Exhibit 10.5


 


EXECUTION VERSION


 


JPMorgan Chase Bank, National Association


P.O. Box 161


60 Victoria Embankment


London EC4Y 0JP


England


 


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:
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
JPMorgan  Chase Bank, National Association,
London Branch (“Dealer”) as of the Trade Date
specified below (the “Transaction”).  This letter agreement constitutes a
“Confirmation” as referred to in the ISDA Master Agreement specified
below.  This Confirmation shall replace any
previous agreements and serve as the final documentation for this Transaction.


 


The
definitions and provisions contained in the 2002 ISDA Equity Derivatives
Definitions (the “Equity Definitions”),
as published by the International Swaps and Derivatives Association, Inc.
(“ISDA”), are incorporated into this
Confirmation. In the event of any inconsistency between the Equity Definitions
and this Confirmation, this Confirmation shall govern.  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:


 


JPMorgan Chase Bank, National Association 

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

Main Office 1111 Polaris Parkway, Columbus, Ohio 43271

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


Registered Branch Office 125 London Wall, London EC2Y 5AJ


Authorised and regulated by the Financial Services Authority


 

















 


General Terms:


 




	
  Trade Date:

  	
   

  	
  May 28, 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 

  






 


5

















 




	
   

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  
	
  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

  






 


6

















 




	
  Determining Party:

  	
   

  	
  Dealer for all applicable Extraordinary Events

  
	
   

  	
   

  	
   

  
	
  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:


 


[       ]


ABA:  [       ]


Favour: [       ]


A/C:  [       ]


 


Account for delivery of Shares to 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


 


JPMorgan Chase Bank, National Association


London
Branch


P.O. Box
161


60
Victoria Embankment


London
EC4Y 0JP


England


 


7. Notices: For purposes of this Confirmation:


 


(a)                                  Address for
notices or communications to 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:


 


JPMorgan Chase Bank,
National Association


4 New York Plaza, Floor 18


New York, NY  10004-2413


Attention: 
Mariusz
Kwasnik


Title: 
Operations Analyst


EDG Corporate Marketing


Telephone No:               (212) 623-7223


Facsimile No:                       (212) 623-7719


 


8.  Representations and
Warranties of 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 “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.


 


8

















 


(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:


 


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 


 


9

















 


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 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, other than the distribution of USD 120,000,000
principal amount of 4.375% convertible senior notes due 2014 being made on the
date hereof.  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 


 


10

















 


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


 


(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, 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


 


11
















 


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.


 


(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 


 


12

















 


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 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 


 


13

















 


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
  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 

  



 


14

















 


	
   

  	
   

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


 


15

















 


(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, 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 


 


16

















 


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 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 


 


17

















 


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 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 


 


18

















 


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 “Underwritten 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 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 


 


19

















 


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.


 


20

















 


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


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Accepted and confirmed as of the Trade Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Take-Two Interactive
  Software, Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
  Authorized
  Signatory

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
						



 


JPMorgan Chase Bank, National Association 


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


Main Office 1111 Polaris Parkway, Columbus, Ohio 43271


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


Registered Branch Office 125 London Wall, London EC2Y 5AJ


Authorised and regulated by the Financial Services Authority