JURISDICTION.
4
8.
ENTIRE AGREEMENT.
THIS AGREEMENT CONTAINS THE ENTIRE
UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY
BE AMENDED ONLY BY AN AGREEMENT IN WRITING EXECUTED BY THE PARTIES HERETO.
9.
NOTICES.
ALL NOTICES, CONSENTS, REQUESTS, INSTRUCTIONS,
APPROVALS AND OTHER COMMUNICATIONS PROVIDED FOR HEREIN AND ALL LEGAL PROCESS IN
REGARD HERETO SHALL BE IN WRITING AND SHALL BE DEEMED VALIDLY GIVEN, MADE OR
SERVED, IF (A) GIVEN BY TELECOPY, WHEN SUCH TELECOPY IS TRANSMITTED TO THE
TELECOPY NUMBER SET FORTH BELOW AND THE APPROPRIATE CONFIRMATION IS RECEIVED OR
(B) IF GIVEN BY ANY OTHER MEANS, WHEN ACTUALLY RECEIVED DURING NORMAL BUSINESS
HOURS AT THE ADDRESS SPECIFIED IN THIS SUBSECTION:
if to the Company:
Take-Two
Interactive Software, Inc.
622 Broadway
New York, NY 10012
Attention: General Counsel
Facsimile: (646) 536-2926
with a copy to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Adam M. Turteltaub
Facsimile: (212) 728-9129
if to the Icahn Group:
Icahn Capital LP
767 Fifth Avenue, 47th Floor
New York, NY 10153
Attention:
Marc Weitzen
Facsimile:
(212) 688-1158
10.
SEVERABILITY.
IF AT ANY TIME SUBSEQUENT TO THE DATE HEREOF, ANY
PROVISION OF THIS AGREEMENT SHALL BE HELD BY ANY COURT OF COMPETENT JURISDICTION
TO BE ILLEGAL, VOID OR UNENFORCEABLE, SUCH PROVISION SHALL BE OF NO FORCE AND
EFFECT, BUT THE ILLEGALITY OR UNENFORCEABILITY OF SUCH PROVISION SHALL HAVE NO
EFFECT UPON THE LEGALITY OR ENFORCEABILITY OF ANY OTHER PROVISION OF THIS
AGREEMENT.
11.
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE
COUNTERPARTS (INCLUDING BY FACSIMILE OR PDF) WHICH TOGETHER SHALL CONSTITUTE A
SINGLE AGREEMENT.
5
12.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL NOT BE ASSIGNABLE BY
ANY OF THE PARTIES TO THIS AGREEMENT BUT SHALL BE BINDING ON SUCCESSORS OF THE
PARTIES HERETO.
13.
NO THIRD PARTY BENEFICIARIES.
THIS AGREEMENT IS SOLELY FOR THE
BENEFIT OF THE PARTIES HERETO AND THE ICAHN SUGGESTED NOMINEES AND IS NOT
ENFORCEABLE BY ANY OTHER PERSONS.
14.
FEES AND EXPENSES.
NEITHER THE COMPANY, ON THE ONE HAND, NOR THE
ICAHN GROUP, ON THE OTHER HAND, WILL BE RESPONSIBLE FOR ANY FEES OR EXPENSES OF
THE OTHER IN CONNECTION WITH THIS AGREEMENT.
15.
INTERPRETATION AND CONSTRUCTION.
EACH OF THE PARTIES HERETO
ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY COUNSEL OF ITS CHOICE THROUGHOUT
ALL NEGOTIATIONS THAT HAVE PRECEDED THE EXECUTION OF THIS AGREEMENT, AND THAT IT
HAS EXECUTED THE SAME WITH THE ADVICE OF SAID INDEPENDENT COUNSEL.
EACH PARTY
AND ITS COUNSEL COOPERATED AND PARTICIPATED IN THE DRAFTING AND PREPARATION OF
THIS AGREEMENT AND THE DOCUMENTS REFERRED TO HEREIN, AND ANY AND ALL DRAFTS
RELATING THERETO EXCHANGED AMONG THE PARTIES SHALL BE DEEMED THE WORK PRODUCT OF
ALL OF THE PARTIES AND MAY NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF ITS
DRAFTING OR PREPARATION.
ACCORDINGLY, ANY RULE OF LAW OR ANY LEGAL DECISION
THAT WOULD REQUIRE INTERPRETATION OF ANY AMBIGUITIES IN THIS AGREEMENT AGAINST
ANY PARTY THAT DRAFTED OR PREPARED IT IS OF NO APPLICATION AND