Dealer and Company 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.


 


(v)                                  Payment
by Dealer. In the event that (i) an Early Termination
Date occurs or is designated with 


 


19

















 


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, Dealer owes to Company pursuant to Section 6(d)(ii) of
the Agreement an amount calculated under Section 6(e) of the
Agreement, or (ii) Dealer owes to Company, 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 Company.  The Agent will furnish to Company 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.


 


20

















 


Company 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: